Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the New Mexico Meadow Jumping Mouse, 14263-14325 [2016-05912]

Download as PDF Vol. 81 Wednesday, No. 51 March 16, 2016 Part III Department of the Interior mstockstill on DSK4VPTVN1PROD with RULES3 Fish and Wildlife Service 50 CFR Part 17 Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the New Mexico Meadow Jumping Mouse; Final Rule VerDate Sep<11>2014 19:08 Mar 15, 2016 Jkt 238001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\16MRR3.SGM 16MRR3 14264 Federal Register / Vol. 81, No. 51 / Wednesday, March 16, 2016 / Rules and Regulations DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [Docket No. FWS–R2–ES–2013– 0014;4500030114] RIN 1018–AZ32 Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the New Mexico Meadow Jumping Mouse Fish and Wildlife Service, Interior. ACTION: Final rule. AGENCY: We, the U.S. Fish and Wildlife Service (Service), designate critical habitat for the New Mexico meadow jumping mouse (Zapus hudsonius luteus) under the Endangered Species Act of 1973, as amended (Act). In total, we designate an area of approximately 5,657 hectares (13,973 acres) along 272.4 kilometers (169.3 miles) of flowing streams, ditches, and canals as critical habitat in eight units within Colfax, Mora, Otero, Sandoval, and Socorro Counties in New Mexico; Las Animas, Archuleta, and La Plata Counties in Colorado; and Greenlee and Apache Counties in Arizona. The effect of this rule is to designate critical habitat for the New Mexico meadow jumping mouse under the Act. DATES: This rule is effective on April 15, 2016. ADDRESSES: This final rule is available on the Internet at http://www.fws.gov/ southwest/es/NewMexico/index.cfm and at http://www.regulations.gov under Docket No. FWS–R2–ES–2013–0014. Comments and materials we received, as well as some supporting documentation used in preparing this final rule, are available for public inspection at http:// www.regulations.gov. All of the comments, materials, and documentation that we considered in this rulemaking are available by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, New Mexico Ecological Services Field Office, 2105 Osuna NE., Albuquerque, NM 87113; telephone 505–346–2525; or facsimile 505–346– 2542. The coordinates or plot points or both from which the critical habitat maps are generated are included in the administrative record for this rulemaking and are available at http://www.fws.gov/southwest/es/ NewMexico/, at http:// www.regulations.gov under Docket No. FWS–R2–ES–2013–0014, and at the mstockstill on DSK4VPTVN1PROD with RULES3 SUMMARY: VerDate Sep<11>2014 19:08 Mar 15, 2016 Jkt 238001 New Mexico Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT). Any additional tools or supporting information that we may develop for this rulemaking will also be available at the Fish and Wildlife Service Web site and Field Office set out above, and may also be included at http://www.regulations.gov. 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 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: Executive Summary Why we need to publish a rule. This document is a final rule to designate critical habitat for the endangered New Mexico meadow jumping mouse. Under the 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. The basis for our action. On June 20, 2013 (78 FR 37363), we proposed to list the New Mexico meadow jumping mouse (jumping mouse) under the Act as an endangered species; that same day, we also proposed to designate critical habitat for the jumping mouse (78 FR 37328). Subsequently, we listed the jumping mouse as an endangered species (79 FR 33119; June 10, 2014). This is a final rule to designate critical habitat for the jumping mouse. 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. This final rule will designate critical habitat for the endangered New Mexico meadow jumping mouse. 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 jumping mouse. We are designating as critical habitat for the subspecies approximately 5,657 hectares (13,973 acres) along 272.4 kilometers (169.3 miles) of flowing streams, ditches, and canals as critical habitat in eight units within Colfax, Mora, Otero, Sandoval, PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 and Socorro Counties in New Mexico; Las Animas, Archuleta, and La Plata Counties in Colorado; and Greenlee and Apache Counties in Arizona. We have prepared economic and environmental analyses of the designation of critical habitat. In order to consider economic impacts, we prepared an analysis of the economic impacts of the critical habitat designation and related factors. We also prepared an environmental analysis of the designation of critical habitat in order to evaluate whether there would be any significant environmental impacts as a result of the critical habitat designation. We announced the availability of the draft economic analysis and the draft environmental assessment in the Federal Register on April 8, 2014 (79 FR 19307), allowing the public to provide comments on our analyses. We have incorporated the comments and have completed the final economic analysis and final environmental analysis for this final designation. Peer review and public comment. We sought comments from four independent specialists to ensure that our designation is based on scientifically sound data and analyses. We obtained opinions from three individuals with scientific expertise to review our technical assumptions and analysis, and to determine whether or not we had used the best available scientific information. Two of these peer reviewers supported the redundancy of habitat proposed for designation, but were concerned about the viability of existing jumping mouse populations, the short length of some units proposed for designation, and potential for the subspecies’ recovery. These peer reviewers provided additional information, clarifications, and suggestions to improve this final rule. Information we received from peer review is incorporated into this final designation. We also considered all comments and information we received from the public during our two open comment periods, which were open for a total of 90 days. We also held four public information meetings with interested stakeholders. Previous Federal Actions Previous Federal actions for the jumping mouse are described in the Previous Federal Actions section of the final listing rule published on June 10, 2014 (79 FR 33119). We published a notice of availability of the draft economic analysis and the draft environmental assessment in the Federal Register on April 8, 2014 (79 FR 19307), allowing the public to provide E:\FR\FM\16MRR3.SGM 16MRR3 Federal Register / Vol. 81, No. 51 / Wednesday, March 16, 2016 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES3 comments on our analyses. Details regarding the comment periods on the proposed rulemaking are provided below. It is our intent to discuss below only those topics directly relevant to the designation of critical habitat for the jumping mouse. For a thorough assessment of the subspecies’ biology and natural history, including limiting factors and subspecies resource needs, please refer to the Final New Mexico Meadow Jumping Mouse Species Status Assessment Report (SSA Report; Service 2014, entire), available online at http://www.regulations.gov under Docket No. FWS–R2–ES–2013–0023 and the final listing rule published on June 10, 2014 (79 FR 33119). Summary of Comments and Recommendations We requested written comments from the public on the proposed designation of critical habitat for the jumping mouse during two comment periods. The first comment period associated with the publication of the proposed rule (78 FR 37328) opened on June 20, 2013, and closed on August 19, 2013. A legal notice inviting general public comment was published in the Albuquerque Journal on June 27, 2013. We did not receive any requests for a public hearing within 45 days after the date of the proposed rule being published in the Federal Register. We also requested comments on the proposed critical habitat designation and associated draft economic analysis and draft environmental assessment during a comment period that opened April 8, 2014, and closed on May 8, 2014 (79 FR 19307). We contacted appropriate Federal and State agencies, tribes, scientific experts and organizations, and other interested parties and invited them to comment on the proposed rule and associated draft economic analysis and draft environmental assessment. On August 15, 2013, we also held an informational meeting in Durango, Colorado, after receiving requests from interested parties. Similarly, we held ˜ informational meetings in Canon, New Mexico, on April 24, 2014; Durango, Colorado on April 28, 2014; and Alamogordo, New Mexico, on May 28, 2014. During the two open comment periods, we received 63 comment letters addressing the proposed critical habitat designation, the draft economic analysis, or the draft environmental assessment. Comments we received are grouped into general issues specifically relating to the proposed critical habitat designation for the jumping mouse. All VerDate Sep<11>2014 19:08 Mar 15, 2016 Jkt 238001 substantive information provided during both comment periods has either been incorporated directly into this final designation or the SSA Report, or is addressed below. Peer Review Comments In accordance with our peer review policy published on July 1, 1994 (59 FR 34270), we solicited expert opinion from four knowledgeable individuals with scientific expertise and familiarity with the subspecies, the geographic region in which the subspecies occurs, and conservation biology principles. We received responses from three of the four peer reviewers on the proposed designation of critical habitat. We reviewed all comments we received from the peer reviewers for substantive issues and new information regarding critical habitat for the jumping mouse. These peer reviewers provided additional information, clarifications, and suggestions to improve this final rule. (1) Comment: The Service should consider expanding the proposed critical habitat to provide reaches of critical habitat that are at least 25 kilometers (km) (15.5 miles (mi)) in length. A minimum length of 9 km (6 mi) of critical habitat may not be adequate to support a resilient population because many threats (e.g., wildfire, drought, and recreation) are likely to impact entire sections of stream. The average length of proposed critical habitat units was 12.2 km (7.6 mi) (range of 3.7 to 23.3 km; 2.3 to 14.5 mi). Small reaches (i.e., <25 km (15.5 mi)) may not provide resiliency. Notably, the failure of surveys in 2013 to verify persistence of the jumping mouse at Bosque del Apache National Wildlife Refuge (NWR), one of the largest areas proposed as critical habitat (21.1 km (13.1 mi)), suggests that critical habitat units at the upper end of the length designation used by the Service are not large enough to prevent extinction. Consequently, it is likely that all units should be greater than 25 km (15.5 mi) to provide for resiliency. Other public commenters suggested we shorten or exclude areas of the proposed critical habitat units. Our Response: In considering the best available data regarding the area needed for maintaining resilient populations of adequate size with the ability to endure adverse events (such as floods or wildfire), we estimate that resilient populations of jumping mice need connected areas of suitable habitat in the range of at least 27.5 to 73.2 hectares (ha) (68 to 181 acres (ac)), along 9 to 24 km (5.6 to 15 mi) of flowing streams, ditches, or canals. The minimum area PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 14265 needed is given as a range due to the uncertainty of an absolute minimum and because local conditions within drainages will vary. In our proposed critical habitat designation and this final designation, we selected upstream and downstream boundaries that would avoid including highly degraded areas that are not likely restorable, areas that were permanently dewatered or permanently developed (i.e., natural vegetation removed), or areas in which suitable habitat no longer existed and was not likely to be restored. Consequently, many areas upstream or downstream of designated critical habitat are currently unoccupied and unusable by the jumping mouse because they lack continuous areas of suitable habitat. Although these degraded or dewatered areas may include historic jumping mouse capture locations, they do not meet the definition of critical habitat under the Act (16 U.S.C. 1531 et seq.) because they were neither occupied at the time of listing nor are they considered essential to the conservation of the subspecies. Consequently, we continue to conclude that current jumping mouse populations need connected areas of suitable habitat along at least 9 to 24 km (5.6 to 15 mi) of continuous suitable habitat to support viable populations of jumping mice with a high likelihood of long-term persistence. This distribution and amount of suitable habitat would allow for multiple subpopulations of jumping mice to exist along drainages and would provide for sources of recolonization if some areas where extirpated due to disturbances. We incorporated the best scientific and commercial information available into this final rule, including information regarding all locations where the jumping mouse has been trapped since 2005, and other areas outside of the geographic area occupied by the subspecies. For example, the jumping mouse is not extirpated from the Bosque del Apache NWR; they were detected during surveys in 2014 (Frey 2013, entire; Service 2013, entire; 2013a, entire; 2013b, entire; Service 2014a, entire). In the SSA Report, we found that conservation of the jumping mouse should preferentially focus on restoration of habitats adjacent to occupied areas to expand all remaining populations (Malaney et al. 2012, p. 10). If, in the future, we find that restoration of primary constituent elements, particularly seasonally perennial water, is successful, further revision of critical habitat may be appropriate. In addition, we recognize that critical habitat designated at a particular point in time may not include all of the E:\FR\FM\16MRR3.SGM 16MRR3 mstockstill on DSK4VPTVN1PROD with RULES3 14266 Federal Register / Vol. 81, No. 51 / Wednesday, March 16, 2016 / Rules and Regulations habitat areas that we may later determine are necessary for the recovery of the subspecies. The designation of critical habitat is only one component of recovery for a 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 subspecies; to meet the requirements of the Act, the Service determined areas that were occupied by the subspecies at the time of listing that contained the physical and biological features essential to the conservation of the jumping mouse and unoccupied areas that are essential for its conservation. (2) Comment: Unit 1 (Sugarite Canyon) should be expanded to include the entire watershed of Chicorica Creek. Our Response: The entire watershed of Chicorica Creek does not meet the definition of critical habitat for this subspecies because the entire watershed was neither occupied at the time of listing nor is it essential to the conservation of the subspecies. 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. We are designating as critical habitat all areas where the jumping mouse is known to occur. 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. We are designating 13.0 km (8.1 mi) in the unit, which is within the range of at least 27.5 to 73.2 ha (68 to 181 ac), along 9 to 24 km (5.6 to 15 mi) of flowing streams, ditches, or canals needed for resilient populations of jumping mice (see our response to Comment 1, above). This provides the needed size and connectivity of suitable habitat of the jumping mouse in Sugarite Canyon for population redundancy and resiliency. The areas upstream and downstream of the 13.0 km (8.1 mi) in the unit do not contain suitable habitat, nor are these areas restorable. They are highly degraded areas that lack dense herbaceous vegetation, and are not likely to be restored to suitable habitat (see our response to Comment 1, above). VerDate Sep<11>2014 19:08 Mar 15, 2016 Jkt 238001 (3) Comment: Unit 2 (Coyote Creek) should include the Mora River because there are two historic locations. Our Response: The Mora River does not meet the definition of critical habitat for this subspecies because it was neither occupied at the time of listing nor is it essential to the conservation of the subspecies (see our response to Comment 2, above). No recent surveys (i.e., post 2005) have been conducted in the Mora River area (Frey 2008c, p. 37); therefore, the best available scientific and commercial data, the survey data from post 2005, indicate the Mora River is unoccupied. We are designating 11.8 km (7.4 mi) in Unit 2 to provide the needed size and connectivity of suitable habitat of the jumping mouse within Coyote Creek for population redundancy and resiliency. This size is within the range of at least 27.5 to 73.2 ha (68 to 181 ac), along 9 to 24 km (5.6 to 15 mi) of flowing streams, ditches, or canals, needed for resilient populations of jumping mice (see our response to Comment 1, above). We did not propose or include the Mora River as critical habitat because it is not perennial and does not contain suitable habitat between Guadalupita (a site along Coyote Creek within Unit 2) and the historic collection site on the Mora River (i.e., sewage pond) (Frey 2008c, p. 37). The area is not essential to the conservation of the subspecies because it no longer contains perennial water and is therefore unsuitable and not restorable. (4) Comment: Subunit 3A (San Antonio Creek, in Unit 3—Jemez Mountains) should be expanded to include Redondo Creek and San Antonio Creek on the Valles Caldera National Preserve because there is a historical location on the preserve and potentially suitable habitat in the vicinity of the junction of these two creeks. Our Response: Redondo Creek and San Antonio Creek on the Valles Caldera National Preserve do not meet the definition of critical habitat for this subspecies because the areas were neither occupied at the time of listing nor are the areas essential to the conservation of the subspecies. They are highly degraded areas that lack dense herbaceous vegetation, and are not likely to be restored to suitable habitat (see our response to Comment 1, above). Although Frey (2005a, p. 6) reported a jumping mouse historical record from the base of Redondo Peak in a beaver pond, possibly in the vicinity of Redondo Creek, the record was based on a personal communication of W. Whitford in the 1970s, and there is no verifiable specimen with a specific PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 capture location. The presence of beavers creates diverse wetland communities that support the dense riparian herbaceous vegetation utilized by jumping mice (see section 5.1.6 of the SSA Report (Service 2014)). There are no longer any established beaver populations within the Valles Caldera National Preserve to maintain suitable habitat. In recent surveys, no jumping mice have been captured on the Valles Caldera National Preserve (VCNP 2012, pp. 20–21), such that the best available scientific and commercial information indicates the area is unoccupied. We are designating critical habitat within Subunit 3A starting from the northern part of San Antonio Creek where it exits the boundary of the Valles Caldera National Preserve and follows the creek 11.5 km (7.1 mi) where it meets private land immediately downstream of the San Antonio Campground, which would provide the needed size and connectivity of suitable habitat of the jumping mouse in the Jemez Mountains and provide population redundancy and resiliency. This size is within the range of at least 27.5 to 73.2 ha (68 to 181 ac), along 9 to 24 km (5.6 to 15 mi) of flowing streams, ditches, or canals needed for resilient populations of jumping mice (see our response to Comment 1, above). (5) Comment: Subunit 3B (Rio Cebolla, in Unit 3—Jemez Mountains) should be expanded to include additional U.S. Forest Service (Forest Service) lands within Lake Fork Canyon, a major tributary to the Rio Cebolla and the area upstream of Hay Canyon to Forest Road 257. Our Response: We did not expand the designation to include the tributary in Lake Fork Canyon or the area upstream of Hay Canyon because these areas were neither occupied at the time of listing nor are the areas essential to the conservation of the subspecies. In 2005, two jumping mice were captured at the confluence of Lake Fork Canyon and the Rio Cebolla within the livestock and vehicle exclosure that contained welldeveloped riparian habitat dominated by sedges, diverse forbs, grasses, and a small patch of alder (Frey 2005a, p. 27). However, no jumping mice were captured further upstream along the tributary of Lake Fork Canyon and the area did not contain perennial water or suitable habitat. Without suitable habitat and a capture record post 2005, the area is not considered occupied at the time of listing. Water is intermittent through the Lake Fork Canyon, and riparian areas are isolated (Frey 2007b, p. 12). They are highly degraded areas that lack dense herbaceous vegetation, and are not likely to be restored to E:\FR\FM\16MRR3.SGM 16MRR3 mstockstill on DSK4VPTVN1PROD with RULES3 Federal Register / Vol. 81, No. 51 / Wednesday, March 16, 2016 / Rules and Regulations suitable habitat (see our response to Comment 1, above). Without perennial water in this stretch, suitable habitat is unlikely to be restored because the dense vegetation needed by the subspecies will not be supported without sufficient water. Therefore, the area is not considered essential to the conservation of the subspecies. The area upstream of Hay Canyon, including McKinney Pond, contains poorly developed riparian habitat that is currently unsuitable for the jumping mouse (Frey 2007b, pp. 9–10). Additionally, deer mice (Peromyscus maniculatus) dominated the small mammal community, suggesting a disturbed or degraded riparian system (Frey 2007b, pp. 9–10). Further, there are no historic capture locations in the area upstream of Hay Canyon. These additional areas are outside the historical range of the subspecies. The areas we have identified as critical habitat, if restored and occupied, are sufficient to support conservation; therefore, designating areas outside of the historical range is not necessary. We are designating critical habitat within Subunit 3B starting from an old beaver dam about 0.6 km (0.4 mi) north of Hay Canyon, and following the creek about 20.7 km (12.9 mi) downstream where it meets the Rio de las Vacas, which would provide the needed size and connectivity of suitable habitat of the jumping mouse in the Jemez Mountains and provide population redundancy and resiliency. This subunit contains all of the current and historic locations for the jumping mouse along the Rio Cebolla (Frey 2005a, entire; 2007b, entire). Without suitable habitat and without post-2005 survey records we consider the areas above Hay Canyon and along Lake Fork Canyon to be unoccupied. Further, these areas are not considered essential to the conservation of the subspecies for the reasons stated above. The size of the subunit is within the range of at least 27.5 to 73.2 ha (68 to 181 ac), along 9 to 24 km (5.6 to 15 mi) of flowing streams, ditches, or canals needed for resilient populations of jumping mice (see our response to Comment 1, above). (6) Comment: Subunit 3C (Rio de las Vacas, in Unit 3—Jemez Mountains) should be expanded to include the Rito ˜ Penas Negras, a major tributary to the Rio de las Vacas, because there are at least three historical jumping mouse locations in the area. Our Response: We did not expand the ˜ designation to include the Rito Penas Negras because the area was neither occupied at the time of listing nor is it essential to the conservation of the species. This area contains poorly VerDate Sep<11>2014 19:08 Mar 15, 2016 Jkt 238001 developed riparian habitat that is unsuitable for the jumping mouse and is not likely restorable (Frey 2005a, pp. 29–30). Without suitable habitat and without post-2005 survey records we consider this area unoccupied. Further, without restorable habitat the area is not considered essential to the conservation of the subspecies. The area lacks dense herbaceous vegetation, and is not likely to be restored to suitable habitat (see our response to Comment 1, above). In this subunit, we are designating 454 ha (1,122 ac) along 23.3 km (14.5 mi) of restorable habitat that would provide the needed size and connectivity of suitable habitat for the jumping mouse in the Jemez Mountains and support population redundancy and resiliency. This size is within the range of at least 27.5 to 73.2 ha (68 to 181 ac), along 9 to 24 km (5.6 to 15 mi) of flowing streams, ditches, or canals needed for resilient populations of jumping mice (see our response to Comment 1, above). (7) Comment: Unit 3 (Jemez Mountains) should be expanded to include a new subunit in Virgin Canyon, a major tributary to the Rio Guadalupe, because there is a historic (1989) jumping mouse location in the area. Our Response: We did not expand the designation to include the Virgin Canyon because the area was neither occupied at the time of listing nor is it essential to the conservation of the subspecies. Although Frey (2005a, pp. 6, 25–26) reported a jumping mouse historical record from the Virgin Canyon, the specific capture location is unknown and could have been anywhere from the drainage. The area was surveyed in 2005, and no jumping mice were captured, and there are no current records indicating the subspecies is present (Frey 2005a, pp. 13, 24–25). Consequently, the area is not considered occupied at the time of listing. In 2005, there was little to no suitable riparian habitat or wet meadows along the creek (Frey 2005a, p. 25), and the area is not likely restorable. The area lacks dense herbaceous vegetation, and is not likely to be restored to suitable habitat (see our response to Comment 1, above). Consequently, the area is not considered essential to the conservation of the subspecies. (8) Comment: A new unit should be added for the 1932 capture records from Tularosa Creek near Mescalero, Otero County, New Mexico. Our Response: We did not expand the designation to include Tularosa Creek because the area was neither occupied at the time of listing nor is it essential to the conservation of the subspecies. PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 14267 Frey (2008c, p. 35) reported a historic record from 1932 along Tularosa Creek. In 2006, Frey (2008c, p. 35) indicated that the general area of the 1932 capture locations of the jumping mouse along Tularosa Creek may have potentially suitable habitat. However, since then, the stream, marshes, and wet meadows have dried (Sivinski 2012, pp. 18–21) and the area is dominated by invasive plants (Sivinski 1996, p. 3; 2009a, p. 2). Without suitable habitat and a capture record post 2005, the area is not considered occupied at the time of listing. Suitable habitat is unlikely to be restored because without perennial water in this stretch the area will not support the dense vegetation needed by the subspecies. The area lacks dense herbaceous vegetation, and is not likely to be restored to suitable habitat (see our response to Comment 1, above). Therefore, the area is not essential to the conservation of the subspecies. (9) Comment: In 2013, water flowed downstream of the Lincoln National Forest Boundary of Subunit 4A (Silver Springs, in Unit 4—Sacramento Mountains); therefore, the subunit should be expanded downstream at least 1.9 km (1.2 mi) to include this potential and recoverable habitat on the Mescalero Apache Reservation. Our Response: We did not expand the designation to include any lands on the Mescalero Apache Reservation because the area was neither occupied at the time of listing nor is it essential to the conservation of the subspecies. There are no records of jumping mouse from post 2005. The flow downstream of the Lincoln National Forest boundary is variable, with water flowing onto the Mescalero Apache Reservation some years and remaining dry other years (Frey 2005a, p. 31). Moreover, the stream channel downstream of the boundary is incised, and suitable jumping mouse habitat no longer exists. Without perennial water flow, the area frequently dries and will not support the dense vegetation needed by the subspecies, and it is not likely to be restored. The area lacks dense herbaceous vegetation, and is not likely to be restored to suitable habitat (see our response to Comment 1, above). (10) Comment: Subunit 4B (Upper ˜ Penasco, in Unit 4—Sacramento Mountains) should be expanded to include about 4.0 km (2.5 mi) of Water Canyon upstream from the confluence ˜ with the Rio Penasco. This stretch of stream had water present during 2013. There is also restorable habitat above Forest Road 164 that should be included as critical habitat. Our Response: We are designating 136 ha (335 ac) along 6.4 km (4.0 mi) of E:\FR\FM\16MRR3.SGM 16MRR3 mstockstill on DSK4VPTVN1PROD with RULES3 14268 Federal Register / Vol. 81, No. 51 / Wednesday, March 16, 2016 / Rules and Regulations restorable habitat. Subunit 4B begins at the junction of Forest Service Road 164 and New Mexico Highway 6563 and ˜ follows the Rio Penasco drainage downstream (or above Forest Service Road 164) to about 2.4 km (1.5 mi) below Bluff Spring at the boundary of private and Forest Service lands. Therefore, the subunit already includes the restorable habitat above Forest Road 164. We did not expand the designation to include Water Canyon, however, because it was neither occupied at the time of listing nor is it considered essential to the conservation of the subspecies. The water in these additional areas is variable, flowing some years and dry other years (Frey 2005a, p. 33). Moreover, suitable jumping mouse habitat no longer exists and is not likely to be restored because the area frequently dries and will not support the dense vegetation needed by the subspecies. The area lacks dense herbaceous vegetation, and is not likely to be restored to suitable habitat (see our response to Comment 1, above). (11) Comment: Subunit 4D (Wills Canyon, in Unit 4—Sacramento Mountains) should be expanded to include the tributary in Hubbell Canyon. Extending the subunit to the ˜ Rio Penasco could provide important connectivity with Subunit 4C (Middle ˜ Penasco, in Unit 4—Sacramento Mountains). Our Response: We did not expand the designation to include Hubble Canyon or the additional areas downstream of Subunit 4D because they were neither occupied at the time of listing nor are they essential to the conservation of the subspecies. Although it is possible that the jumping mouse historically existed in Hubble Canyon, there are no historic records and recent surveys did not detect the subspecies (Forest Service 2012h, p. 2). The area downstream of Subunit 4D to the confluence of the Rio ˜ Penasco was not included because the stream channel is eroded, riparian habitat is poorly developed, and water is intermittent (Frey 2005a, p. 34). Since the area frequently dries, it is not likely to be restored because it will not support the dense vegetation needed by the subspecies. The area lacks dense herbaceous vegetation, and is not likely to be restored to suitable habitat (see our response to Comment 1, above). (12) Comment: Subunit 4E (Agua Chiquita Canyon, in Unit 4— Sacramento Mountains) should be expanded to include additional areas downstream to the Town of Weed, including the tributaries in Hay and Spring Canyons. VerDate Sep<11>2014 19:08 Mar 15, 2016 Jkt 238001 Our Response: We did not expand the designation to include Hay or Spring Canyons or the additional area downstream of Subunit 4E to Weed because they were neither occupied at the time of listing nor are they essential to the conservation of the subspecies. The area downstream of Subunit 4E to Weed was not included because riparian habitat is nearly absent and the water is intermittent (Frey 2005a, pp. 35–36). In Hay Canyon, there is little to no riparian habitat. In Spring Canyon the streambed is dry and eroded with no riparian vegetation in one historic capture location. In another historic location within Spring Canyon, water only flowed for about 0.16 km (0.1 mi) before ceasing, and riparian habitat was only a narrow strip 2.5 to 3 meters (m) (8.2 to 9.8 feet (ft)) wide (Frey 2005a, p. 35). Since these areas frequently go dry, they will not support the dense vegetation needed by the subspecies and are therefore not likely to be restored. The area lacks dense herbaceous vegetation, and is not likely to be restored to suitable habitat (see our response to Comment 1, above). Further, recent surveys in Hay and Spring Canyons did not detect the subspecies (Frey 2005a, pp. 35–36). (13) Comment: Unit 5 (White Mountains) should be expanded to include a new subunit for the North Fork of the White River on Fort Apache Reservation based on historical records from at least two locations. Our Response: We did not include a new subunit for the North Fork of the White River because the area was neither occupied at the time of listing nor is it essential to the conservation of the subspecies. The most recent records are from 1933 and 1967 (Frey 2011; Appendix 1). We do not have recent survey information indicating the area is occupied, nor do we have recent habitat information to demonstrate that the area could support suitable habitat for the jumping mouse. The area lacks dense herbaceous vegetation, and is not likely to be restored to suitable habitat (see our response to Comment 1, above). In Unit 5, we are designating 478 ha (1,181 ac) along 22.6 km (14.0 mi) of stream, which exceeds the range of at least 27.5 to 73.2 ha (68 to 181 ac), along 9 to 24 km (5.6 to 15 mi) of flowing streams, ditches, or canals needed for resilient populations of jumping mice (see our response to Comment 1, above). (14) Comment: Subunit 5A (Little Colorado, in Unit 5—White Mountains) should be expanded to include Lee Valley Creek above the Lee Valley Reservoir and the wilderness area in the headwaters of both forks of the Little Colorado River. PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 Our Response: We did not expand the designation to include Lee Valley Reservoir or the additional areas in the headwaters of both forks of the Little Colorado River because these areas were neither occupied at the time of listing nor are they essential to the conservation of the subspecies. The areas are not essential to the conservation of the subspecies because Lee Valley Reservoir does not contain suitable habitat and the reservoir would be an impediment to movements between Lee Valley Creek and the Little Colorado River. In 1981, when the subspecies was last detected, the habitat along Lee Valley Creek contained tall grass meadow with willows growing along a small stream, but the current habitat is composed of shrubs that are very sparse and mostly decadent or dead, with no live willows recorded (Frey 2011, p. 88). The area lacks dense herbaceous vegetation, and is not likely to be restored to suitable habitat (see our response to Comment 1, above). Recent surveys in these areas did not detect the subspecies (Frey 2011, pp. 25, 88; Underwood 2007, entire). We are designating 22.6 km (14.0 mi) of restorable habitat, which would provide the needed size and connectivity of suitable habitat of the jumping mouse along the Little Colorado River and provide population redundancy and resiliency. This size is within the range of at least 27.5 to 73.2 ha (68 to 181 ac), along 9 to 24 km (5.6 to 15 mi) of flowing streams, ditches, or canals needed for resilient populations of jumping mice (see our response to Comment 1, above). (15) Comment: Subunit 5B (Nutrioso, in Unit 5—White Mountains) should be expanded to include additional areas downstream into New Mexico to the Luna Valley, including the tributaries within Stone Creek and Trout Creek watersheds. Our Response: We did not expand the designation to include additional areas downstream into New Mexico, including the tributaries within Stone and Trout Creek watersheds because they were neither occupied at the time of listing nor are they essential to the conservation of the subspecies. Although it is possible that the subspecies could occur in the watershed, there are no confirmed reports of the jumping mouse in the Luna Valley; consequently, the area is considered unoccupied. These additional areas are outside the historical range of the subspecies. The areas we are identifying as critical habitat, if restored and occupied, are sufficient to support conservation. E:\FR\FM\16MRR3.SGM 16MRR3 mstockstill on DSK4VPTVN1PROD with RULES3 Federal Register / Vol. 81, No. 51 / Wednesday, March 16, 2016 / Rules and Regulations (16) Comment: Subunits 5D, 5E, and 5F (East Fork Black, West Fork Black, and Boggy and Centerfire, in Unit 5– White Mountains) should be expanded to include additional areas downstream of each subunit until they join together. In the headwaters of Subunit 5E, additional habitat should include the West Fork of the Black River, Thompson Creek, and Burro Creek. Our Response: We did not expand the designation to include additional areas downstream in Subunits 5D, 5E, and 5F, nor into the headwaters of Subunit 5E, because they were neither occupied at the time of listing nor are they essential to the conservation of the subspecies. Recent surveys in two small tributaries to Burro Creek did not detect the subspecies, and it is not historically known from this area (Frey 2011, p. 104). Moreover, Burro Creek is not essential to the conservation of the subspecies because the creek has a relatively high gradient with rocky substrate, which is not suitable habitat for the jumping mouse (Frey 2011, p. 104). All of the historical locations on the West Fork of the Black River are within the designated critical habitat (Morrison 1991, pp. 5, 10; Frey 2011, p. 104); there are no recent or historic surveys indicating the subspecies’ presence downstream of the area designated as critical habitat. Therefore, the area is considered unoccupied and outside the historical range of the subspecies. The areas we have identified as critical habitat, if restored and occupied, would be sufficient to support conservation. The subspecies is not known historically from Thompson Creek or the headwaters of Subunit 5E. The areas we have identified as critical habitat, if restored and occupied, would likely be sufficient to support conservation; therefore, we do not consider areas outside the historical range as essential to the conservation of the subspecies. Finally, the precise capture locations of two historic records on the East Fork Black River and on the lower Black River could not be determined (Frey 2011, p. 23). Consequently, these areas are not considered occupied or essential for jumping mouse conservation. (17) Comment: Subunit 5G (Corduroy, in Unit 5—White Mountains) should be expanded to include the entire Fish Creek drainage to the Black River. Our Response: We did not expand the designation in Subunit 5G to include the additional areas in the Fish Creek drainage because the areas were neither occupied at the time of listing nor are they essential to the conservation of the subspecies. Recent surveys did not detect the subspecies, and the VerDate Sep<11>2014 19:08 Mar 15, 2016 Jkt 238001 subspecies is not known historically from Fish Creek (Morrison 1991, p. 12; Frey 2011, pp. 87, 89). The additional areas are neither occupied at the time of listing nor are they considered essential to the conservation of the subspecies because they are outside the historical range of the subspecies. The areas we have identified as critical habitat, if restored and occupied, would be sufficient to support conservation. (18) Comment: Subunit 5H (Campbell Blue, in Unit 5—White Mountains) should be expanded to include additional areas upstream to the junction of Castle Creek, which is a tributary to Campbell Blue, and downstream into New Mexico, including the Blue River drainage. Our Response: We did not expand the designation in Subunit 5H to include additional areas upstream of Castle Creek or downstream into New Mexico including the Blue River drainage because these areas were neither occupied at the time of listing nor are these areas essential to the conservation of the subspecies. Recent surveys did not detect the subspecies (Morrison 1991, p. 12; Frey 2011, pp. 87, 89) from these areas. The precise capture location of a historical record on lowermost Campbell Blue Creek could not be determined (Frey 2011, p. 101). The subspecies is not known historically from Castle Creek. There are no confirmed reports of the jumping mouse near the Blue River drainage in New Mexico (Frey 2007, p. 2). Consequently, these areas are not considered occupied. Potentially suitable habitat on lower Campbell Blue Creek was restricted to very small, isolated areas away from the creek. The main channel of Campbell Blue Creek is rocky and devoid of riparian vegetation (Frey 2011, p. 101), and likely not restorable. Finally, no suitable habitat was found downstream of the Turkey Creek confluence along either Campbell Blue or the Blue River (Frey 2011, p. 101). These areas are not essential to the conservation of the subspecies and are outside the historical range of the subspecies. The areas we have identified as critical habitat, if restored and occupied, would be sufficient to support conservation. (19) Comment: Unit 5 (White Mountains) should be expanded to include a new subunit for Beaver Creek, including its tributary Hannagan Creek. Our Response: We did not expand the designation in Unit 5 to include a new subunit for Beaver Creek, including Hannagan Creek, because it was neither occupied at the time of listing nor is it essential to the conservation of the subspecies. The historical location is from 1932 and 1933, there is no suitable PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 14269 habitat further downstream along upper Beaver Creek, and water in the higher reaches of Hannagan Creek is intermittent (Frey 2011, p. 105). Since Hannagan Creek is intermittent in areas and frequently dries, and because the stream has a relatively high gradient, it is not likely to be restored because it will not support the dense vegetation needed by the subspecies. (20) Comment: Unit 6 (proposed as Middle Rio Grande, but renamed Bosque del Apache NWR in this final rule) should be expanded to include a new subunit for Bernardo and La Joya Wildlife Areas along the Rio Grande in New Mexico. Our Response: We did not expand the designation in Unit 6 to include a new subunit for Bernardo and La Joya Wildlife Areas because they were neither occupied at the time of listing nor are they essential to the conservation of the subspecies. Although it is possible that the jumping mouse historically existed in these areas along the Rio Grande, there are no historical records for these areas. Further, recent surveys at Casa Colorado Waterfowl Area, the one historical location in the general vicinity of the Bernardo and La Joya Wildlife Areas along the Rio Grande, did not detect the subspecies (Morrison 1988, pp. 16–21; Frey 2012e, p. 1). These additional areas are not essential to the conservation of the subspecies because they are outside the historical range of the subspecies. The areas within the historical range of the jumping mouse that we have identified as critical habitat, if restored and occupied, would be sufficient to support conservation. (21) Comment: Subunit 6C (proposed as Bosque del Apache NWR in Unit 6— Middle Rio Grande, but renamed Unit 6—Bosque del Apache NWR in this final rule) should be expanded to include all of the refuge management units known to have been used by the jumping mouse. Our Response: We did not expand the designation in Bosque del Apache NWR to include all of the refuge management units known to have been used by the jumping mouse because they were neither occupied at the time of listing nor are they essential to the conservation of the subspecies. While these refuge management units outside of Bosque del Apache NWR are within the historical range of the subspecies, the best available scientific and commercial data do not indicate that they were occupied at the time of listing. The refuge management units outside of the designation do not have suitable habitat (Frey and Wright 2012, p. 23, Figure 6), and the habitat is not E:\FR\FM\16MRR3.SGM 16MRR3 mstockstill on DSK4VPTVN1PROD with RULES3 14270 Federal Register / Vol. 81, No. 51 / Wednesday, March 16, 2016 / Rules and Regulations restorable because seasonally perennial flowing water is lacking. The area lacks dense herbaceous vegetation, and is not likely to be restored to suitable habitat (see our response to Comment 1, above). We acknowledge that the area we are designating as Unit 6 in this final rule does not currently contain continuous suitable habitat, but that area generally has seasonally perennial flowing water with saturated soils (Frey and Wright 2012, entire) and, therefore, has a high potential of being restored to suitable habitat. We proposed and are designating 21.1 km (13.1 mi) in Bosque del Apache NWR as critical habitat in Unit 6, which would provide the needed size and connectivity of suitable habitat of the jumping mouse within Bosque del Apache NWR to support population redundancy and resiliency. This size is within the range of at least 27.5 to 73.2 ha (68 to 181 ac), along 9 to 24 km (5.6 to 15 mi) of flowing streams, ditches, or canals needed for resilient populations of jumping mice (see our response to Comment 1, above). (22) Comment: Unit 8 (Sambrito Creek) should be expanded to include additional areas on the San Juan and Piedra Rivers between the Navajo Reservoir upstream to 2,316 m (7,600 ft) elevation, which is the upper elevation limit for the jumping mouse in the area. Our Response: We did not expand the designation in Unit 8 to include additional areas on the San Juan and Piedra Rivers because they were neither occupied at the time of listing nor are they considered essential to the conservation of the subspecies. Seven of the eight historical locations (from 1960) are within the general area designated as critical habitat along Sambrito Creek (Frey 2008c, pp. 36, 42; 2011a, p. 4). The eighth location is about 4.0 km (1.25 mi) north of Unit 8, and there is no suitable or restorable habitat near this historical location. The area lacks dense herbaceous vegetation and is not likely to be restored to suitable habitat (see our response to Comment 1, above). There are no other historical collections of the jumping mouse within this geographic management area. We are designating 75 ha (184 ac) along 4.6 km (2.9 mi) of stream within Unit 8. This size is above the minimum of the range of at least 27.5 to 73.2 ha (68 to 181 ac), along 9 to 24 km (5.6 to 15 mi) of flowing streams, ditches, or canals needed for resilient populations of jumping mice (see our response to Comment 1, above). (23) Comment: A new unit should be added for the upper Rio Grande based on the 1858 record from Fort Burgwyn, Taos County, and an 1894 record from VerDate Sep<11>2014 19:08 Mar 15, 2016 Jkt 238001 Santa Fe, Santa Fe County, both in New Mexico. Our Response: We did not include a new unit because these areas were neither occupied at the time of listing nor are they essential to the conservation of the subspecies. Both records are over 100 years old, and neither includes a specific capture location. The specific location of the Santa Fe record is completely unknown and could have been anywhere near the City of Santa Fe (Frey 2006d, pp. 12–15; 2008c, p. 40). The Fort Burgwyn location may have been in the vicinity of the confluence of the Rio de la Olla and Rio Grande del Rancho, 14.6 km (9.0 mi) south of Taos, but this is not confirmed. Consequently, these areas were not considered occupied at the time of listing. When Frey (2006d, pp. 28–29, 73) surveyed in the vicinity of Fort Burgwyn, only western jumping mice (Zapus princeps) were captured, likely because there was little current suitable habitat for the jumping mouse. Additionally, deer mice dominated the small mammal community, suggesting a disturbed or degraded riparian system (where suitable habitat no longer exists and is not likely restorable) (Frey 2006, p. 29). Consequently, these areas are not essential for the conservation of the subspecies. (24) Comment: There is concern about the exclusion under section 4(b)(2) of the Act of two Pueblos from the final designation because the jumping mouse has a history of occupancy on these lands. The sites proposed on the two Pueblos would be valuable within the context of the overall distribution-wide planning for the conservation of the jumping mouse. Therefore, the Service should work closely with these Pueblos on management plans that would benefit the jumping mouse and its habitat. Our Response: 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. The Pueblo of Isleta has developed and maintained a Riverine Management Plan that includes the jumping mouse and its habitat (Service 2005; 70 FR 60955, October 19, 2005; Pueblo of Isleta 2005, entire; 2014, entire). The Service has established conservation partnerships with Ohkay Owingeh and Pueblo of Isleta, and both pueblos have implemented conservation and recovery actions for the PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 improvement of riparian habitat and the jumping mouse. As analyzed in the Tribal Lands—Exclusions Under Section 4(b)(2) of the Act section, below, we have excluded both tribal areas from critical habitat based on our ongoing conservation partnerships where the benefits of exclusion from critical habitat outweigh the benefits of including an area within critical habitat. (25) Comment: One of the peer reviewers indicated that the description of the primary constituent elements (PCEs) contains a small amount of outdated information. While the jumping mouse is often, but not always, associated with beaked sedge, willows, or alders, an association with reed canarygrass is unusual. Our Response: Based on this updated information, we have revised the PCEs to remove reference to reed canarygrass (see Primary Constituent Elements section, below). (26) Comment: The manner in which Frey (2011, p. 29) is cited in the proposed rule seems to indicate that the author recommended that stream lengths between 4.5 and 6.0 km (2.8 to 3.7 mi) would support a resilient population. The information on stream length was taken out of context. Our Response: Frey (2011, p. 29) summarized characteristics of sites where the subspecies had been captured in the White Mountains, Arizona. We revised the SSA Report and this final rule to clarify that Frey (2011, p. 29) reported stream lengths containing at least 4.5 to 6 km (2.8 to 3.7 mi) of continuous, dense, riparian herbaceous vegetation (suitable habitat) would likely support populations of jumping mice with a high likelihood of long-term persistence. (27) Comment: The determination that stream lengths should be at least twice as large as those reported by Frey (2011, p. 29) introduces a non-scientific basis for the designation of critical habitat. Our Response: Stream length was not determined by doubling the lengths reported by Frey (2011, p. 29). In the SSA Report, we clarified our use of the best scientific and commercial information available for the jumping mouse (Frey 2011, p. 29) and for the Preble’s meadow jumping mouse (Zapus hudsonius preblei) (Service 2003, pp. 24–25) to explain that the appropriate configuration of critical habitat is provided by protecting multiple local populations (also called subpopulations) throughout a minimum length of stream, ditch, or canal of 9 to 24 km (5.6 to 15 mi) including about 27.5 to 73.2 ha (68 to 181 ac) of suitable habitat. The minimum area needed is given as a range due to the uncertainty E:\FR\FM\16MRR3.SGM 16MRR3 mstockstill on DSK4VPTVN1PROD with RULES3 Federal Register / Vol. 81, No. 51 / Wednesday, March 16, 2016 / Rules and Regulations of an absolute minimum and because local conditions within drainages vary (see our response to Comment 1, above). The Recovery Team for the Preble’s meadow jumping mouse recommended that at least several medium-sized populations (at least 500 mice) should be protected with each population distributed along a 14- to 26-km (9- to 16-mi) network of connected streams whose hydrology supports riparian vegetation (Service 2003, p. 25). Frey (2011, p. 29) reported that stream lengths containing at least 4.5 to 6 km (2.8 to 3.7 mi) of continuous, dense, riparian herbaceous vegetation (suitable habitat) would likely support populations of jumping mice with a high likelihood of long-term persistence. Following severe wildfires, we found that, depending on fire intensity and the subsequent ash and debris flow within stream reaches, jumping mouse populations can be significantly affected and likely extirpated, even when 15 km (9 mi) of continuous suitable habitat existed prior to the wildfire (Sugarite Canyon; Frey 2006d, pp. 18–21; 2012b, p. 16; Frey and Kopp 2013, entire). After reviewing this information, we conclude that current jumping mouse populations need connected areas of suitable habitat along at least 9 to 24 km (5.6 to 15 mi) of nearly continuous suitable habitat to support populations of jumping mice with a high likelihood of long-term persistence from these types of stochastic and catastrophic events. (28) Comment: The jumping mouse may have been extirpated from Bosque del Apache NWR since 2010, despite the fact that the refuge represents one of the largest protected patches of recently occupied habitat. From 2009–2010, the jumping mouse occupied a 2.7-km (1.7mi) reach of the Riverside Canal, but the total length of potential habitat was about 10.5 km (6.5 mi). The failure to verify persistence of the subspecies in 2013 suggests that critical habitat units are not large enough. Our Response: The jumping mouse is not extirpated from Bosque del Apache NWR. They were detected during surveys in 2014 (Frey 2013, entire; Service 2013, entire; 2013a, entire; 2013b, entire; Service 2014a, entire), which confirmed the persistence of the subspecies on Bosque del Apache NWR within the remaining habitat. We are designating 21.1 km (13.1 mi) within Bosque del Apache NWR, which would provide the needed size and connectivity of suitable habitat to increase the potential distribution of the jumping mouse and provide population redundancy and resiliency. We are designating this area because this area generally has perennial flowing water VerDate Sep<11>2014 19:08 Mar 15, 2016 Jkt 238001 with saturated soils (Frey and Wright 2012, entire) and a high potential of being restored to suitable habitat. (29) Comment: We received comments pertaining to dispersal distances and the size of critical habitat units. One recommendation was that the Service should consider dispersal distances from studies on the Preble’s meadow jumping mouse of up to 4.3 km (2.7 mi), whereas another suggestion found our characterization of dispersal distances and home range sizes of the jumping mouse appropriate. Several of the proposed critical habitat units are roughly the same size or smaller than 4.3 km (2.7 mi), suggesting that these units could consist of only a single subpopulation that would be exceptionally vulnerable to extinction. Our Response: We did consider information on the natural history of Preble’s meadow jumping mouse; however, as stated in the SSA Report, studies indicate that the jumping mouse does not appear to travel as great a distance as Preble’s meadow jumping mouse. The maximum distance travelled between two successive points by all radio-collared jumping mice on Bosque del Apache NWR was 744 m (2,441 ft), but most regular daily and seasonal movements were less than 100 m (328 ft) (Frey and Wright 2012, pp. 16, 109; Figure 9). See section 2.6 ‘‘Movements and Home Range’’ in the SSA Report (Service, 2014) for additional information. We reviewed the available natural history information and determined that there is not enough justification to modify our original critical habitat units, especially since our units were generally limited to presence of the primary constituent element of seasonally perennial water. Without water, the other PCEs would not be restored. After considering the variable quality of habitat in many areas outside of the proposed critical habitat, we determined that larger critical habitat units with more reaches of unsuitable or low-quality habitat would not provide additional benefit to the jumping mouse. Consequently, we continue to conclude that current jumping mouse populations need connected areas of suitable habitat along at least 9 to 24 km (5.6 to 15 mi) of continuous suitable habitat to support viable populations of jumping mice with a high likelihood of long-term persistence. Also, see our response to Comment 1, above. (30) Comment: Habitat used by jumping mice is usually linear and very narrow, and must have appropriate vegetation structure, which makes the jumping mice especially vulnerable to habitat fragmentation. Moreover, the PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 14271 jumping mouse has a large geographic range and exhibits natural history features that render jumping mice particularly vulnerable to extinction, including habitat specialization, low densities, and low fecundity. Despite these natural vulnerabilities, the total length of proposed critical habitat was only 310.5 km (192.9 mi). In comparison, spikedace (Meda fulgida) (1,013 km (630 mi)) and loach minnow (Tiaroga cobitis) (983 km (610 mi)) have two to three times more critical habitat than what is proposed for the jumping mouse, yet these fish have a much smaller natural distribution limited to the Gila River watershed. An approach for the jumping mouse based on a rationale similar to spikedace and loach minnow, which emphasized connectivity, would better provide for the conservation of the jumping mouse. Our Response: The conservation needs of different species, including critical habitat designations, are developed independent of one another. The Act requires that we designate only 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 and which may require special management considerations or protection. In addition, the Act requires that we determine whether specific areas outside the geographical area occupied by the species at the time it is listed are essential for the conservation of the species. We have identified those areas occupied at the time of listing that contain the PCEs essential for jumping mouse conservation. In addition, we have identified unoccupied areas, adjacent to these occupied areas, which are essential to the conservation of the subspecies. See our response to Comment 1, above, for additional information. As stated in the SSA Report, habitat connectivity and patch sizes influence the suitability of habitat (Service 2014). However, in designating critical habitat, we selected upstream and downstream boundaries that would avoid including highly degraded areas that are not likely restorable, areas that were permanently dewatered or permanently developed (i.e., natural vegetation removed), or areas in which there was some other indication that suitable habitat no longer existed and was not likely to be restored. Larger critical habitat units with more stream reaches of unsuitable or low-quality habitat that is not likely restorable would not provide additional benefit to the jumping mouse and do not meet the definition of critical habitat. In the Criteria Used To Identify Critical E:\FR\FM\16MRR3.SGM 16MRR3 14272 Federal Register / Vol. 81, No. 51 / Wednesday, March 16, 2016 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES3 Habitat section, below, we used the best scientific and commercial data available to set out the criteria for identifying the areas that meet the requirements of the Act. Comments From Federal Agencies (31) Comment: There is no clear definition of what constitutes occupied versus unoccupied habitat. Our Response: Occupied areas include the 29 locations where jumping mice were captured since 2005, plus a 0.8-km (0.5-mi) segment upstream and downstream of the capture localities. The 0.8-km (0.5-mi) segments have the potential to be occupied during the active season of the subspecies if a jumping mouse moves the maximum known distance beyond the protective herbaceous cover found within the 29 locations. We also include areas that are considered unoccupied, but are immediately adjacent to these occupied areas. These unoccupied areas are beyond 0.8 km (0.5 mi) of the capture location and generally do not contain currently suitable habitat. These occupied and unoccupied areas immediately adjacent to each other comprise 19 of the 21 critical habitat units/subunits. These critical habitat units are labeled ‘‘partially occupied’’ because they include both occupied and unoccupied areas. Finally, we included another two subunits that are completely unoccupied but are essential for the conservation of the jumping mouse. Inclusion of these unoccupied areas provides for expansion of the overall geographic distribution of the subspecies and increases the redundancy. (32) Comment: There is no clear distinction between suitable habitat and critical habitat. Consequently, if an area is not deemed to be essential for the conservation of the subspecies, is consultation still necessary? Our Response: Suitable habitat is a biological term used to describe the necessary habitat characteristics that support a species. For the jumping mouse, suitable habitat is composed of dense, herbaceous riparian vegetation with sufficient seasonally available or perennial flowing waters to support this vegetation as described in the ‘‘Specific Microhabitat Requirements’’ section 2.4.1 of our SSA Report (Service 2014). Critical habitat is a regulatory term under the Act and means those areas occupied by the species at the time of listing on which are found those physical or biological features essential for the conservation of the species and may require special management, and those unoccupied areas that are essential for the conservation of the VerDate Sep<11>2014 19:08 Mar 15, 2016 Jkt 238001 jumping mouse. Critical habitat is defined through rulemaking and may include areas that are and are not considered suitable habitat for the jumping mouse. Conversely, not all areas considered to be suitable jumping mouse habitat are included within a critical habitat designation. Section 7 of the Act requires any Federal agency to insure that any action authorized, funded, or carried out by such agency is not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of critical habitat. If a Federal action may affect a listed species or its critical habitat, regardless of whether that habitat is currently suitable or not, the responsible Federal agency (action agency) must enter into consultation with us (50 CFR 402.14). 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. (33) Comment: Fire, flood, drought, and wild ungulates have always been forces influencing the dynamics of jumping mouse habitat. Our Response: The Service recognizes that these factors have likely always influenced jumping mouse habitat to some degree. However, because of historical, current, and future habitat loss, all of the 29 populations found since 2005 occur within extremely small patches of suitable habitat and most likely contain very few jumping mice, resulting in low population resiliency. In addition, these multiple sources of habitat loss are not acting independently, but may produce cumulative impacts that magnify the effects of habitat loss on jumping mouse populations. Historically larger connected populations of jumping mice would have been able to withstand or recover from local stressors, such as habitat loss from drought, wildfire, or floods. However, the current condition of the remaining small populations means the likelihood of local extirpations is higher. See the discussion of these in section 5.0 ‘‘Stressors and Sources’’ in the SSA Report (Service 2014). Comments From States (34) Comment: Please define the phrase appropriately sized patches of suitable habitat, which is first mentioned under the Physical and Biological Features section. Our Response: Appropriately sized patches of suitable habitat surrounding each jumping mouse population should PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 be 27.5 to 73.2 ha (68 to 181 ac) along 9 to 24 km (5.6 to 15 mi) of flowing streams, ditches, or canals. The minimum area needed is given as a range due to the uncertainty of an absolute minimum and because local conditions within drainages vary. (35) Comment: In Arizona, many areas where the jumping mouse occurs are also visited by anglers, and the critical habitat designation could impact the public’s fishing opportunities. Our Response: We do not expect impacts to anglers from the designation of critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. 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. 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. If there is not a Federal nexus for activities taking place on private or State lands, then critical habitat designation does not restrict any actions that destroy or adversely modify critical habitat. Although expected to be rare, where recreational fishing may have a Federal nexus within the critical habitat designation for jumping mouse, the agency will be required to consult with Service to ensure its actions will not destroy or adversely modify critical habitat. Where the habitat in question is occupied by the listed species, if there is a Federal nexus, the action agency already consults with the Service to ensure its actions will not jeopardize the continued existence of the species. If critical habitat may be adversely modified or destroyed, then this would also be included in the consultation. If the action was found likely to jeopardize the species or destroy or adversely modify critical habitat, the Service is required, to the extent feasible, to provide reasonable and prudent alternatives (RPAs) that would allow the action to proceed and comply with section 7(a)(2) of the Act. Any RPA must be technologically and economically feasible, must allow for the intended purpose of the action to be met, must avoid jeopardy or adverse modification, and must be within the authority of the action agency to implement. In our experience, in the vast majority of cases, the Service is able E:\FR\FM\16MRR3.SGM 16MRR3 mstockstill on DSK4VPTVN1PROD with RULES3 Federal Register / Vol. 81, No. 51 / Wednesday, March 16, 2016 / Rules and Regulations to work with the action agency to successfully provide RPAs. (36) Comment: The Service provides no specific information in the proposed rule regarding the need to designate critical habitat in New Mexico, including the middle Rio Grande, Pecos, and Canadian River basins. Our Response: Section 4 of the Act, and its implementing regulations, require that, to the maximum extent prudent and determinable, the Secretary designate critical habitat at the time the species is determined to be an endangered or threatened species, using the best scientific and commercial data available at the time. In our proposed rule (78 FR 37328; June 20, 2013), we found critical habitat to be both prudent and determinable and are therefore required to designate critical habitat under the Act. (37) Comment: There is no scientific basis for extending the upstream and downstream boundaries by 0.8 km (0.5 mi) of capture locations to include areas that could be potentially used by the jumping mouse. Our Response: We have used the best available scientific and commercial data regarding movement and dispersal of the jumping mouse. The 0.8-km (0.5-mi) segments are considered occupied because the maximum distance travelled between two successive points by all radio-collared jumping mice on Bosque del Apache NWR was approximately 0.74 km (0.46 mi) (Frey and Wright 2012, pp. 16, 109, Figure 9). See section 2.6 ‘‘Movements and Home Range’’ in the SSA Report (Service 2014) for additional information. (38) Comment: The Service should exclude proposed jumping mouse critical habitat from the Rio Grande, New Mexico (Unit 6–Middle Rio Grande) because of the Middle Rio Grande Endangered Species Collaborative Program that provides benefits to endangered species and their habitats, including the jumping mouse. Our Response: Section 4(b)(2) of the Act states that the Secretary shall designate and make revisions to critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat. The Secretary may exclude an area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless 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 VerDate Sep<11>2014 20:47 Mar 15, 2016 Jkt 238001 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. When identifying the benefits of exclusion, we consider, among other things, whether exclusion of a specific area is likely to result in conservation; 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. See Consideration of Impacts under Section 4(b)(2) of the Act, below, for more information. In our proposed rule, we did not consider excluding critical habitat within Unit 6 based on the Middle Rio Grande Endangered Species Collaborative Program because this entity does not own or manage lands within critical habitat. While the Service recognizes the contributions to species conservation made by the Middle Rio Grande Endangered Species Collaborative Program, without lands under their authority which they could manage for listed species, we did not consider exclusion based on this program. (39) Comment: The Service claims that all unoccupied areas contain flowing water. This is an error. Surveys conducted by the Arizona Game and Fish Department in 2011 found Centerfire Creek (Subunit 5F) had little water and was underground in some areas with only standing pools. Our Response: In the Unit Descriptions section of the proposed rule, we do state that all of the completely or partially unoccupied units and subunits currently have flowing water to allow for future restoration of the essential PCEs 1 and 2. However, in the Physical or Biological Features section of the proposed rule, we clarify that suitable habitat is found only when wetland vegetation achieves full growth potential associated with seasonally perennial (persistent water during the vegetation growing season) flowing water and saturated soils. In the Primary Constituent Elements section of PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 14273 the proposed rule, we provide further clarification of seasonally perennial flowing water as that which provides saturated soils throughout the jumping mouse’s active season that supports tall (average stubble height of herbaceous vegetation of at least 69 centimeters (cm) (27 inches); in this final rule, we have changed that to average stubble height of herbaceous vegetation of at least 61 cm (24 inches)) and dense herbaceous riparian vegetation composed primarily of sedges (Carex spp.) and forbs. In the proposed rule (78 FR 37328; June 20, 2013) and the SSA Report (Service 2014), we explain that jumping mouse habitat is subject to dynamic changes that result from flooding and drying of these waterways and the ensuing fluctuations (loss and regrowth) in the quantity and location of dense riparian herbaceous vegetation over time, particularly in response to the ongoing drought. Southwestern riparian and aquatic systems fluctuate due to seasonal and longer-term drought and wet periods, floods, and wildfire. We have updated this final rule and the SSA Report to clarify that flowing water includes seasonally perennial (persistent water during the vegetation growing season) flowing water. (40) Comment: There is too much emphasis placed on the benefits of the American beaver, while ignoring other species such as elk, native fish, mountain lions, bears, and owls. Our Response: More than any other species, the management and restoration of beaver is an important component of jumping mouse conservation. The jumping mouse is often associated with beaver activity because the shallow, slow-moving water from dams and ponds behind beaver dams creates diverse wetland communities that support the required dense riparian herbaceous vegetation for jumping mice (Frey 2006d, p. 52; Frey and Malaney 2009, p. 37). The diverse wetland plant species found in beaver-modified habitat patches may contribute as much as 25 percent of the total herbaceous plant species richness of riparian zones (Wright et al. 2002, p. 99). Beavers can also have a substantial impact on the structure and productivity of riparian areas through the cutting of trees and shrubs, which assist a stream in its ability to resist and recover from disturbance (Naiman et al. 1988, entire). This may contribute to the maintenance of riparian communities in an early seral (phase of ecological succession advancing towards climax) stage with sparse tree and shrub canopy cover where the sunlight can penetrate, thereby providing a dense herbaceous E:\FR\FM\16MRR3.SGM 16MRR3 mstockstill on DSK4VPTVN1PROD with RULES3 14274 Federal Register / Vol. 81, No. 51 / Wednesday, March 16, 2016 / Rules and Regulations understory that is suitable habitat for the jumping mouse. Beaver activities help to expand areas of shallow ground water and hydrophytic (growing wholly or partially in water) vegetation, and generally create a more heterogeneous floodplain by frequently converting streams from intermittent flow to perennial flow (Baker and Hill 2003, p. 299). This can create natural fire breaks and provide refugia from fire effects, especially where beaver activity results in extensive areas of marsh, wetland, and open water habitats, such as those conditions found within or adjacent to jumping mouse habitat. Because beaver populations have been reduced in many areas throughout the range of the jumping mouse, the corresponding loss of wetland habitats and perennial stream flow has contributed to drying and increased flammability of riparian vegetation. (41) Comment: Colorado Parks and Wildlife encourages the Service to invest additional resources in public outreach for Unit 7 along the Florida River. Our Response: We invested additional resources in public outreach along Unit 7. Although we received no requests for public hearings on the proposed designation, we held informational meetings to address public concerns regarding Unit 7 on August 15, 2013, and on April 24, 2014, in Durango, Colorado. (42) Comment: The conclusions drawn in the critical habitat proposal lack robust experimental study designs and are best characterized as conjecture. How is it possible to develop habitat preferences for a species that is difficult to survey? Our Response: We agree that it would be useful to have more information on the jumping mouse, but it is often the case that robust biological information is lacking for rare species. Section 4 of the Act, and its implementing regulations, require that, to the maximum extent prudent and determinable, the Secretary designate critical habitat at the time the species is determined to be an endangered or threatened species, using the best scientific and commercial data available at the time. We reviewed the best available scientific information pertaining to the biological needs of the jumping mouse and habitat characteristics where this subspecies is located. We sought comments from independent peer reviewers to ensure that our designation is based on scientifically sound data, assumptions, and analysis. We also solicited information from the general public, VerDate Sep<11>2014 19:08 Mar 15, 2016 Jkt 238001 nongovernmental conservation organizations, State and Federal agencies that are familiar with the subspecies and its habitat, academic institutions, and groups and individuals that might have information that would contribute to an update of our knowledge of the subspecies, as well as information on the activities and natural processes that might be contributing to the decline of the subspecies. The best available scientific and commercial data, as stated in the ‘‘Specific Microhabitat Requirements’’ section of the SSA Report (Service 2014), indicates the jumping mouse has exceptionally specialized habitat requirements that include dense herbaceous riparian habitat with sufficient seasonally available or perennial flowing waters to support this vegetation. (43) Comment: What impact will this critical habitat designation have on the ability of Federal agencies to conduct meaningful forest restoration projects? Our Response: 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 obligation of the Federal action agency under section 7(a)(2) of the Act is not to restore or recover the species, but to implement reasonable and prudent alternatives to avoid destruction or adverse modification of critical habitat. It is unlikely that designating critical habitat for the jumping mouse will reduce proactive treatments necessary for forest restoration projects (i.e., to alleviate the risk of catastrophic wildfire) because the majority of treatments are likely to be confined to forested uplands and not within riparian and adjacent upland habitat used by the jumping mouse. As an example, in 2015, when the Service completed a consultation on 110,000 acres for the Southwest Jemez Mountains Restoration Project on the Santa Fe National Forest in New Mexico, no forest restoration treatments were curtailed from the proposed jumping mouse critical habitat (Service 2015). However, the Forest Service or other Federal agencies will need to determine whether their Federal action (i.e., fuels treatments) may affect a listed species or designated critical habitat in accordance with section 7 of the Act. During consultation, the Service works with the Federal agencies on their project description to avoid impacts to the species or critical habitat. If the action is likely to adversely modify critical habitat, reasonable and prudent PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 alternatives to the project description would be established, which could be implemented in a manner consistent with the intended purpose of the action, that can be implemented consistent with the scope of the Federal agency’s legal authority and jurisdiction, that is economically and technologically feasible, and that the Director believes would avoid the likelihood of jeopardizing the continued existence of the listed species or resulting in the destruction or adverse modification of critical habitat. Each consultation is evaluated on a case-by-case basis following our regulations (50 CFR part 402). (44) Comment: Why are locations where the jumping mouse has likely been extirpated from impacts due to wildland fire considered as occupied? Our Response: We are required to use the best available scientific and commercial data for the designation of critical habitat. In our designation, occupancy was determined based on any detections during surveys conducted since 2005. Recent surveys (surveys conducted since 2005) have relied on detection or non-detection (presence or absence) data to determine whether jumping mice persist in areas that contained historical populations or areas that currently contain suitable habitat. As stated in the SSA Report (Service 2014), of the 29 populations where the New Mexico meadow jumping mice have been found extant since 2005, at least 11 populations have been substantially compromised in the past 2 years and seven others may have been affected by recent wildfires. We recognize that it is possible that the jumping mouse could be extirpated from these areas, but the most recent survey data available indicate that these 29 areas are occupied. Further, at the time of listing, these areas contained the physical or biological features essential to the conservation of the subspecies. (45) Comment: PCE 3 includes sufficient areas that contain suitable or restorable habitat. Habitat that is in need of restoration should not be designated as critical habitat. Our Response: Jumping mouse populations are currently small and isolated from one another, and the survival and recovery of the subspecies will require expanding the size of currently occupied areas containing suitable habitat into currently unoccupied areas that may need to reestablish suitable conditions. Currently occupied areas were not deemed sufficient to provide for resiliency and representation for viability. In the SSA Report (Service 2014), we estimate that resilient E:\FR\FM\16MRR3.SGM 16MRR3 mstockstill on DSK4VPTVN1PROD with RULES3 Federal Register / Vol. 81, No. 51 / Wednesday, March 16, 2016 / Rules and Regulations populations of jumping mice need connected areas of suitable habitat in the range of at least 27.5 to 73.2 ha (68 to 181 ac), along 9 to 24 km (5.6 to 15 mi) of flowing streams, ditches, or canals (Service 2014a, p. 32). 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 subspecies at the time it is listed (i.e., unoccupied), upon a determination that such areas are essential for the conservation of the subspecies. (46) Comment: The premise that any and all livestock grazing is incompatible with jumping mouse habitat is not scientifically defensible. Properly managed livestock grazing can provide ecological benefits to riparian and upland areas. Our Response: Whether livestock grazing results in loss of suitable habitat and adverse effects to a jumping mouse population is likely dependent upon a number of factors including, but not limited to: The number of livestock present; the proportion of suitable habitat patch subjected to grazing; whether grazing occurs during the growing season; precipitation patterns; and the amount of isolation from other patches of suitable habitat. Morrison (1990, p. 142) found that moderate levels of livestock grazing may be compatible with the jumping mouse; however, Morrison (1990a, p. 1; 1990, p. 142; 1991, pp. 16–18) also concluded that, compared to other forms of habitat loss, grazing has the greatest potential for negative impacts on the jumping mouse and riparian habitat. Frey (2006b, p. 57) found that when livestock grazing is present for short periods of time (such as a few hours or days because of unauthorized use when cattle enter livestock exclosures), population abundance of jumping mice may be reduced, but is not extirpated. However, most livestock grazing is likely to be incompatible with the persistence of jumping mouse populations because of the subspecies’ sensitivity to habitat disturbance (Frey 2006b, p. 57). Although livestock grazing can be managed in many different ways, the best available scientific and commercial data indicate that the jumping mouse does not persist in areas when its habitat is subjected to heavy grazing pressure (Morrison 1985, p. 31; Frey 2005a, entire; 2005b, p. 2; 2011, entire). Livestock grazing can cause a rapid loss of herbaceous cover and eliminate dense riparian herbaceous vegetation that is suitable jumping mouse habitat in less than 60 days (Frey 2005a, p. 60; 2007b, pp. 16–17; 2011, p. 43, Figure 16), and possibly even as VerDate Sep<11>2014 19:08 Mar 15, 2016 Jkt 238001 short as 7 days (Morrison 1989, p. 20). Widespread and intensive livestock grazing, leading to a reduction of tall dense riparian herbaceous vegetation, has been detrimental for the jumping mouse because the quality and quantity of occupied habitats containing suitable habitat have been reduced or eliminated (Frey 2003, pp. 10–14; 2005a, pp. 15–40; 2006d, pp. 10–33; 2011, entire; 2012a, pp. 42, 46, 52; Service 2012c, pp. 1, 6– 8, Figure 13). In addition, livestock and elk grazing within jumping mouse habitat affects individual mice by reducing the availability of food resources (Morrison 1987, p. 25; Morrison 1990, p. 141; Frey 2005a, p. 59; 2011, p. 70). Current grazing practices in many areas have resulted in the removal of dense riparian herbaceous vegetation that historically provided jumping mouse habitat and caused the loss of historical populations. There is a strong tendency for livestock to congregate in riparian habitat (Forest Service 2006, pp. 76–77). Frey and Malaney (2009, p. 38) suggests that maintenance of suitable riparian habitat and long-term viability of jumping mouse populations might only be possible through creation of refugial areas by complete exclusion of livestock from the riparian zone. Please see the SSA Report (Service 2014) for further information. (47) Comment: What areas proposed for critical habitat designation have privately owned water rights associated with grazing allotments, water diversions, or irrigation? If private landowners are going to be excluded from using these waters, the Service must complete a takings implications assessment. Our Response: We did not conduct an analysis of privately owned water rights because it is beyond the scope of the environmental assessment and economic analysis. Nevertheless, the economic analysis found that no significant economic impacts are likely to result from the designation of critical habitat for the jumping mouse. As the Act’s critical habitat protection requirements apply only to Federal agency actions, few conflicts between critical habitat and private property rights should result from this designation. In accordance with E.O. 12630 (Government Actions and Interference with Constitutionally Protected Private Property Rights), we have analyzed the potential takings implications of designating critical habitat for the jumping mouse in a takings implications assessment. The designation of critical habitat affects only Federal actions. Although private parties that receive Federal funding or PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 14275 assistance or 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. (48) Comment: What specific recreational uses cause degradation or destruction of riparian habitat? Our Response: Unregulated dispersed recreational activities, such as camping, fishing, and off-road vehicle use, pose a concern to the jumping mouse because the development of trails, the development of barren areas, and trampling can render habitat unsuitable by reducing or removing dense riparian herbaceous vegetation containing required microhabitat (see section 2.4.1 ‘‘Specific Microhabitat Requirements’’ in the SSA Report (Service 2014)). The development of streamside trails and large, bare, compacted areas used for camping and fishing has been and continues to be reported throughout jumping mouse habitat in areas of the Jemez Mountains, New Mexico, and the White Mountains, Arizona (Frey 2005a, pp. 27–28; 2011, pp. 70–71, 76, 88, Figure 30). See section 5.1.10 ‘‘Recreation’’ in the SSA Report (Service 2014) for additional details. (49) Comment: The proposed rule states that critical habitat does not include manmade structures (such as buildings, fire lookout stations, runways, roads, and other paved areas) and the land on which they are located; however, some proposed stream reaches, such as the East Fork of the Black River, include developed campgrounds. These areas should be removed from the final critical habitat designation. Our Response: We determined that developed campgrounds or other manmade structures (such as buildings, fire lookout stations, runways, roads, and other paved areas) within the boundaries of critical habitat do not contain physical or biological features essential for the conservation of the subspecies. We have made every effort to remove these developed areas where possible; however, due to the scale of the maps, some areas may inadvertently be included. Developed areas are not reasonably believed to contain, or are capable of supporting, the physical or biological features essential for jumping mouse conservation. Therefore, a Federal action involving these developed lands will not trigger section 7 consultation with respect to critical habitat and the requirement of no adverse modification, unless the specific action would directly or E:\FR\FM\16MRR3.SGM 16MRR3 mstockstill on DSK4VPTVN1PROD with RULES3 14276 Federal Register / Vol. 81, No. 51 / Wednesday, March 16, 2016 / Rules and Regulations indirectly affect the physical or biological features in the adjacent critical habitat. (50) Comment: What information does the Service have that indicates specific ecological characteristics are currently present or capable of being restored within the proposed critical habitat? The Service should analyze the Forest Service’s Terrestrial Ecological Unit data prior to designating critical habitat. Our Response: Each unit and subunit was evaluated on a site-by-site basis to determine the best configuration of critical habitat to support jumping mouse populations in that unit or subunit. The information we relied upon is presented in the SSA Report (see section 4.6 ‘‘Subspecies Conditions Compared to Needs by Geographic Management Area’’ in the SSA Report (Service 2014)). The critical habitat units were first delineated by creating rough areas by screen-digitizing polygons (map units) using Google Earth. We then digitized and refined the units using ArcMap version 10 (Environmental Systems Research Institute, Inc.), a computer Geographic Information System (GIS) program. The polygons were finalized by using current (2005 to 2014) and historical (1985 to 1996) subspecies location points, which were then used in conjunction with hydrology, vegetation, and expert opinion to propose and then finalize the designation. The Forest Service’s Terrestrial Ecological Unit data are a GIS coverage of mapped units of land that provide an inventory of various ecotypes on the National Forest. Current vegetative conditions are often used to delineate these ecological map units; however, existing vegetation does not always reflect historical or potential vegetation. Consequently, we did not use this information. (51) Comment: How many riparian areas associated with the critical habitat proposal are classified as being in proper functioning condition by the Forest Service? Our Response: Proper functioning condition is a qualitative assessment method developed by the Bureau of Land Management (BLM) and Forest Service to assess the condition of riparian wetland areas based on hydrology, vegetation, and erosion or deposition (soils) attributes. Although this analysis may be used to inform management prescriptions, develop environmental assessments, or inform resource management plans, the frequency of most proper functioning condition analyses are sporadic in time and space. As a result, we found the best available information for designation of critical habitat for the VerDate Sep<11>2014 19:08 Mar 15, 2016 Jkt 238001 jumping mouse was based on sitespecific data and our knowledge of the corresponding units as described in the SSA Report (Service 2014) and this final rule. Comments From Tribes (52) Comment: The land proposed as critical habitat in Unit 7 (Florida River) is within the boundary of the Southern Ute Indian Reservation and should be indicated accordingly on the map. Our Response: We verified, using the most current land ownership information in GIS, that Unit 7 does not include any lands within the Southern Ute Indian Reservation. (53) Comment: During the public comment period, we received comments from Isleta Pueblo and Ohkay Owingeh expressing their view that they were opposed to the designation of critical habitat and that exclusion of their lands is warranted due to tribal selfgovernance and continuing our cooperative working relationships. Our Response: Subunits 6A and 6B are excluded from this final designation under section 4(b)(2) of the Act. We have determined that the benefits of exclusion outweigh the benefits of inclusion and have, therefore, excluded these areas from this final critical habitat designation. See Consideration of Impacts under Section 4(b)(2) of the Act, below, for further discussion. (54) Comment: The San Carlos Apache Tribe does not support designation of critical habitat on their reservation. Our Response: We did not propose, nor do we designate, any lands as critical habitat on the San Carlos Apache Reservation. Comments From the Public (55) Comment: It is premature to designate critical habitat for the jumping mouse when it is not even listed as an endangered species. Our Response: Section 4(a)(3) of the Act, as amended, and implementing regulations (50 CFR 424.12), require that, to the maximum extent prudent and determinable, the Secretary designate critical habitat at the time the species is determined to be endangered or threatened. The jumping mouse was listed as endangered on June 10, 2014 (79 FR 33119). (56) Comment: The SSA Report was not published in the Federal Register, even though it was the primary document on the biology and habitat of the subspecies. Our Response: We made the SSA Report publically available throughout our consideration of critical habitat for the subspecies via the Federal PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 eRulemaking Portal: http:// www.regulations.gov. We are not required to publish the SSA Report and other supporting documents in the Federal Register, but must make all comments, materials, and documentation that we considered in developing this rulemaking publicly available. The June 20, 2013, proposed listing and critical habitat rules (78 FR 37363 and 78 FR 37328, respectively) provided notification that the SSA Report was available on http:// www.regulations.gov and that we were requesting comments on the proposed rule and associated documents, including the SSA Report. The final listing rule (79 FR 33119; June 10, 2014) also provided notification that the SSA Report was available on http:// www.regulations.gov. (57) Comment: The fencing of riparian areas to allow only wildlife to access the water is illegal and represents an unconstitutional taking of private property water rights in violation of the Fifth Amendment of the U.S. Constitution. Our Response: The Service has not fenced any areas for the protection of the jumping mouse or its habitat, nor are we proposing any fencing, on private lands. We conducted an economic analysis, an environmental assessment to comply with National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.), and a takings implications assessment. Full details can be found in the Required Determinations section, below. (58) Comment: The Service failed to hold any meetings with grazing permittees. Our Response: We did not hold any formal public hearings because we did not receive any requests to do so. However, we did receive requests for informational meetings. Consequently, to address concerns related to the proposed critical habitat, we held informational meetings on August 15, 2013, in Durango, Colorado. Similarly, we held informational meetings in ˜ Canon, New Mexico, on April 24, 2014; in Durango, Colorado, on April 24, 2014; and in Alamogordo, New Mexico, on May 28, 2014. (59) Comment: The Service did not coordinate with the respective counties in each State regarding the proposed designation. Our Response: We mailed notices to all County Commissioners within the proposed designation regarding the proposed rule. We also notified all County Commissioners within the proposed critical habitat designation of the draft environmental assessment and draft economic analysis. Further, we E:\FR\FM\16MRR3.SGM 16MRR3 mstockstill on DSK4VPTVN1PROD with RULES3 Federal Register / Vol. 81, No. 51 / Wednesday, March 16, 2016 / Rules and Regulations published a legal notice inviting the general public to comment on the proposed rule in the Albuquerque Journal on June 27, 2013. We also held several informational meetings, as noted in our response to Comment 58, above. (60) Comment: Designation of critical habitat has yielded very poor results in terms of recovery for the majority of listed species. Our Response: Section 4(a)(3) of the Act, and implementing regulations (50 CFR 424.12), require that, to the maximum extent prudent and determinable, the Secretary designate critical habitat at the time the species is determined to be endangered or threatened. The jumping mouse was listed as endangered on June 10, 2014 (79 FR 33119). We found the designation of critical habitat to be prudent and determinable in our proposed critical habitat rule (78 FR 37328; June 20, 2013), and we are therefore required to designate critical habitat under the Act. (61) Comment: Will New Mexico Department of Game and Fish be mandated to remove elk to minimize grazing impacts on the critical habitat? Our Response: No. The designation of critical habitat does not impose grazing requirements or restrictions. 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. Such designation does not require implementation of restoration, recovery, or enhancement measures by non-Federal landowners. Where a State 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. See our response to Comment 35, above. (62) Comment: Does the Endangered Species Act abrogate the Treaty of Guadalupe Hildalgo? Our Response: No. The Treaty of Guadalupe Hidalgo resulted in grants of land made by the Mexican government in territories previously appertaining to Mexico, and remaining for the future within the limits of the United States. These grants of land were respected as valid, to the same extent that the same VerDate Sep<11>2014 19:08 Mar 15, 2016 Jkt 238001 grants would have been valid within the territories if the grants of land had remained within the limits of Mexico. The designation of critical habitat has no impact on non-Federal actions taken on private land (e.g., land grants), unless those activities involve Federal lands, Federal funding, a Federal permit (e.g., grazing permits), or other Federal action. If such a Federal nexus exists and the action affects the designated critical habitat, we will review the action under section 7 of the Act with the appropriate Federal agency. In these cases, a Federal agency action that may affect the listed species or its designated critical habitat would be required to consult with the Service to ensure that their action does not jeopardize the continued existence of the species, and if critical habitat is designated, to ensure that their action is not likely to destroy or adversely modify critical habitat. Therefore, we do not believe that designation of critical habitat for the jumping mouse abrogates any treaty of the United States, including the Treaty of Guadalupe Hidalgo. (63) Comment: There is no evaluation of conservation easements or whether private lands are subject to county land use restrictions that would prevent the threat of development. This indicates that the Service has not made the required findings under the Act of designating only ‘‘determinable’’ critical habitat. The Service should forgo designating private lands and work with landowners on a voluntary basis. Our Response: The Service recognizes the vital importance of voluntary, nonregulatory conservation measures in achieving the recovery of endangered species. However, we found no conservation easements or State, Federal, or local regulations that might provide some protection to the jumping mouse or its habitat (see section 5.3 ‘‘Protective Regulations’’ in the SSA Report (Service 2014)). Therefore, we are unaware of any protective regulations to prevent ongoing losses of jumping mouse habitat or are unlikely to prevent further future declines of the subspecies, which is why the species is currently listed as endangered. In regards to county land use restrictions, 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 require implementation of restoration, recovery, or enhancement measures by non-Federal landowners. If there is not PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 14277 a Federal nexus for activities taking place on private or State lands, then critical habitat designation does not restrict any actions that destroy or adversely modify critical habitat. Section 4(a)(3)(A) of the Act, and implementing regulations (50 CFR 424.12), require us to designate critical habitat to the maximum extent prudent and determinable. Regulations at 50 CFR 424.12(a)(2) state that critical habitat is not determinable when one or both of the following exist: (1) Information sufficient to perform required analyses of the impacts of the designation is lacking, or (2) the biological needs of the subspecies are not sufficiently well known to permit identification of an area as critical habitat. We found in our June 20, 2013 (78 FR 37328), proposed rule to designate critical habitat that the biological needs of the subspecies and habitat characteristics where this subspecies is located are sufficiently well known. Further, we conducted an economic analysis, an environmental assessment to comply with NEPA, and a takings implications assessment to assess the impacts of the designation. This and other information represent the best scientific and commercial data available and led us to conclude that the designation of critical habitat is prudent and determinable for the jumping mouse. Therefore, we are required to designate critical habitat for this subspecies to fulfill our legal and statutory obligations. (64) Comment: Given the misperceptions of the impact of the Act, and possible intentional damage to jumping mouse habitat on public land by livestock grazing interests, we suggest the Service consider the economic impacts and benefits of a voluntary grazing permit retirement program as a viable solution to land-use conflicts impacting this and other imperiled species. Our Response: We did not conduct an analysis of a voluntary grazing permit retirement program. Because we do not anticipate that this designation will result in a voluntary grazing permit retirement program, it is beyond the scope of the environmental assessment and economic analysis. (65) Comment: The Service should exclude the area proposed as critical habitat in Unit 7 because it would have significant economic impacts. The Service should also exclude lands owned by the Arizona Game and Fish Department in Unit 5. Our Response: We have not excluded Unit 7 or Unit 5 from designated critical habitat. The Service is not aware of any conservation plans for Unit 7 or Unit 5. E:\FR\FM\16MRR3.SGM 16MRR3 mstockstill on DSK4VPTVN1PROD with RULES3 14278 Federal Register / Vol. 81, No. 51 / Wednesday, March 16, 2016 / Rules and Regulations Further, our economic analysis did not find any incremental costs for grazing in Unit 7 and estimated only $5,000 for additional administrative costs for consultation on the operations of the Lemon Dam in Unit 7, the only other possible incremental cost. The economic analysis estimated $9,940,000 of incremental costs for grazing and all other consultation activities in Unit 5 that would only be associated with Forest Service lands and no lands owned by the Arizona Game and Fish Department. Our environmental assessment did not find significant impacts to the human environment. In addition, we are not aware of any national security impacts or any other relevant impacts of the designation of critical habitat. Consequently, neither Unit 7 nor Unit 5 were excluded from this designation under section 4(b)(2) of the Act. The commenters did not provide any additional information for the Service to consider. See Consideration of Impacts under Section 4(b)(2) of the Act, below, for additional information. (66) Comment: One commenter requested that the upstream extent of critical habitat in Unit 7 should be moved farther downstream, as the Florida Ditch’s main headgate is regularly maintained and does not currently, nor will it in the future, contain PCEs. Our Response: We reviewed photographs provided by the commenter, as well as imagery from Google Earth, and we agree that this segment at the proposed upstream boundary of Unit 7 does not contain the physical and biological features essential to the conservation of the jumping mouse. It is unoccupied, and is not likely to provide habitat in the future. Therefore, we removed this area from this final critical habitat designation by moving the upstream extent of designated critical habitat along the Florida River 68.6 m (225 ft) downstream of the Florida Ditch’s main headgate (see the Summary of Changes from the Proposed Rule section, below). We determined that the area around Florida Ditch’s main headgate is unsuitable for the jumping mouse because it is frequently devoid of vegetation and contains irrigation diversion structure, creating unsuitable conditions. (67) Comment: Populations of the jumping mouse along the Florida River have been supported by existing land uses without regulatory intervention. Consequently, the Service cannot demonstrate any benefits from the proposed designation of Unit 7 that is predominately composed of private VerDate Sep<11>2014 19:08 Mar 15, 2016 Jkt 238001 lands, indicating that the designation would be ‘‘prudent.’’ Our Response: Regulations at 50 CFR 424.12(a)(1) state that the designation of critical habitat is not prudent when one or both of the following situations exist: (1) The species is threatened by taking or other activity and the identification of critical habitat can be expected to increase the degree of threat to the species; or (2) the designation of critical habitat would not be beneficial to the species. We found in our June 20, 2013, proposed rule (78 FR 37328) that designation of critical habitat was prudent. There is no indication that the jumping mouse is threatened by collection, and there are no likely increases in the degree of threats to the subspecies if critical habitat is designated. This subspecies is not the target of collection, and the majority of the area we are designating in Unit 7 is privately owned with restricted public access. For these reasons, the designation of critical habitat is unlikely to increase the degree of threats to the jumping mouse. In the absence of finding that the designation of critical habitat would increase threats to a species, if there are any benefits to a critical habitat designation, then a prudent finding is warranted. The potential benefits of critical habitat to the jumping mouse include: (1) Protection under section 7(a)(2) 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 in unoccupied areas (for example, Federal agencies were not aware of the potential impacts of an action on the subspecies or, in this case, the majority of habitat along the Florida River that is unoccupied by the subspecies); (2) implementation of section 7(a)(1) of the Act by identifying areas where Federal agencies can focus their conservation programs and use their authorities to further the purposes of the Act; (3) identification of areas where other conservation partners, such as State and local governments, nongovernmental organizations, and individuals, can focus their conservation efforts; (4) provision of educational benefits to State or county governments, or private entities; (5) provision of early conservation planning guidance, to bridge the gap until the Service can complete more thorough recovery planning, because designation of critical habitat occurs near the time of listing; and (6) improvement of awareness to prevent people from causing inadvertent harm to the PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 subspecies. Therefore, we found designation of critical habitat to be prudent (78 FR 37328; June 20, 2013). (68) Comment: The Service did not explain how the general rationale provided justifies designating critical habitat in Units 7 and 8. There is no unit-specific analysis demonstrating that the enormous portion of unoccupied lands in Units 7 and 8 is ‘‘essential to the conservation of the species’’ and that limiting the designation to occupied areas ‘‘would be inadequate to ensure the conservation of the species.’’ Therefore, the broad area proposed for these units is arbitrary and capricious. Our Response: As we presented in the SSA Report (Service 2014), the jumping mouse occurs within eight geographic management areas, which are defined by the external boundaries of the geographic distribution of historical populations. Each critical habitat unit is within one of the eight geographic management areas. Rangewide, we determined that the jumping mouse needs at least two resilient populations (where at least two existed historically) within each of eight identified geographic management areas (i.e., critical habitat units). This number and distribution of resilient populations is expected to provide the subspecies with the necessary redundancy and representation to provide for viability. Units 7 and 8 are considered partially occupied. Currently the jumping mouse is known only from one location within each of these geographic management areas (Units 7 and 8). Further, the current population in the occupied critical habitat units is represented by habitat patches that are undersized, isolated, and too small to be resilient. Consequently, unoccupied critical habitat is needed to allow for the expansion of the current population and for the establishment of new populations. These unoccupied areas are essential to the conservation of the jumping mouse because they contain current and restorable PCEs that will allow for the expansion of the existing populations and allow for the establishment of new populations. Therefore, unoccupied areas are included in the designation under section 3(5)(A)(ii) of the Act. Further description is provided in the SSA Report in sections 3.3 ‘‘Rangewide Subspecies Needs’’ and 4.2 ‘‘Habitat Connectivity and Patch Sizes’’ (Service 2014). (69) Comment: Examination of satellite imagery shows that the 100-m (330-ft) lateral extent of proposed critical habitat units contains a great deal of land in some areas that is under E:\FR\FM\16MRR3.SGM 16MRR3 mstockstill on DSK4VPTVN1PROD with RULES3 Federal Register / Vol. 81, No. 51 / Wednesday, March 16, 2016 / Rules and Regulations cultivation, or otherwise does not contain riparian dense herbaceous vegetation, and does not have flowing water. Therefore, this larger area does not include any of the PCEs and should not be part of the designation. Alternatively, other commenters believed that the proposed 100-m (330ft) lateral extent of proposed critical habitat did not accurately reflect limits of the jumping mouse habitat and is likely to leave individual jumping mice or the entire subpopulation outside of critical habitat areas (e.g., Unit 6), seasonally or even permanently. Our Response: The Act defines critical habitat as (1) specific areas within the geographical area occupied by the [sub]species, at the time it is listed, on which are found those physical or biological features essential to the conservation of the [sub]species and which may require special management considerations or protection; and (2) specific areas outside the geographical area occupied by the [sub]species at the time it is listed, upon a determination that such areas are essential for the conservation of the [sub]species. The areas that are unoccupied at the time of listing are not required to contain the PCEs essential to conservation of the subspecies. However, all unoccupied areas we are designating as critical habitat have seasonally perennial flowing water with saturated soils and have the potential to be restored to suitable habitat, including the 100-m (330-ft) lateral extent that captures upland areas necessary for hibernation that are outside the regularly inundated floodplain. Areas used for hibernation likely do not include lands under cultivation, yet little research has been done on hibernacula (hibernation burrows) of the jumping mouse. It is assumed that they are similar to other subspecies of meadow jumping mouse. Preble’s meadow jumping mice dig their own hibernation burrows and are solitary hibernators (Service 2003, p. 8). Only one hibernation nest has ever been observed for the New Mexico meadow jumping mouse (Wright and Frey 2011, p. 3). The hibernaculum was below ground and beneath woody debris under a seep willow (Baccharis spp.) (Wright and Frey 2011, p. 8). The site was dry, with an absence of herbaceous vegetation, which was similar to maternal nest sites selected by females (Wright and Frey 2011, pp. 8, 11; Frey and Wright 2012, p. 28). We acknowledge that some jumping mice may use areas outside of the mapped boundary of designated critical habitat. However, the best available scientific and commercial information VerDate Sep<11>2014 19:08 Mar 15, 2016 Jkt 238001 indicates that a 100-m (330-ft) lateral extent of critical habitat in occupied areas contains the physical or biological features essential to the jumping mouse and in unoccupied areas is essential for the conservation of the subspecies (see our response to Comment 68, above). As stated in the SSA Report (Service 2014), individual jumping mice also need intact upland areas that are up-gradient and beyond the floodplain of rivers and streams and adjacent to riparian areas and wetlands because this is where they build nests or use burrows to give birth to young in the summer and to hibernate over the winter. Trainor et al. (2012, p. 433) found that 97 percent of the normal daily movements and resource requirements of Preble’s meadow jumping mice occurred within 110 m (361 ft) from the edge of streams; this includes areas outside of the immediate riparian zones. Extensive movements beyond this distance were limited to less than 3 percent of the home range sizes in Preble’s meadow jumping mouse (Trainor et al. 2012, p. 433). We assume that regular use of these adjacent uplands areas would be similar with the jumping mouse. Therefore, we are designating the adjacent floodplain and upland areas extending approximately 100 m (330 ft) outward from the boundary between the active water channel and the floodplain (as defined by the bankfull stage of streams) or from the top edge of the ditch or canal. (70) Comment: The Service should investigate alternatives within proposed Subunit 6C (Unit 6 in this final rule) that would reduce or eliminate any additional water flow requirements at any of the points where the Middle Rio Grande Conservancy District delivers water to Bosque del Apache NWR. What are the specific flow requirements for critical habitat? Our Response: The designation of critical habitat does not impose water flow requirements or restrictions. 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. Our environmental assessment found that it is unlikely that section 7 consultations will result in flow requirements solely for avoiding adverse modification of critical habitat because the flows would already be necessary for avoiding jeopardy to the jumping mouse in the occupied segments along each stream (Harris Environmental 2014, p. 63). In our economic analysis, we also found it is PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 14279 unlikely that critical habitat on Bosque del Apache NWR would generate additional requests for conservation efforts beyond what would be required due to the listing of the species because the subunit is partially occupied by the jumping mouse (IEc 2014, entire). Nevertheless, future section 7 consultations will evaluate whether proposed actions jeopardize the continued existence of the jumping mouse or adversely modify or destroy critical habitat. (71) Comment: The Service should exclude the subunits proposed as critical habitat in Unit 6 (Middle Rio Grande, New Mexico). Our Response: Section 4(b)(2) of the Act states that the Secretary may exclude areas from the final critical habitat after considering the economic impact, impact on national security, or any other relevant impact of the designation. In our June 20, 2013, proposed rule (78 FR 37328), Unit 6 consisted of three subunits: 6A (Isleta Marsh), 6B (Ohkay Owingeh), and 6C (Bosque del Apache NWR). Proposed Subunits 6A and 6B are excluded from this final designation under section 4(b)(2) of the Act because the benefits of exclusion outweigh the benefits of including these areas as critical habitat. For more information, see Consideration of Impacts under Section 4(b)(2) of the Act, below. Proposed Subunit 6C, Bosque del Apache NWR, is occupied by the subspecies and is under Federal ownership. The Service’s draft 4(b)(2) guidance states that we will generally not exclude Federal lands from critical habitat designation. Consequently, proposed Subunit 6C was not considered for exclusion in our proposed rule (78 FR 37328; June 20, 2013), and is not excluded in this final rule. As a result, proposed Subunit 6C is renamed Unit 6 in this rule. The commenter did not provide any additional information for the Service to consider. (72) Comment: The Service should exclude proposed Subunit 3C (Rio de las Vacas, New Mexico) because it is unoccupied and there is no scientific basis for the designation. Our Response: We conclude that this area is essential to the conservation of the jumping mouse because: (1) The areas occupied by the jumping mouse since 2005 do not contain enough suitable, connected habitat to support resilient populations of jumping mouse; (2) the currently unoccupied segments within individual stream reaches or waterways need to be of sufficient size to allow for the expansion of populations and provide connectivity (active season movements and E:\FR\FM\16MRR3.SGM 16MRR3 mstockstill on DSK4VPTVN1PROD with RULES3 14280 Federal Register / Vol. 81, No. 51 / Wednesday, March 16, 2016 / Rules and Regulations dispersal) between multiple populations as they become established; (3) additional areas need habitat protection to allow restoration of the necessary herbaceous vegetation for possible future reintroductions; and (4) multiple local populations along streams are important to maintaining genetic diversity within the populations and for providing sources for recolonization if local populations are extirpated. Therefore, all of the partially occupied or completely unoccupied areas are included in the designation under section 3(5)(A)(ii) of the Act. The Service is not aware of any conservation plans for Subunit 3C. The economic analysis estimated $3,400,000 of incremental costs for grazing and all other consultation activities in Subunit 3C associated with Forest Service lands. Our environmental assessment did not find significant impacts to the human environment. In addition, we are not aware of any national security impacts or any other relevant impacts of the designation of critical habitat. Consequently, we did not exclude Subunit 3C from this designation. See Consideration of Impacts under Section 4(b)(2) of the Act, below. The commenter did not provide any additional information for the Service to consider. (73) Comment: Morrison (1990, entire) reported that grazing may be compatible with maintenance of jumping mouse populations. Moreover, in the environmental impact statement for the San Diego Range Allotment, the Forest Service found that maintaining 10 cm (4 in) of stubble height in grazed areas would not cause a trend toward Federal listing of the jumping mouse. Our Response: Morrison (1990, p. 142) found that moderate livestock grazing that is carefully monitored could be compatible. Unfortunately, little monitoring has occurred over the last few decades within jumping mouse habitat on National Forest lands. Morrison (1990, p. 142) also reported that livestock grazing had the highest potential for impacting streamside riparian vegetation and wet meadow habitat. See our response to Comment 46, above, about livestock grazing and the jumping mouse. We found that current forage utilization guidelines of the Forest Service have limited the availability of adequate vertical cover of herbaceous vegetation and significantly affected jumping mouse habitat in areas that are not protected from livestock (Forest Service 2013, entire; Frey 2005a, entire; 2007b, pp. 16–17; 2011, p. 43; Service 2007, entire). VerDate Sep<11>2014 19:08 Mar 15, 2016 Jkt 238001 We have no information that indicates that livestock grazing is likely to be reduced in the future or that areas adjacent to recently documented populations would be managed to provide suitable habitat for expansion of jumping mouse populations. Morrison (2014, p. 2) indicates that grazing is one of the most problematic factors affecting jumping mouse habitat and this issue must be addressed in conjunction with critical habitat and recovery of the subspecies. Consequently, the designation of critical habitat will ensure that livestock management practices authorized by Federal agencies are not conducted without required consultation. (74) Comment: The Service must identify specific areas or sections as critical habitat rather than long stretches of San Antonio Creek (Subunit 3A), Rio Cebolla (Subunit 3B), and Rio de las Vacas (Subunit 3C). Our Response: When we conduct a critical habitat analysis, we use the best available scientific and commercial data to determine 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 for the conservation of the species which may require special management considerations or protection. We also analyze whether specific areas outside the geographical area occupied by a species at the time it is listed are essential for the conservation of the species. As stated in the proposed rule (78 FR 37328; June 20, 2013) and the SSA Report (Service 2014), in considering the area needed for maintaining resilient populations of adequate size with the ability to endure adverse events (such as floods or wildfire), we estimate that resilient populations of jumping mice need connected areas of suitable habitat in the range of at least 27.5 to 73.2 ha (68 to 181 ac), along 9 to 24 km (5.6 to 15 mi) of flowing streams, ditches, or canals. We selected upstream and downstream boundaries that would avoid including highly degraded areas that are not likely restorable, areas that were permanently dewatered or permanently developed (i.e., natural vegetation removed), or areas in which there was some other indication that suitable habitat no longer existed and was not likely to be restored. These unoccupied areas are essential to the conservation of the jumping mouse because they will allow for the expansion of the existing populations and allow for the establishment of new populations. See our responses to PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 Comments 1, 68, and 69, above, for additional information. (75) Comment: There is not enough information known on the biological needs of the jumping mouse to designate critical habitat, especially because almost nothing is known about the populations along the Florida River (Unit 7) and Sambrito Creek (Unit 8). Our Response: The Act requires us, to the maximum extent prudent and determinable, to designate critical habitat at the time the species is determined to be an endangered or threatened species based on the best scientific and commercial data available. It is often the case that biological information may be limited for rare species; however, we reviewed all available information and incorporated it into this final rule. (76) Comment: There are ongoing efforts by Colorado Parks and Wildlife to revitalize and enhance the wetlands of Sambrito Creek. Accordingly, section 7 consultation requirements for proposed Unit 8 would impact the ability to complete the project in a timely matter and result in increased administrative and substantive costs. Our Response: Our understanding from Colorado Parks and Wildlife is that the project is complete and there were no increased administrative and substantive costs. (77) Comment: What dams, diversions, wells, and management activities involve a Federal nexus? What areas proposed as critical habitat have privately owned water rights associated with them? Our Response: Section 7(a)(2) of the Act requires 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 in unoccupied areas. The Service conducted outreach efforts to other Federal agencies and limited interviews with relevant stakeholders concerning the likely effects of critical habitat. The U.S. Army Corps of Engineers anticipated section 7 consultation for the rehabilitation of Lake Dorothey and Lake Alice in Unit 1 (partially occupied by the subspecies). In addition, the Service anticipates consulting on the operations of the Lemon Dam in Unit 7 (partially occupied by the subspecies), which is owned by the Bureau of Reclamation. Lastly, the Service anticipates the reinitiation of a programmatic consultation for water use and management activities on the Middle Rio Grande in Unit 6 (partially occupied by the subspecies) (Harris Environmental Inc., 2014, pp. 59–61; E:\FR\FM\16MRR3.SGM 16MRR3 mstockstill on DSK4VPTVN1PROD with RULES3 Federal Register / Vol. 81, No. 51 / Wednesday, March 16, 2016 / Rules and Regulations IEc 2014, pp. 14–16). The Service did not receive any further information on water management structures. Per section 7 of the Act, it is the responsibility of the respective Federal agencies to determine whether any of their ongoing or proposed actions may affect jumping mouse critical habitat and to consult with the Service. We did not conduct an analysis of privately owned water rights because it is beyond the scope of the environmental assessment and economic analysis. Nevertheless, the economic analysis found that no significant economic impacts are likely to result from the designation of critical habitat for the jumping mouse. As the Act’s critical habitat protection requirements apply only to Federal agency actions, few conflicts between critical habitat and private property rights should result from this designation. (78) Comment: Many private land inholdings are unfenced and managed as part of a grazing unit with Forest Service lands. Our Response: In these instances, the Forest Service will determine whether actions on private lands are interrelated or interdependent with the Federal permit authorizing grazing on public lands. If the action is interrelated or interdependent and may affect the listed species or its designated critical habitat, then section 7 consultation under the Act will be necessary. (79) Comment: The proposed critical habitat designation would conflict with Executive Order 13563 (Improving Regulation and Regulatory Review), which says that our regulatory system must protect public health, welfare, safety, and the environment, while promoting economic growth, innovation, competitiveness, and job creation. Our Response: We have developed this rule in a manner consistent with these requirements. See the Regulatory Planning and Review (Executive Orders 12866 and 13563) statement in this final rule, below. (80) Comment: It is impossible to maintain an average stubble height of greater than 61 cm (24 in) throughout the growing season because plants die back each year and because site potential or year-to-year variability in growing conditions will preclude plants reaching this height every year. Our Response: The designation of critical habitat does not require management or maintenance of the PCEs, such as vegetation height. This suitable habitat, of average stubble height of greater than 61 cm (24 in), is found only when wetland vegetation achieves full growth potential VerDate Sep<11>2014 19:08 Mar 15, 2016 Jkt 238001 associated with seasonally perennial flowing water and moist soils. (81) Comment: At three locations along the East Fork of the Little Colorado River, Arizona, herbaceous riparian vegetation that was ungrazed did not average 61 cm (24 in) in height. Site potential and yearly variability in growing conditions will preclude plants achieving maximum expression of height on every site and in every year. Our Response: We acknowledge and agree that site potential and yearly growing conditions will influence the height of dense herbaceous riparian vegetation. The designation of critical habitat does not require the management or maintenance of the PCEs, such as vegetation height. 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 61, above, for additional information on section 7 consultation. (82) Comment: There is significant uncertainty and lack of scientific evidence demonstrating that the jumping mouse exists or existed in the Florida River, Colorado (Unit 7); therefore, critical habitat should not be designated there. Our Response: The best available scientific evidence confirms the existence of New Mexico meadow jumping mice from the Florida River, Colorado. Frey (2008c, pp. 36, 42, 44) verified three museum specimens (one from 1945 and two from 2007) from Florida River, La Plata County. Two of these jumping mice were captured from private property along the Florida River (Museum of Southwestern Biology 2007, entire; 2007a, entire; Frey 2008c, pp. 42–45, 56; 2011a, pp. 19, 33). Another peer reviewer and subspecies expert, Dr. Jason Malaney (Malaney et al. 2012, p. 695; Appendix S1), genetically verified specimens collected in 2007 along the Florida River as New Mexico meadow jumping mice (museum numbers 1154917 and 155117). Recent genetic and morphological studies also conclusively found that the New Mexico meadow jumping mouse is a distinct subspecies and is genetically discrete from other Zapus hudsonius subspecies (King et al. 2006, pp. 4336–4348; Vignieri et al. 2006, p. 242; Frey 2008c, p. 34; Malaney et al. 2012, p. 695; Figure 1). (83) Comment: The proposed Unit 7 (Florida Unit) extends over 9.7 km (6 mi) upriver from where the two jumping mice were captured; this distance is not PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 14281 supported by scientific information regarding habitat requirements or reported movements by the subspecies. Our Response: We used the best available scientific and commercial information in designating critical habitat based on the physical and biological features and PCEs of occupied areas; and unoccupied areas that were essential to the conservation of the subspecies, as specified in section 4 of the Act. See our response to Comment 1, above, which describes our method of designating critical habitat. As stated in the SSA Report (Service 2014, entire) and this final rule, additional populations are needed to provide connectivity and expand jumping mouse populations throughout the drainage. Since there is currently limited suitable habitat of only 0.15 ha (0.37 ac), we included 13.6 km (8.4 mi) in the unit, which would provide the needed size and connectivity of suitable habitat of the jumping mouse in the Florida River and provide population redundancy and resiliency essential to the conservation of the subspecies. (84) Comment: There is no evidence that, even if the specimens from the Florida River (Unit 7) are New Mexico meadow jumping mice, this northern, outlier area is critical to the survival of the subspecies. Our Response: See our response to Comment 82, above, about the existence of the subspecies in the Florida River. As stated in the SSA Report (Service 2014), the subspecies’ overall level of extinction risk is high, given the ongoing and likely future losses of habitat in conjunction with the disjunct and isolated nature of populations. Rangewide, we concluded that the jumping mouse needs at least two resilient populations (where at least two existed historically) within each of eight identified geographic management areas. This number and distribution of resilient populations is expected to provide the subspecies with the necessary redundancy and representation to provide for viability. Conservation of each of the currently remaining 29 populations is vital for maintaining the overall redundancy and representation for the subspecies. Because jumping mouse populations are currently small and isolated from one another, the survival and recovery of the subspecies will require expanding the size of currently occupied areas containing suitable habitat into currently unoccupied areas that need to reestablish suitable conditions. The ability of jumping mouse populations to be resilient to adverse stochastic events depends on the robustness of a population and the ability to recolonize E:\FR\FM\16MRR3.SGM 16MRR3 14282 Federal Register / Vol. 81, No. 51 / Wednesday, March 16, 2016 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES3 if populations are extirpated. In this designation, each of the eight critical habitat units is essential for critical habitat to serve its intended purpose; loss of functionality of even one unit would severely impair the conservation functionality of the entire designation. This is further explained in section 3.3 ‘‘Rangewide Subspecies Needs’’ of the SSA Report (Service 2014). (85) Comment: The prohibition against adversely modifying critical habitat under section 9 of the Act, irrespective of a Federal nexus, will affect private landowners. Our Response: Section 9 of the Act does not pertain to critical habitat. The prohibition against ‘‘take’’ of a listed species under section 9 of the Act applies to individuals of an endangered or threatened species. Comments on Environmental Assessment (86) Comment: The environmental assessment should address the type and extent of monitoring that will be needed for jumping mouse populations and habitat. Our Response: The environmental assessment analyzes the environmental consequences that may result from the designation of critical habitat for the jumping mouse. The designation of critical habitat does not require monitoring of populations or habitat of the jumping mouse. This is beyond the scope of the environmental assessment, but will likely be part of the forthcoming recovery plan. (87) Comment: Multiple factors, including significance of impacts, controversy, regulatory takings implications, and environmental justice, indicate that an environmental impact statement is required under NEPA. Our Response: An environmental impact statement is required only in instances where a proposed Federal action is expected to have a significant impact on the human environment. In order to determine whether designation of critical habitat would have such an effect, we prepared an environmental assessment of the effects of the proposed designation. On April 8, 2014, we announced the availability of the draft environmental assessment in the Federal Register (79 FR 19307) and asked for public comment. Following consideration of public comments, we prepared a final environmental assessment that determined that the critical habitat designation for the jumping mouse does not constitute a major Federal action having a significant impact on the human environment. That determination is the basis for our finding of no significant VerDate Sep<11>2014 19:08 Mar 15, 2016 Jkt 238001 impact (FONSI). Both the final environmental assessment and FONSI are available for public on http:// www.regulations.gov under Docket No. FWS–R2–ES–2013–0014. (88) Comment: There has been no consideration of excluding areas of critical habitat based on other relevant impacts to the cultural and historic traditions of the people within northern New Mexico. Our Response: In the draft environmental assessment, we evaluated impacts to cultural and historical resources from the designation of critical habitat for the jumping mouse. We found that negative impacts on human health or the natural environment are not anticipated. In the draft economic analysis, we evaluated impacts to cultural and historical resources from the designation of critical habitat for the mouse. Project modifications to avoid adverse modification of unoccupied critical habitat (Service 2013c), which may affect cultural resources, include: (1) Relocate the project to an area outside of jumping mouse critical habitat; (2) reduce the size and configuration of the proposed project to avoid, reduce, or eliminate the effects to unoccupied critical habitat; and (3) avoid ground-disturbing activities or reduce project elements that would preclude the development of habitat patches containing dense herbaceous riparian vegetation. These project modifications are unlikely to affect cultural resource projects. Similar project modifications also would apply to many other types of projects (e.g., highway reconstruction, development, water management) and would serve to protect cultural resources from impacts caused by these other projects. Any ground-disturbing actions to protect critical habitat (e.g., exclosure fencing) would require cultural and archaeological surveys and be subject to separate cultural resource and NEPA analysis. In our draft environmental assessment, we analyzed potential impacts on unique cultural and historic resources in the area and found no impacts (Harris Environmental 2014, p. 118). In the draft environmental assessment, we found that costs associated with designation of critical habitat for the jumping mouse are not likely to have a significant impact on low-income or minority populations because: (1) Total costs are estimated to be less than $100 million in any one year (and were estimated to be $23 million per year in 2014), and (2) costs would be distributed among multiple agencies and private parties. Therefore, PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 significant disproportionately high and adverse impacts to minority or lowincome populations, or to cultural and historic traditions, are unlikely to occur. (89) Comment: Several commenters stated that the Service cannot propose a critical habitat designation prior to the analysis of alternatives under NEPA and a draft economic analysis. On August 28, 2013 (78 FR 53058), the Service revised regulations implementing the Act to provide that a draft 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 did not complete an economic analysis and make it available for public comment at the time of publication of a proposed rule to designate critical habitat for jumping mouse. Our Response: The Service published our proposed rule to designate critical habitat for the jumping mouse on June 20, 2013 (78 FR 37328), more than 2 months prior to the publication of the final rule revising the regulations for impact analyses of critical habitat (78 FR 53058; August 28, 2013), and more than 4 months prior to that final rule’s effective date (October 30, 2013). On June 20, 2013, our 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 interpreted ‘‘after proposing’’ to mean after publication of the proposed critical habitat rule. Consequently, when we published the jumping mouse proposed critical habitat rule, we followed the regulations that were current at that time. The draft environmental assessment is used to decide whether critical habitat will be designated as proposed or if further refinements or analyses are needed. The Council on Environmental Quality’s regulations for implementing the procedural provisions of NEPA (40 CFR 1501.3) state that ‘‘Agencies may prepare an environmental assessment on any action at any time in order to assist agency planning and decisionmaking.’’ This same statement is reiterated in the Department of the Interior’s regulations for implementing NEPA (43 CFR 46.300(b)). Therefore, we are not required to prepare an environmental assessment prior to the publication of a proposed critical habitat designation. In addition, the Departmental regulations state that E:\FR\FM\16MRR3.SGM 16MRR3 mstockstill on DSK4VPTVN1PROD with RULES3 Federal Register / Vol. 81, No. 51 / Wednesday, March 16, 2016 / Rules and Regulations ‘‘bureaus may seek comments on an environmental assessment if they determine it to be appropriate’’ (43 CFR 46.305(b)). As such, on April 8, 2014, we announced the availability of, and solicited public comment on, the draft environmental assessment of the proposed critical habitat designation in the Federal Register (79 FR 19307). (90) Comment: The Service must perform a more thorough analysis of the oil and gas potential in proposed Unit 7 because new geological information and technologies may reveal deposits that currently have no or low potential. Our Response: We have used the best scientific and commercial data available at the time in developing this critical habitat designation and associated documents such as the environmental assessment and economic analysis. In our draft environmental assessment, we found that conventional oil and gas extraction does not currently occur within the proposed critical habitat, and we are aware of no proposed oil or gas extraction beyond coalbed methane. As stated in the environmental assessment, coalbed methane exploration and production has the potential to fragment or eliminate habitat of the jumping mouse within Sugarite Canyon, New Mexico, and the Florida River and Sambrito Creek, Colorado (Harris Environmental 2014, pp. 76–81). Within Unit 7, there are only 2.5 ha (6 ac) of critical habitat in areas with potential for coalbed methane development on BLM lands. The BLM does not anticipate consultation for coalbed methane development on any of the critical habitat units (BLM 2013, entire). There is no critical habitat on Forest Service lands within Unit 7. This indicates consultation concerning coalbed methane development is not likely. Consequently, an analysis of potential impacts to conventional oil and gas extraction is not warranted. The ‘‘Energy Resources’’ section of the draft environmental assessment provides further discussion regarding this topic. (91) Comment: The designation of critical habitat will have a greater impact than the mere listing of the subspecies because it contains large areas not occupied by the jumping mouse and will result in additional consultations with Federal agencies that might not have otherwise occurred. Our Response: The designation of unoccupied critical habitat may result in additional consultations. However, only those projects that may affect critical habitat and have a Federal nexus would require section 7 consultations with the Service. During these consultations, it is the responsibility of VerDate Sep<11>2014 19:08 Mar 15, 2016 Jkt 238001 the Federal action agency to consult with the Service, not the private individual or company. If there is not a Federal nexus for a given action or if critical habitat is not affected, then critical habitat designation does not restrict any actions that destroy or adversely modify critical habitat including on private lands. Our environmental assessment found that the effects of proposed critical habitat designation for the jumping mouse would likely only result in minor increases in administrative effort for section 7 consultations (Harris Environmental 2014, pp. 115–116). See our response to Comment 35, above, for further information on section 7 consultation for critical habitat. See also Consideration of Impacts under Section 4(b)(2) of the Act, below. (92) Comment: Several commenters asked that we not designate critical habitat if it would compromise water rights or otherwise adversely impact farmers or other agricultural interests such as livestock grazing, irrigation ditches, acequias, or Rio Grande Compact delivery obligations within critical habitat units. Our Response: Pursuant to the Act, we are statutorily required to designate critical habitat for a federally listed species if it is determined to be both prudent and determinable. We made a determination that critical habitat was both prudent and determinable in our proposed rule (78 FR 37328; June 20, 2013). 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 State, tribal, local, or private lands. Such designation does not require implementation of restoration, recovery, or enhancement measures by nonFederal landowners. If there is not a Federal nexus for activities taking place on private or State lands, then critical habitat designation does not restrict those actions. 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. The mere promulgation of a regulation, like designating critical habitat, does not take private property unless the PO 00000 Frm 00021 Fmt 4701 Sfmt 4700 14283 regulation on its face denies the property owners all economically beneficial or productive use of their land, which is not the case with critical habitat. The Act does not restrict all uses of critical habitat, but only imposes requirements under section 7(a)(2) on Federal agency actions that may result in destruction or adverse modification of designated critical habitat. These requirements do not apply to private actions that do not need Federal approvals, permits, or funding. Furthermore, as mentioned above, if a biological opinion concludes that a proposed action is likely to result in destruction or modification of critical habitat, we are required to suggest reasonable and prudent alternatives. See our response to Comment 35, above. 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 Service has considered these factors; see Consideration of Impacts under Section 4(b)(2) of the Act, below. We are unaware of any instances where water rights or other agricultural interests would be significantly impacted by this designation. Our environmental assessment found that the designation of critical habitat would not have a significant impact on the human environment and that potential impacts on environmental resources, both beneficial and adverse, would be minor. Impacts of critical habitat designation on natural resources within the areas proposed as jumping mouse critical habitat were analyzed and discussed in chapter 3 of the environmental assessment. Applying the analysis of impacts to the significance criteria identified in chapter 3, the Service concluded that the adverse impacts of critical habitat designation would not be significant (Harris Environmental 2014, pp. 115– 116). Further, our final economic analysis did not indicate any disproportionate economic impacts resulting from the designation, and no impacts to national security or other relevant impacts were identified with the exception of Isleta Pueblo and Ohkay Owingeh (see Tribal Lands—Exclusions Under Section 4(b)(2) of the Act, below). The economic analysis also addresses impacts to livestock grazing in section 4 and impacts on water management in section 3. E:\FR\FM\16MRR3.SGM 16MRR3 14284 Federal Register / Vol. 81, No. 51 / Wednesday, March 16, 2016 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES3 Comments on Economic Analysis (93) Comment: The designation of critical habitat for the jumping mouse in the Middle Rio Grande, New Mexico (Unit 6), would result in an increase in time and cost for consultations and impact water diversions, the use of water, and agriculture. Our Response: In our economic analysis, we anticipate the re-initiation of a programmatic consultation for water use and management activities on the Middle Rio Grande, which would include critical habitat on Bosque del Apache NWR. This re-initiation is expected to occur regardless of critical habitat designation because Unit 6 is partially occupied by the subspecies. It is unlikely that additional project modification would be required to avoid adversely modifying or destroying critical habitat, because the subspecies is tied so closely to its habitat. Our incremental effects memo provides a detailed description of the information used for the analysis (Service 2014, entire). Therefore, incremental costs are likely limited to the additional administrative costs associated with addressing adverse modification in the consultation. This incremental administrative effort due to the designation of critical habitat should not impact the timeliness of consultation. (94) Comment: Any increase in water demand to maintain flow requirements for critical habitat on Bosque del Apache NWR will result in less water for consumptive use within the middle Rio Grande in New Mexico. Our Response: In our economic analysis, we found it is unlikely that critical habitat on Bosque del Apache NWR would generate additional requests for conservation efforts beyond what would be required due to the listing of the subspecies because the subspecies is tied so closely to its habitat. It is unlikely that additional project modification would be required to avoid adversely modifying or destroying critical habitat. See our response to Comment 93, above. (95) Comment: The Service is bound by law to provide a more complete economic analysis of the impacts and not just the draft economic screening memorandum. Our Response: The economic screening memorandum is our economic analysis of the proposed critical habitat designation (IEc 2014, entire). This analysis provides us with information on the potential for the proposed critical habitat rule to result in costs exceeding $100 million in a single year. The draft economic analysis addressed potential economic impacts VerDate Sep<11>2014 19:08 Mar 15, 2016 Jkt 238001 of critical habitat designation for the jumping mouse. To that end, the analysis estimates impacts to activities, including grazing, water use, and recreation, that may experience the greatest impacts in compliance with section 4(b)(2) of the Act. The draft screening memo is provided to the public for review and comment. Following the close of the comment period, we reviewed and evaluated all information submitted during the comment period that may pertain to our consideration of the probable economic impacts of this critical habitat designation. We conclude that critical habitat designation for the jumping mouse is unlikely to generate costs exceeding $100 million in a single year. Information relevant to the probable economic impacts of critical habitat designation for the jumping mouse is available in the screening analysis (IEc 2014), available at http:// www.regulations.gov. (96) Comment: The economic analysis fails to consider consultation with Federal Emergency Management Agency and Natural Resources Conservation Service in proposed Unit 7 that would affect farmers on private land that get loans, grants, subsidies, and technical assistance. Our Response: We contacted these agencies via letter and requested information to serve as a basis for conducting an economic analysis of the proposed critical habitat designation for the jumping mouse. We received no information on anticipated consultations relating to this critical habitat designation from these two Federal agencies. Consequently, based on the best available scientific and commercial data, the economic analysis did not forecast any consultations occurring with Federal Emergency Management Agency or Natural Resources Conservation Service in Unit 7. (97) Comment: The Southern Ute Tribe receives water from the Florida Project in proposed Unit 7 (Florida River) to irrigate land within the reservation. The Southern Ute Tribe is concerned that the Service did not evaluate the economic impacts related to consultation with the Bureau of Reclamation and whether the designation of critical habitat may impair their abilities to divert and manage water. Our Response: Our economic analysis found that it is unlikely that critical habitat would generate additional requests for conservation efforts beyond what would be required due to the listing of the subspecies because the needs of the subspecies are tied so PO 00000 Frm 00022 Fmt 4701 Sfmt 4700 closely to its habitat. It is unlikely that additional project modification would be required to avoid adversely modifying or destroying critical habitat. See our response to Comment 93, above. Therefore, incremental costs to this project are likely limited to the additional administrative costs associated with addressing adverse modification in the consultation. (98) Comment: Lemon Dam upstream of Unit 7 (Florida River) is principally managed by the Bureau of Reclamation. Consequently, there is a concern that routine maintenance and operations may trigger section 7 consultation, which may impact timely dam repairs and water releases. Our Response: Our economic analysis anticipated that we will undergo a formal consultation on the operations of the Lemon Dam in Unit 7, which is owned by the Bureau of Reclamation (IEc 2014, p. 15). As described in the economic screening memorandum, it is unlikely that critical habitat would generate additional requests for conservation efforts beyond what would be required due to the listing of the subspecies because the subspecies is so closely tied to its habitat. Unit 7 is partially occupied by the jumping mouse (IEc 2014, p. 15). It is unlikely that additional project modification would be required to avoid adversely modifying or destroying critical habitat. See our response to Comment 93, above. Therefore, incremental costs to this project are likely limited to about $5,000, the additional administrative costs associated with addressing adverse modification in the consultation (IEc 2014, pp. 15, 17). This incremental administrative effort due to the designation of critical habitat should not impact the timeliness of repairs and water releases. (99) Comment: Private landowners within the proposed critical habitat units are opposed to the designation due to the economic impacts that will result. Our Response: We completed an economic analysis of the likely impacts of designating critical habitat for the jumping mouse on water use and management, transportation, recreation, development, and subspecies and habitat management. The economic analysis provides us with the information on the potential for the proposed critical habitat rule to result in costs exceeding $100 million in a single year. This analysis estimated direct (section 7) and indirect costs likely to result from the proposed critical habitat designation for the jumping mouse undertaken by or permitted by Federal agencies within proposed critical habitat. The total quantifiable E:\FR\FM\16MRR3.SGM 16MRR3 mstockstill on DSK4VPTVN1PROD with RULES3 Federal Register / Vol. 81, No. 51 / Wednesday, March 16, 2016 / Rules and Regulations incremental section 7 costs associated with the proposed designation was estimated to be $23,000,000 per year in 2014. 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. In addition, the analysis concluded that the designation of critical habitat is unlikely to trigger additional indirect requirements under State or local regulations. Further, this analysis is supplemented by a separate memorandum assessing the potential perceptional effects on grazing. This analysis concludes that the aggregate value of all activities on these lands is less than $100 million. Therefore, we conclude that critical habitat designation for the jumping mouse is unlikely to generate costs exceeding $100 million in a single year. Based on this information, we did not find any areas warranted exclusion from designation of critical habitat based on economic impacts (see our response to Comment 88, above). (100) Comment: The incremental effects memorandum and economic screening memorandum were available for public comment for only 30 days, rather than the required 60 days under 50 CFR 424.16(c)(2). Our Response: Under 50 CFR 424.16(c)(2), we are required to allow at least 60 days for public comment following publication of a rule proposing the designation of critical habitat. This regulation applies to the proposed rulemaking, not the economic analysis or environmental assessment. We requested written comments from the public on the proposed designation of critical habitat during two comment periods. The first comment period rule associated with the publication of the proposed rule (78 FR 37328) opened on June 20, 2013, and closed on August 19, 2013. We also requested comments on the proposed critical habitat designation and associated draft economic analysis and draft environmental assessment during a comment period that opened April 8, 2014, and closed on May 8, 2014 (79 FR 19307). We provided the normal 30-day comment period for the announcement of the availability of these associated documents. We contacted appropriate Federal and State agencies, State congressional representatives, local governments, tribes, scientific experts and organizations, and other interested parties and invited them to comment on the proposed rule and associated draft economic analysis and draft environmental assessment. On August 15, 2013, we also held an informational VerDate Sep<11>2014 19:08 Mar 15, 2016 Jkt 238001 meeting in Durango, Colorado, after receiving requests from interested parties. Similarly, we held ˜ informational meetings in Canon, New Mexico, on April 24, 2014; Durango, Colorado, on April 28, 2014; and Alamogordo, New Mexico, on May 28, 2014. (101) Comment: No attempt was made by the Service to notify any stakeholders or prior commenters on the proposed rule when the Service made available the draft environmental assessment and draft economic analysis for public comment. Our Response: We sent letters to Federal and State agencies, State congressional representatives, local governments, and interested parties, including all individuals that commented on the June 20, 2013, proposed rule and those that signed in and provided their full addresses to us during the informational meetings (see our response to Comment 58, above), and we issued a news release on our Web site. Similarly, we held ˜ informational meetings in Canon, New Mexico, on April 24, 2014; Durango, Colorado, on April 28, 2014; and Alamogordo, New Mexico, on May 28, 2014. (102) Comment: A full analysis of economic impacts has not been completed and disseminated for public comment. Our Response: In order to consider economic impacts, we prepared an incremental effects memorandum and screening analysis, which together with our narrative and interpretation of effects, was our draft economic analysis of the proposed critical habitat designation (IEc 2014, entire). The draft analysis, dated February 18, 2014, along with the draft environmental assessment, was made available for public review from April 8, 2014, through May 8, 2014 (79 FR 19307). See our responses to Comments 100 and 101, above, that address our outreach efforts. The draft environmental assessment addressed potential economic impacts of critical habitat designation for the jumping mouse. Following the close of the comment period, we reviewed and evaluated all information submitted during the comment period that may pertain to our consideration of the probable economic impacts of this critical habitat designation. The economic analysis provides us with information on the potential for the proposed critical habitat rule to result in costs exceeding $100 million in a single year. We conclude that critical habitat designation for the jumping mouse is unlikely to generate costs exceeding PO 00000 Frm 00023 Fmt 4701 Sfmt 4700 14285 $100 million in a single year. Information relevant to the probable economic impacts of critical habitat designation for the jumping mouse is available in the screening analysis (IEc 2014), available at http:// www.regulations.gov. (103) Comment: The cost estimates presented in the economic analysis should be adjusted to account for errors in the land ownership information presented in the proposed rule within Subunit 4B. Our Response: Federal and private land ownership acreages for Subunit 4B were presented incorrectly in Exhibit 1 of the economic screening memorandum as a result of a reporting error. However, the economic analysis was conducted using the correct ownership acreages, namely 118 ha (291 ac) of Federal land and 18 ha (44 ac) of private land. (104) Comment: The economic analysis does not follow the binding legal precedent in the Tenth Circuit by evaluating only the incremental effects of critical habitat designation. Our Response: As stated in the Service’s 2013 revisions to the regulations for impact analyses conducted for designations of critical habitat under the Act (78 FR 53058, August 28, 2013, see p. 53062), ‘‘because the primary purpose of an economic analysis is to facilitate the mandatory consideration of the economic impact of a designation of critical habitat, to inform the discretionary 4(b)(2) exclusion analysis, and to determine compliance with relevant statutes and Executive Orders, the economic analysis should focus on the incremental impact of the designation.’’ Therefore, our analysis focuses on incremental impacts. (105) Comment: The economic screening memorandum does not include an analysis of impacts on small businesses. Our Response: Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), Federal agencies are only required to evaluate the potential incremental impacts of a 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 adversely modify critical habitat. Therefore, under section 7, only Federal action agencies are directly subject to E:\FR\FM\16MRR3.SGM 16MRR3 mstockstill on DSK4VPTVN1PROD with RULES3 14286 Federal Register / Vol. 81, No. 51 / Wednesday, March 16, 2016 / Rules and Regulations the specific regulatory requirement (avoiding destruction and adverse modification) imposed by critical habitat designation. Under these circumstances, it is the Service’s position that only Federal action agencies will be directly regulated by this designation. Therefore, because Federal agencies are not small entities, the Service may certify that the proposed critical habitat rule will not have a significant economic impact on a substantial number of small entities. Because certification is possible, no regulatory flexibility analysis is required. (106) Comment: The economic analysis is limited to ‘‘a point in time’’ and does not allow for future changes in pricing for cattle, costs for fencing and fence maintenance, inflation, jumping mouse population growth, and expansion of suitable habitat. Our Response: The economic analysis provides information to the Service on the potential for the proposed critical habitat rule to result in costs exceeding $100 million in a single year. Many of the anticipated impacts, such as animal unit month (AUM) reductions, are expected to occur in 2016, following the designation of critical habitat for the jumping mouse. In addition, the economic analysis conservatively assigns all other impacts, such as fencing, to one year, even though some of these costs may occur at a later date, which would reduce the actual impact occurring in a single year. Therefore, it is appropriate to use current prices. (107) Comment: The economic analysis fails to fully consider the impact of the designation on State agencies, which may be required to consult with the Service on activities that receive Federal funding. These activities may include operation and maintenance activities at Seven Springs Fish Hatchery, habitat modification or water diversion projects on State lands, and removal of nuisance beaver on private or public lands. Our Response: It is the responsibility of the respective Federal agencies, not the State agency, private individual, or company, to determine whether any of their ongoing or proposed actions may affect jumping mouse critical habitat and to consult with the Service. As stated in the economic screening memorandum, critical habitat could result in incremental section 7 impacts to State agencies if a Federal nexus is present (e.g., if a State agency receives Federal funding). However, based on information provided to the Service from Federal agency stakeholders and outreach to other stakeholders, we did not identify any situations where State VerDate Sep<11>2014 19:08 Mar 15, 2016 Jkt 238001 agencies receiving Federal funding would be affected by the proposed critical habitat designation. Incremental costs associated with consultation on operations and maintenance activities at the Seven Springs Fish Hatchery in Subunit 3B would be limited to administrative costs of consultation because, as noted in the proposed rule, this area is partially occupied by the subspecies and consultation would occur regardless of the designation of critical habitat. Should consultation be required for habitat projects or removal of nuisance beaver, the costs of these consultations are likely to be minimal because all of the critical habitat units are partially occupied. Therefore, the incremental costs associated with consultation on these State-led activities are likely limited to the additional administrative costs of considering critical habitat as part of the informal consultations and would not result in a substantial increase in the total costs estimated in the economic analysis. (108) Comment: The incremental effects memorandum cannot be considered an economic analysis as required under section 4(b)(2) of the Act as it does not address the potential land use sectors that may be affected by the designation and does not estimate costs to directly and indirectly impacted entities. Our Response: The purpose of the Service’s incremental effects memorandum is to provide information to serve as a basis for conducting the economic analysis of the proposed critical habitat designation. The economic screening memorandum (complete title is ‘‘Consideration of Economic Impacts: Screening Analysis of the Likely Economic Impacts of Critical Habitat Designation for the New Mexico Meadow Jumping Mouse’’) provides information on the potential for the proposed critical habitat rule to result in costs exceeding $100 million in a single year. To that end, the analysis in the economic screening memorandum estimates impacts to activities (i.e., potential land use sectors) that may experience the greatest impacts in compliance with section 4(b)(2) of the Act, including grazing, water use, and recreation. We did not find that these or any other activities (i.e., potential land use sectors) would result in significant economic impacts. See our response to Comment 107, above, regarding cost to directly and indirectly impacted entities. (109) Comment: The designation of critical habitat for the jumping mouse will place restrictions on future land uses, causing a reduction in property values. PO 00000 Frm 00024 Fmt 4701 Sfmt 4700 Our Response: Section 4 of the economic screening memorandum includes a discussion of the possible impacts of public perception on private property values. The analysis considered the impact that the designation of critical habitat may have on grazing, which is considered the highest value use of these lands. To evaluate the possible magnitude of such costs, the analysis estimates the total perpetuity value of the cattle that could be supported by all privately owned land and associated Federal leases in the proposed critical habitat designation and concludes that it is unlikely to exceed $100 million. Thus, should property values be affected by the designation, the diminution in value could not exceed the total value of the properties. Data limitations prevent the estimation of the degree to which values might decrease; however, given current property values, such costs would not exceed $100 million when combined with the other costs estimated in the screening analysis. (110) Comment: A more localized analysis of the economic impacts of the designation is necessary as the affected communities are quite different from one another. Our Response: The economic analysis provides us with the information on the potential for the proposed critical habitat rule to result in costs exceeding $100 million in a single year. To that end, the analysis in the economic screening memorandum estimates impacts to activities, including grazing, water use, and recreation, that may experience the greatest impacts in compliance with section 4(b)(2) of the Act. The economic analysis focuses on activities with a Federal nexus because an action with no Federal nexus, including actions on private lands, is not affected by a designation of critical habitat. A key focus of this economic analysis is whether the designation of critical habitat would trigger project modifications to avoid adverse modification that would be above and beyond any modifications triggered by adverse effects to the species itself. (111) Comment: The economic analysis fails to consider the economic impacts of the proposed critical habitat designation on the holders of grazing leases whose allotments are within the proposed critical habitat area and must be revised to consider these impacts. One commenter suggests that these impacts should be quantified as a reduction in the market value of allotments and provides a reference to the approach of Hawkes and Libbin (2014) to estimate the market value. E:\FR\FM\16MRR3.SGM 16MRR3 mstockstill on DSK4VPTVN1PROD with RULES3 Federal Register / Vol. 81, No. 51 / Wednesday, March 16, 2016 / Rules and Regulations Our Response: The economic analysis includes an assessment of impacts to grazing (see section 3 of the economic screening memorandum). Specifically, the analysis estimates costs associated with AUM reductions and fencing where allotments overlap proposed critical habitat. AUM reductions represent a high-cost conservation alternative; lower cost alternatives may be available, including shifting cattle rotation patterns and developing alternative water sources. In line with this threshold analysis approach, we focus our analysis on the highest possible cost impact. Total costs associated with grazing activities are estimated to be $23 million. (The draft screening memorandum estimate is $15 million. However, based on public comments, additional analysis regarding water developments, cattle guards, and NEPA processes was conducted.) Despite the fact that a section 7 nexus is unlikely for grazing activities conducted on private lands, the ranching community may perceive that the designation of certain parcels as critical habitat will limit future grazing activities in those areas. In addition, private landowners hold renewable leases that are both inheritable and transferrable with the sale of the land, or in the case of Forest Service permits, the transfer of livestock (pending the approval of the Forest Service). In the ‘‘Supplemental Information on Perceptional Effects on Grazing— Critical Habitat Designation for the New Mexico Meadow Jumping Mouse’’ (supplemental memorandum) we evaluated the possible magnitude of such costs. Based on the analysis presented in this memorandum, the value of grazing activities is unlikely to exceed $100 million. To quantify these impacts, the economic analysis: (1) Identifies reductions in the number of cattle that will be allowed to graze in the form of reductions in AUMs; and (2) estimates costs associated with these reductions using the permit value per AUM in perpetuity. Permit value can be used as a measure of rancher wealth tied up in grazing permits, and forced reductions in AUMs can be represented by a loss in permit value. We rely on estimates of permit value, in perpetuity, of grazing on Forest Service lands from nine published studies to determine an average permit value per AUM. This approach has been applied in previous economic analyses of proposed critical habitat designations promulgated by the Service and has been the subject of technical review by academic experts. (112) Comment: Multiple commenters state that the designation of critical VerDate Sep<11>2014 19:08 Mar 15, 2016 Jkt 238001 habitat will have a significant economic impact on ranchers who own allotments on National Forest lands. This impact will result from the Forest Service reducing stocking rates and limiting livestock access to water. The commenters assert that without access to water, ranchers may be put out of business, which would have a larger effect on the economies of the region. Our Response: See our response to Comment 111, above, regarding economic impact on ranchers. We acknowledge that if fencing limits access to water, costs could be higher than what was estimated in the screening analysis. Therefore, we incorporate costs associated with the development of alternative water sources for cattle based on information provided by the Forest Service (see our response to Comment 114, below). (113) Comment: The commenters state that the assumption applied in the economic analysis that AUM reductions due to jumping mouse conservation are proportional to the percentage of allotment area proposed for critical habitat designation is incorrect. One commenter notes that this assumption does not take into account the fact that fencing riparian areas also fences off water and other areas that are not proposed as critical habitat. Our Response: The assumption that AUM reductions are proportional to the percentage of allotment area proposed for critical habitat designation could understate or overstate costs. However, absent specific information on forecast AUM reductions, we believe that this is a reasonable assumption. This assumption has been applied in previous economic analyses that were peer-reviewed by subject experts. In addition, the estimated total value of the AUMs of all allotments intersecting the proposed designation is approximately $2.0 million, and, therefore, even in the unlikely scenario that fencing of riparian areas results in the full loss of AUMs from allotments intersecting proposed critical habitat, the total impacts would not approach the $100 million threshold. Lastly, in response to information provided by the Forest Service, we incorporate costs associated with the development of alternative water sources for cattle that may be required if fencing limits access to water (see our response to Comment 114, below). (114) Comment: One commenter suggests that costs must be added to the economic analysis associated with management for the jumping mouse and its habitat within the National Forests. In particular, water developments will be necessary if fencing around streams PO 00000 Frm 00025 Fmt 4701 Sfmt 4700 14287 occurs, at a cost of up to $500,000 within the Apache-Sitgreaves National Forest and $400,000 within the Lincoln National Forest. In addition, within the Lincoln National Forest, cattleguards would be needed where fencing intersects roads and trails, at a cost of $310,000. Also within the Lincoln National Forest, costs associated with employing an on-site fire crew and law enforcement during fence installation are estimated to cost $3,500 per day. Similar water development, cattleguard, and fire protection costs are anticipated within the Santa Fe National Forest. Finally, the high-end cost for completing the NEPA process to address critical habitat for the mouse is estimated to be $200,000 for each National Forest. Our Response: Based on information provided by the Southwestern Region of the Forest Service, we conservatively assumed that water developments, cattle guards, and NEPA processes would be required as a result of the proposed critical habitat designation for the jumping mouse, and this cost has been included in the economic analysis. At this time, it is unknown whether on-site fire crews and law enforcement will be needed during future fence installation, and therefore this was not included in the economic analysis. We estimated a cost of $200,000 per forest for NEPA processes, totaling $600,000. In addition, we estimated costs of $100,000 per pasture for water developments within five pastures in the ApacheSitgreaves National Forest, four pastures in the Lincoln National Forest, and six pastures in Santa Fe National Forest, for a total of $1.5 million. The ApacheSitgreaves National Forest and Lincoln National Forest provided the estimates of the number of pastures requiring water developments, and we conservatively assumed that all pastures intersecting the proposed designation in Santa Fe National Forest will require water developments. We applied the high-end cost estimate of $100,000 perdevelopment provided by the Forest Service for each anticipated water development. In addition, we estimated costs of $310,000 per forest for cattleguards. Santa Fe and ApacheSitgreaves National Forests were not able to provide cost estimates for cattleguards, so we assumed that their needs will be similar to those in the Lincoln National Forest, which estimated that 20 road and 5 trail cattleguards will be needed. In total, the estimated cost of the conservation measures described above is $2.7 million. This estimate is likely to overstate incremental costs, as some of E:\FR\FM\16MRR3.SGM 16MRR3 mstockstill on DSK4VPTVN1PROD with RULES3 14288 Federal Register / Vol. 81, No. 51 / Wednesday, March 16, 2016 / Rules and Regulations these conservation measures may be implemented in occupied habitat; the costs in occupied areas would not be incremental costs due to the designation of critical habitat. The addition of these conservation costs, as well as updates to the number of permitted AUMs in Apache-Sitgreaves National Forest (described below in Comment 118), yields a revised incremental impacts estimate of $23 million, which does not approach the $100 million threshold, even when combined with information about the total value of grazing rights in the proposed critical habitat designation (see our response to Comment 111, above, regarding potential perception effects). (115) Comment: It is incorrect to assume that allotments with less than 5 percent of their total area overlapping proposed critical habitat will be able to shift grazing activities away from the critical habitat areas at minimal cost and without affecting the overall grazing within the allotment. Because grazing does not occur equally across the allotment and habitat conditions vary considerably within each allotment, grazing pressure can vary. Our Response: This assumption has been applied in previous economic analyses that were peer-reviewed by subject experts. To test the effect of this assumption on our overall cost estimate, we updated our analysis to include those allotments with less than 5 percent of their total area overlapping proposed critical habitat and find that the total cost of AUM reductions in these additional areas would be less than $40,000. (116) Comment: The commenter states that exhibit 3 of the economic analysis is incorrect in stating that AUM reductions are not anticipated for allotments for which the number of permitted AUMs is unknown. Our Response: Exhibit 3 indicates that AUM reductions are not anticipated for these allotments because the percentage of overlap of these allotments with the proposed critical habitat does not exceed the 5 percent threshold. (117) Comment: The costs of replacing fencing lost due to the Wallow Fire in areas where the species is present should be included in the economic analysis. Our Response: Guidelines issued by the U.S. Office of Management and Budget (OMB) for the economic analysis of regulations direct Federal agencies to measure the costs and benefits of a regulatory action against a baseline. Costs incurred in areas where the species is present are baseline costs, meaning that these actions would occur without critical habitat designation. VerDate Sep<11>2014 19:08 Mar 15, 2016 Jkt 238001 Impacts that are incremental to the baseline are those that are solely attributable to the designation of critical habitat. This screening analysis focuses on the likely incremental effects of the critical habitat designation for the jumping mouse. (118) Comment: Several commenters assert that the AUMs reported in the economic analysis do not accurately reflect the permitted AUMs for each allotment. One commenter states that given the multiple-year drought impacting these areas, using the current AUMs significantly underestimates AUMs associated with each allotment and the analysis should use the full permitted AUMs. A second commenter provides a more accurate reflection of the permitted AUMs for allotments within the Apache-Sitgreaves National Forest. Our Response: The grazing analysis described in the economic screening memorandum is based on the best available information at the time of writing. For the Apache-Sitgreaves National Forest, specific permitted AUMs were not available, so the analysis used estimated AUMs based on the Apache-Sitgreaves National Forest’s annual operating instructions. We have updated our analysis to include the more accurate permitted AUM data provided by the Apache-Sitgreaves National Forest during the public comment period. Using this information, we find that the overall results of the economic analysis were not significantly affected and the costs we estimated in 2014 do not approach the $100 million threshold. (119) Comment: The designation of critical habitat will result in increased operating costs associated with altering the current grazing system within allotments. The commenter believes that changes to the grazing system will result in increased labor and travel costs, and excessive handling of cattle may result in lower weaning weights, increased calf losses, and lower reproductive rates. Our Response: The economic analysis estimates costs associated with AUM reductions and fencing of riparian areas (including alternative water sources for cattle). As described in section 3 of the economic screening memorandum, these costs represent a high-cost estimate. Lower cost options may be available, including shifting cattle rotation patterns and developing alternative water sources. The estimated total value of the AUMs of all allotments intersecting the proposed designation is approximately $2.0 million, and, therefore, even in the unlikely scenario that lower weaning weights, increased PO 00000 Frm 00026 Fmt 4701 Sfmt 4700 calf losses, and lower reproductive rates result in the full loss of AUMs from allotments intersecting proposed critical habitat, the total impacts would not approach the $100 million threshold. (120) Comment: Under section 9 of the Act, notwithstanding Federal nexus, a farmer or rancher may be prohibited from grazing cattle or conducting other agricultural activities. The commenter asserts that costs stemming from this requirement should be included in the economic analysis. Our Response: Section 9 of the Act prohibits take of any species listed as an endangered species and makes it illegal for any person subject to the jurisdiction of the United States to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt any of these, such species. Section 9 is not applicable to critical habitat. 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. Therefore, costs related to the requirements of section 9 of the Act are not incremental impacts of the proposed critical habitat designation and are not included in the economic analysis. (121) Comment: Several commenters note that project modifications to water development and use activities may disrupt the availability of water for agriculture, reducing agricultural productivity. The commenters state that the economic analysis should include an assessment of impacts to agricultural productivity on all lands irrigated by water management infrastructure included in the proposed critical habitat designation. Our Response: In section 3 of the economic screening memorandum, we address potential impacts to water management projects, including the Bernalillo to Belen Levees project in excluded Subunit 6A, the Lake Dorothey and Lake Alice projects in Unit 1, the Lemon Dam in Unit 7, and water use and management activities on the Middle Rio Grande. Overall, we find that the designation of critical habitat for the jumping mouse will not result in incremental changes to water management activities, and, therefore, the designation is not expected to result in impacts to agricultural productivity. (122) Comment: The commenters state that the economic analysis underestimates the impacts associated with water management in proposed Unit 7 (Florida River) and should include costs associated with E:\FR\FM\16MRR3.SGM 16MRR3 mstockstill on DSK4VPTVN1PROD with RULES3 Federal Register / Vol. 81, No. 51 / Wednesday, March 16, 2016 / Rules and Regulations consultation on the Florida Project and any operating restrictions that may result in decreased water availability to end-users. Additionally, the economic analysis must consider costs associated with managing the Lemon Reservoir on the Florida River. Our Response: The economic analysis includes an assessment of potential incremental effects on the Lemon Dam, which is the principal feature of the Florida Project (see section 3 of the economic screening memorandum). Specifically, the analysis forecasts costs associated with a consultation between the Service and the Bureau of Reclamation to consider the effects of the operations of the Lemon Dam in Unit 7. As described in the economic screening memorandum, as Unit 7 is partially occupied by the species, it is unlikely that critical habitat would generate additional requests for conservation efforts beyond what would be required due to the listing of the species, and, therefore, the incremental costs to this project are likely limited to administrative consultation costs associated with addressing adverse modification in the consultation. (123) Comment: Ongoing efforts by the Bureau of Reclamation to enhance wetlands within Unit 8 (Sambrito Creek) will be affected by section 7 consultation requirements. The commenters assert that these costs should be included in the economic analysis. Our Response: While the Bureau of Reclamation’s wetland restoration efforts in Unit 8 may require section 7 consultation with the Service, the administrative costs associated with addressing adverse modification in a consultation would be minor (approximately $5,000 for a formal consultation). As the unit is partially occupied it is unlikely that critical habitat would generate additional requests for conservation efforts beyond what would be required due to the listing of the species. In addition, because the purpose of these activities is to benefit the habitat, the Service does not expect to recommend conservation measures above and beyond those already required by the Bureau of Reclamation as part of the project. (124) Comment: The economic analysis should evaluate the impact of fencing areas on elk populations and the associated impact on hunting. Through limiting the availability of water, there is a potential for a decrease in elk herd sizes leading to decreases in hunting revenue. Our Response: The Forest Service does not expect pipe fencing to affect elk populations because elk will be able VerDate Sep<11>2014 19:08 Mar 15, 2016 Jkt 238001 to jump over the fencing. In addition, elk and other game will be able to access water developments, provided by the Forest Service, installed in pastures with fencing around streams. Costs related to these water developments are discussed in our response to Comment 114, above. (125) Comment: The conclusion of the economic analysis that impacts to recreation will likely be minor to moderate is inaccurate because recreationists on Forest Service lands are drawn to areas with water. Restricting off-trail uses, including angling, may cause recreationists to travel to other areas and reduce income to communities that depend on the recreation industry. Our Response: See our response to Comment 35, above. (126) Comment: Several commenters state that the economic analysis is incorrect in saying that the proposed critical habitat designation is located in areas where development pressure is low and that in fact development pressure is significant along the Florida River (Unit 7) and is likely to grow. The commenters state that the analysis does not consider the impacts of critical habitat designation on highly valuable private property in Unit 7 and Unit 8, and does not consider that many private landowners hold inheritable and transferable grazing leases for the land that may affect the value of connected private holdings or property rights. Our Response: One comment references La Plata County Planning Department maps that show potential land use opportunities for subdivisions or commercial development projects. However, the commenter did not provide the maps, and we were unable to locate these maps. We consulted available La Plata County Planning Department land use plans and noted that the land use plan for Florida Mesa District, which includes Unit 7, specifically includes an objective to discourage future building in the 100year flood plains, noting benefits to recreation and wildlife. See our response to Comment 47, above, for a response to private holdings and property rights. In section 4 of the economic screening memorandum, we analyze potential perceptional effects of the proposed designation on private grazing lands and associated grazing permits on public lands. We conclude that the total value of grazing supported by privately owned land and Federal leases within the proposed designation is unlikely to exceed $100 million. Thus, should property values be affected by the designation, the diminution in value PO 00000 Frm 00027 Fmt 4701 Sfmt 4700 14289 could not exceed the total value of the properties. Data limitations prevent the estimation of the degree to which values might decrease; however, given current property values, such costs would not exceed $100 million when combined with the other costs estimated in the screening analysis. See our response to Comment 111, above, for information regarding grazing and grazing leases. (127) Comment: The economic analysis should consider how potential future energy development could be impacted by the designation, including impacts on leases held in proposed Units 7 and 8, job impacts, and revenue impacts. New geological information and advances in exploration and production technologies may reveal that areas proposed for critical habitat designation currently regarded as having no or low potential for oil and gas development could actually have much higher potential in the future. Our Response: Our economic analysis includes ‘‘reasonably foreseeable’’ impacts of the proposed designation. The Service conducted outreach efforts to other Federal agencies concerning the likely effects of critical habitat and limited interviews with relevant stakeholders. We received no response on anticipated consultations relating to oil and gas development within critical habitat designation for the jumping mouse. Consequently, based on the best available scientific and commercial data, the economic analysis did not forecast any consultations related to oil and gas. (128) Comment: The economic analysis should consider impacts to the U.S. Army Corps of Engineers (Corps) associated with future consultations. Our Response: The Corps’ Albuquerque District provided the Service with feedback on ongoing and planned activities within the proposed critical habitat units, which include species and habitat management activities and water management projects. Exhibit 6 in the economic analysis presents the total incremental costs by subunit associated with the forecast consultations with the Forest Service and the Corps (IEc 2014, pp. 16– 17). These costs include the administrative costs associated with the consultations, as well as the costs of potential conservation measures, where applicable. Total costs are estimated to be $4.1 million over the next 20 years, or $360,000 on an annualized basis (7 percent discount rate). (129) Comment: Due to the designation of critical habitat, county and State governments may develop regulations regarding private lands that E:\FR\FM\16MRR3.SGM 16MRR3 mstockstill on DSK4VPTVN1PROD with RULES3 14290 Federal Register / Vol. 81, No. 51 / Wednesday, March 16, 2016 / Rules and Regulations restrict future land uses, such as development. Our Response: Section 4 of the economic screening memorandum discusses the potential for indirect incremental costs to occur outside of the section 7 consultation process. These types of costs include triggering additional requirements or project modifications under State laws or regulations, and perceptional effects on markets. The jumping mouse is provided some level of protection in each of the States containing proposed critical habitat designation (see exhibit 8 in the economic screening memorandum). Although protective status for the subspecies may not require implementation of conservation efforts sufficient to protect the subspecies’ habitat, these designations suggest that State agencies are likely to be aware of the presence of the subspecies. We therefore assume that the designation of critical habitat is unlikely to trigger State- or county-level impacts as a result of increased awareness of the subspecies and its habitat in States where the jumping mouse is currently afforded some protective status. We are not aware of any effects of this type associated with prior designations of critical habitat for other species in the region. Therefore, absent specific additional information related to the probability of local governments developing such regulations, and the specific restrictions that could be imposed, we are unable to quantify impacts. (130) Comment: The benefits listed in the economic screening memorandum are lacking specificity and are incapable of being evaluated. Our Response: As stated in section 5 of the economic screening memorandum, benefits resulting from incremental conservation efforts include direct benefits associated with the primary goal of species conservation and ancillary benefits that derive from conservation efforts but are not the purpose of the Act. In order to quantify and monetize these benefits, information is needed to determine the incremental change in the probability of jumping mouse conservation expected to result from the designation and the public’s willingness to pay for such beneficial changes. We were not able to identify any published studies that estimate the value the public places on preserving the jumping mouse. In addition, we do not have information on the expected change in the subspecies’ population levels that may result from critical habitat designation for the jumping mouse. We therefore provide a VerDate Sep<11>2014 19:08 Mar 15, 2016 Jkt 238001 qualitative summary of the expected benefits. Summary of Changes from the Proposed Rule In this rule, we are designating a total of approximately 5,657 ha (13,973 ac) along 272.4 km (169.3 mi) of flowing streams, ditches, and canals as critical habitat for the jumping mouse. This amounts to a reduction of 235 ha (587 ac) from what we proposed to designate on June 20, 2013 (78 FR 37328). We reviewed a number of site-specific comments related to critical habitat for the jumping mouse during the comment periods. In addition, we completed our analysis of areas considered for exclusion under section 4(b)(2) of the Act, completed the final environmental assessment and the finding of no significant impact, and completed the economic analysis of the designation. We fully considered all comments we received from the public, peer reviewers, States, and Federal agencies on the proposed rule and the associated environmental assessment and economic analysis to develop this final designation of critical habitat for the jumping mouse. We received requests to both reduce and expand the designation within many units. Except for minor boundary modifications and two exclusions, we did not receive any information that resulted in modification of our original proposal to designate critical habitat. Our final designation of critical habitat reflects the following changes from the proposed rule: (1) We updated the primary constituent elements (PCEs) for the jumping mouse by removing reed canarygrass from the list of plants and by revising the description of ‘‘tall’’ vegetation to mean an average stubble height of herbaceous vegetation of at least 61 cm (24 inches). The removal of reed canarygrass from the PCEs is a minor technical correction based on a comment from one peer reviewer that indicated that inclusion of reed canarygrass was unusual and based on outdated information. In the proposed rule, we defined average stubble height as measured with a ruler to be 69 cm (27 inches), and vertical cover as measured with a Robel pole to be 61 cm (24 inches). As stubble height and vertical cover are highly correlated, we have revised ‘‘tall’’ vegetation to reflect the measurements made with a Robel pole, which is a more rapid technique and would thus allow for both height and vertical density of vegetation to be assessed. Because of these changes, the PCEs for the jumping mouse in this rule state that the jumping mouse uses areas PO 00000 Frm 00028 Fmt 4701 Sfmt 4700 that support tall (average stubble height of herbaceous vegetation of at least 61 cm (24 inches)) and dense herbaceous riparian vegetation composed primarily of sedges (Carex spp. or Schoenoplectus pungens) and forbs. (2) Based on recently finalized map data that were still in draft form during our initial analysis, we revised mapping errors at the terminus of Subunit 4A and Unit 7. These minor corrections did not reduce the size of Subunit 4A, but reduced Unit 7 by 3 ha (8 ac). (3) Based on a review of land ownership acres, we reversed the land ownership values in Subunit 4B (Upper ˜ Penasco), which was incorrectly presented in the proposed rule as 18 ha (44 ac) Forest Service, 118 ha (291 ac) Private. The correct land ownership values are 118 ha (291 ac), 18 ha (44 ac) Private. (4) Based on a comment and new information we received, we changed the upstream boundary of Unit 7 (Florida River, in the State of Colorado) because the area in our proposal included manmade structures and lands that do not contain suitable habitat or restorable habitat for the subspecies. Our subsequent analysis of Unit 7 determined that approximately 3 ha (8 ac) of unoccupied critical habitat that we proposed is not essential for the conservation of the jumping mouse. This area contains a manmade water diversion structure and associated lands that are not likely restorable habitat and therefore unlikely to ever support the jumping mouse. Accordingly, we made minor changes to the critical habitat boundary and revised the Unit 7 map to remove this area because this area does not meet our definition of critical habitat. The final revised critical habitat in Unit 7 consists of 253 ha (626 ac) of private lands. (5) We carefully considered the benefits of inclusion and the benefits of exclusion, under section 4(b)(2) of the Act, of the specific areas identified in the proposed critical habitat rule, particularly in areas where a management plan specific to the jumping mouse is in place, and also where the maintenance and fostering of important conservation partnerships were a consideration. Based on the results of our analysis, we are excluding approximately 94 ha (230 ac) of Subunits 6A and 6B from this final critical habitat designation for the jumping mouse (see Tribal Lands— Exclusions Under Section 4(b)(2) of the Act, below). Due to these changes in our final critical habitat designation, proposed critical habitat Subunit 6C is now Unit 6 in this rule. E:\FR\FM\16MRR3.SGM 16MRR3 Federal Register / Vol. 81, No. 51 / Wednesday, March 16, 2016 / Rules and Regulations Exclusion from critical habitat should not be interpreted as a determination that these areas are unimportant, that they do not provide physical or biological features essential to the conservation of the species (for occupied areas), or are not otherwise essential for conservation (for unoccupied areas); exclusion merely reflects the Secretary’s determination that the benefits of excluding those particular areas outweigh the benefits of including them in the designation. (5) We corrected an error in our area calculations for Subunit 6C, Bosque del Apache NWR (now Unit 6). In the proposed rule (78 FR 37328; June 20, 2013), we identified 201 ha (496 ac) as critical habitat on the Bosque del Apache NWR. This final rule correctly identifies 403 ha (995 ac) of critical habitat. (6) We corrected an error in our area calculations for Unit 1. In the proposed rule (78 FR 37328; June 20, 2013), we erroneously identified Unit 1 as having 344 ha (849 ac) of private lands within critical habitat. However, there are not any private lands designated as critical habitat within Unit 1. The proposed rule identified 687 ha (1,698 ac) for the total area of Unit 1. The corrected total in this final rule for Unit 1 is 343 ha (849 ac). (7) Descriptions and critical habitat maps can be found later in this document. This final designation of critical habitat represents a reduction of 235 ha (587 ac) from our proposed critical habitat for the jumping mouse for the reasons detailed above. Critical Habitat mstockstill on DSK4VPTVN1PROD with RULES3 Background Critical habitat is defined in section 3 of the Act as: (1) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features: (a) Essential to the conservation of the species and (b) Which may require special management considerations or protection; and (2) Specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. Conservation, as defined under section 3 of the Act, means to use and the use of all methods and procedures that are necessary to bring an endangered or threatened species to the point at which the measures provided VerDate Sep<11>2014 19:08 Mar 15, 2016 Jkt 238001 under 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 prong of the Act’s definition of critical habitat, areas within the geographical area occupied by the species at the time it was listed are included in a critical habitat designation if they contain physical or biological features (1) which are essential to the conservation of the species and (2) which may require special management considerations or protection. For these areas, critical habitat designations identify, to the extent known using the best scientific and commercial data available, those physical or biological features that are essential to the conservation of the species (such as space, food, cover, and protected habitat). In identifying those physical and biological features within an area, we focus on the principal biological or physical constituent elements (primary constituent elements such as roost sites, nesting grounds, seasonal wetlands, water quality, tide, soil type) that are essential to the conservation of the species. Primary PO 00000 Frm 00029 Fmt 4701 Sfmt 4700 14291 constituent elements are the specific elements of physical or biological features that provide for a species’ lifehistory processes, and are essential to the conservation of the species. Under the second prong of the Act’s definition of critical habitat, we can designate critical habitat in areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. For example, an area currently occupied by the species but that was not occupied at the time of listing may be essential to the conservation of the species and may be included in the critical habitat designation. We designate critical habitat in areas outside the geographic 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 and commercial 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 (for the jumping mouse, as reviewed in the SSA Report (Service 2014)) and the proposed and final rules for listing the species. Additional information sources may include 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 E:\FR\FM\16MRR3.SGM 16MRR3 14292 Federal Register / Vol. 81, No. 51 / Wednesday, March 16, 2016 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES3 necessary for the recovery of the species. For these reasons, a critical habitat designation does not signal that habitat outside the designated area is unimportant or may not be needed for recovery of the species. Areas that are important to the conservation of the species, both inside and outside the critical habitat designation, will continue to be subject to: (1) Conservation actions implemented under section 7(a)(1) of the Act, (2) regulatory protections afforded by the requirement in section 7(a)(2) of the Act for Federal agencies to ensure their actions are not likely to jeopardize the continued existence of any endangered or threatened species, and (3) 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, or other species conservation planning efforts if new information available at the time of these planning efforts calls for a different outcome. Physical or Biological Features In accordance with section 3(5)(A)(i) and 4(b)(1)(A) of the Act and regulations at 50 CFR 424.12, in determining which areas within the geographical area occupied by the species at the time of listing to designate as critical habitat, we consider the physical or biological features that are essential to the conservation of the species and which may require special management considerations or protection. These include, but are not limited to: (1) Space for individual and population growth and for normal behavior; (2) Food, water, air, light, minerals, or other nutritional or physiological requirements; (3) Cover or shelter; (4) Sites for breeding, reproduction, or rearing (or development) of offspring; and (5) Habitats that are protected from disturbance or are representative of the historical, geographic, and ecological distributions of a species. We derive the specific physical or biological features required for the jumping mouse from studies of this VerDate Sep<11>2014 19:08 Mar 15, 2016 Jkt 238001 species’ habitat, ecology, and life history as described below. Unfortunately, there have been relatively few studies on the jumping mouse and its natural life history, and information gaps remain. However, we have used the best available information as described in the SSA Report (Service 2014). To identify the physical and biological needs of the jumping mouse, we relied on conditions at currently occupied locations where the jumping mouse has been observed during surveys, and the best information available on the species and its close relatives. Below, we summarize the physical and biological features needed by foraging, breeding, and hibernating New Mexico meadow jumping mice. For a complete review of the physical and biological features required by the jumping mouse, see chapter 2 in the SSA Report (Service 2014). For the jumping mouse to be considered viable, individual mice need specific vital resources for survival and completion of their life history. One of the most important aspects of the jumping mouse’s life history is that it hibernates about 8 or 9 months out of the year, longer than most mammals. Conversely, it is only active 3 or 4 months during the summer. Within this short timeframe, it must breed, birth, raise young, and store up sufficient fat reserves to survive the next year’s hibernation period. In addition, New Mexico meadow jumping mice only live 3 years or less and have one small litter annually with 7 or fewer young, so the subspecies has limited capacity for high population growth rates due to this low fecundity. As a result, if resources are not available in a single season, jumping mice populations will be greatly impacted. The jumping mouse has exceptionally specialized habitat requirements to support these life-history needs and maintain adequate population sizes. Habitat requirements are characterized by tall (averaging at least 61 cm (24 in)), dense herbaceous (plants with no woody tissue) riparian vegetation composed primarily of sedges and forbs. This suitable habitat is found only when wetland vegetation achieves full growth potential associated with seasonally perennial (persistent water during the vegetation growing season) flowing water and saturated soils. This vegetation is an important resource need for the jumping mouse because it provides vital food sources (insects and seeds), as well as the structural material for building day nests that are used for shelter from predators. It is imperative that the jumping mouse have rich abundant food sources during the PO 00000 Frm 00030 Fmt 4701 Sfmt 4700 summer so that it can accumulate sufficient fat reserves to survive the long hibernation period because the subspecies does not cache food for the winter. In addition, individual New Mexico meadow jumping mice also need intact upland areas adjacent to riparian wetland areas because this is where they build nests or use burrows to give birth to young in the summer and to hibernate over the winter. These suitable habitat conditions need to be in appropriate locations and of adequate sizes to support healthy populations of the jumping mouse. Historically, these wetland habitats would have been in large patches located intermittently along long stretches of streams. The ability of jumping mouse populations to be resilient to adverse stochastic events depends on the robustness of a population and the ability to recolonize if populations are extirpated. Because counting individual New Mexico meadow jumping mice to assess population sizes is very difficult and data are unavailable, we can best measure population health by the size of the intact, suitable habitat available. We estimate that resilient populations of New Mexico meadow jumping mice need at least 27.5 to 73.2 ha (68 to 181 ac) of suitable habitat along 9 to 24 km (5.6 to 15 mi) of flowing streams, ditches, or canals. This distribution and amount of suitable habitat will support multiple subpopulations of New Mexico meadow jumping mice throughout each of the waterways and would provide for sources of recolonization if some areas were extirpated due to disturbances, thereby increasing the chance of jumping mouse populations surviving the elimination or alteration of suitable habitat from a variety of sources and persisting while the necessary vegetation is restored. The suitable habitat patches must be relatively close together because the jumping mouse has limited dispersal capacity for natural recolonization. In our SSA Report (Service 2014), we determined that rangewide, the jumping mouse needs at least two resilient populations (where at least two existed historically) within each of eight identified geographic management areas. The eight geographic management areas are defined by the external boundaries of the geographic distribution of historical populations. We use the term geographic management area to describe the geographic region where populations of jumping mice are located. This number and distribution of resilient populations is expected to provide the subspecies E:\FR\FM\16MRR3.SGM 16MRR3 Federal Register / Vol. 81, No. 51 / Wednesday, March 16, 2016 / Rules and Regulations with the necessary redundancy and representation to provide for viability. Populations of New Mexico meadow jumping mice with a high likelihood of long-term viability require functionally connected areas throughout stream reaches, ditches, or canals. This continuous suitable habitat is necessary to attain the population sizes and densities needed to increase the probability that populations of the subspecies will persist in the face of natural or manmade events and seasonal fluctuations of food resources. Because the subspecies occurs only in areas that are water-saturated, populations have a high potential for extirpation when habitat dries due to ground and surface water depletion, draining of wetlands, or drought. Jumping mouse habitat is subject to dynamic changes that result from flooding and drying of these waterways and the ensuing fluctuations (loss and regrowth) in the quantity and location of dense herbaceous riparian vegetation over time. Consequently, fluctuating water levels may create circumstances in which New Mexico meadow jumping mouse population sizes and locations within a waterway vary over time, and populations may be periodically extirpated and subsequently recolonized. To encompass the daily and seasonal movements of the majority of individual New Mexico meadow jumping mice and allow for the occasional interpopulation dispersal to occur unimpeded, appropriately sized patches of suitable habitat should be no more than 200 m (656 ft) apart within designated waterways (see section 2.7.2 ‘‘Habitat Patch and Population Sizes’’ in the SSA Report (Service 2014)). mstockstill on DSK4VPTVN1PROD with RULES3 Primary Constituent Elements Under the Act and its implementing regulations, we are required to identify the physical or biological features essential to the conservation of the jumping mouse in the geographic area occupied by the species at the time of listing, focusing on the features’ primary constituent elements (PCEs). Primary constituent elements are those specific elements of physical or biological features that provide for a species’ lifehistory processes and that 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 (see chapter 2 in the SSA Report (Service 2014)), we determine that the PCEs specific to the jumping mouse consist of the following: VerDate Sep<11>2014 19:08 Mar 15, 2016 Jkt 238001 (1) Riparian communities along rivers and streams, springs and wetlands, or canals and ditches that contain: (a) Persistent emergent herbaceous wetlands especially characterized by presence of primarily forbs and sedges (Carex spp. or Schoenoplectus pungens); or (b) Scrub-shrub riparian areas that are dominated by willows (Salix spp.) or alders (Alnus spp.) with an understory of primarily forbs and sedges; and (2) Flowing water that provides saturated soils throughout the jumping mouse’s active season that supports tall (average stubble height of herbaceous vegetation of at least 61 cm (24 inches)) and dense herbaceous riparian vegetation composed primarily of sedges (Carex spp. or Schoenoplectus pungens) and forbs, including, but not limited to, one or more of the following associated species: Spikerush (Eleocharis macrostachya), beaked sedge (Carex rostrata), rushes (Juncus spp. and Scirpus spp.), and numerous species of grasses such as bluegrass (Poa spp.), slender wheatgrass (Elymus trachycaulus), brome (Bromus spp.), foxtail barley (Hordeum jubatum), or Japanese brome (Bromus japonicas), and forbs such as water hemlock (Circuta douglasii), field mint (Mentha arvense), asters (Aster spp.), or cutleaf coneflower (Rudbeckia laciniata); and (3) Sufficient areas of 9 to 24 km (5.6 to 15 mi) along a stream, ditch, or canal that contain suitable or restorable habitat to support movements of individual New Mexico meadow jumping mice; and (4) Adjacent floodplain and upland areas extending approximately 100 m (330 ft) outward from the boundary between the active water channel and the floodplain (as defined by the bankfull stage of streams) or from the top edge of the ditch or canal. This designation is designed to support the necessary life-history functions of the subspecies and the areas containing those PCEs in the appropriate quantity and spatial arrangement essential for the conservation of the subspecies. We determined that these primary constituent elements provide for the physiological, behavioral, and ecological requirements of the subspecies. New Mexico meadow jumping mice require herbaceous riparian vegetation associated with seasonally perennial flowing water and adjacent uplands that can support the necessary habitat components needed by foraging, breeding, and hibernating individuals. Jumping mice must also have sufficient cover within which to forage in an appropriate configuration PO 00000 Frm 00031 Fmt 4701 Sfmt 4700 14293 and proximity to day, maternal, and hibernation nesting sites. This vegetation enables jumping mice to find adequate food resources not only to successfully raise young, but also to accumulate sufficient body fat for survival during hibernation. The appropriate configuration is provided by protecting multiple local subpopulations throughout a minimum length of stream, ditch, or canal of 9 to 24 km (5.6 to 15 mi) of suitable habitat, as described above, which will ensure sufficient resiliency of populations such that the species will be able to withstand and recover from periodic disturbances. Therefore, this amount of suitable habitat will support multiple local populations throughout each of the waterways, thereby increasing the chance of jumping mouse populations surviving periodic temporary disturbances of suitable habitat. Populations of New Mexico meadow jumping mice with a high likelihood of long-term viability require functionally connected areas throughout stream reaches, ditches, or canals. This continuous suitable habitat is necessary to attain the population sizes and densities needed to ensure that the subspecies will persist in the face of stochastic events and seasonal fluctuations of food resources. This configuration of suitable habitat will encompass the daily and seasonal movements of the majority of individual jumping mice and will allow occasional inter-population dispersal to occur. Special Management Considerations or Protection When designating critical habitat, we assess whether the specific areas within the geographic area occupied by the species at the time of listing contain features that are essential to the conservation of the species and which may require special management considerations or protection. The features essential to the conservation of this species may require special management considerations or protection to reduce the following threats: Excessive grazing pressure, water use and management, highway reconstruction, commercial and residential development, severe wildland fires, unregulated recreation, and the reduction in the distribution and abundance of beaver ponds. These activities have the potential to affect the PCEs if they are conducted within or adjacent to units designated as critical habitat. Management activities that could ameliorate these threats include, but are not limited to: (1) Maintaining occupied jumping mouse sites with active E:\FR\FM\16MRR3.SGM 16MRR3 14294 Federal Register / Vol. 81, No. 51 / Wednesday, March 16, 2016 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES3 management to continue the protection of these areas from livestock grazing; (2) restoring, enhancing, and managing additional habitat through fencing of riparian areas, especially the Santa Fe, Lincoln, and Apache-Sitgreaves National Forests (this will facilitate restoration of the required vegetative components and support the expansion of populations of the jumping mouse into areas that were historically occupied by the species, but where natural expansion is currently unlikely because no suitable habitat remains); (3) restoring habitat on Bosque del Apache NWR or other areas by carefully managing mowing (e.g., not mowing during the active season) and removing willows older than 5 years to maintain early seral habitat conditions along irrigation canals and ditches; and (4) developing and implementing a beaver management or restoration plan for occupied and historic jumping mouse localities where appropriate. In addition, Federal agencies should look to guidance provided by the completed recovery outline (available online at http://www.regulations.gov under Docket No. FWS–R2–ES–2013–0023) and the recovery plan that will be developed for the jumping mouse. A more complete discussion of the threats to the jumping mouse and its habitats can be found in the SSA Report (Service 2014). Criteria Used To Identify Critical Habitat The following discussion describes the process and methodology that we used to identify the areas to propose and finalize critical habitat units for the jumping mouse. As required by section 4(b)(2) of the Act, we used the best scientific data available to designate critical habitat. For this rule, we relied heavily on the analysis of biological information reviewed in the SSA Report (Service 2014). In accordance with section 3(5)(A) of the Act and its implementing regulation at 50 CFR 424.12(b), we determined the specific areas within the geographical area occupied by the species, at the time it is listed, where are found the physical or biological features that are essential to the conservation of the species and which may require special management considerations or protections. Next, we determined the specific areas outside the geographical area occupied by the species at the time it is listed that are found to be essential for the conservation of the species. Finally, we described how we determined the lateral extent and mapping processes used in developing the critical habitat units. VerDate Sep<11>2014 19:08 Mar 15, 2016 Jkt 238001 Occupied Areas—Section 3(5)(A)(i) of the Act Our initial step was to determine what areas are within the geographic area occupied by the jumping mouse at the time of listing (occupied areas). In reviewing all of the available data on jumping mouse occurrences, we decided that verified collections of the species between 2005 to 2014 would be used to identify the areas considered occupied by the jumping mouse at the time of listing. This timeframe was selected because we found no capture records of jumping mice between 1996 and 2005. For a detailed review of this assessment, see chapter 3 of the SSA Report (Service 2014), where we referenced historical records as those from the 1980s and 1990s, and current records as those verified from 2005 to 2014. This assessment resulted in 29 locations of the jumping mouse considered occupied at the time of listing. However, there is uncertainty regarding the current status of the 29 populations that have been found since 2005 because 11 of the 29 populations and their habitat have been substantially compromised since 2011 (due to water shortages, grazing, or wildfire and postfire flooding), and these populations could already be extirpated. Moreover, an additional seven populations may continue to experience loss of habitat from postfire flooding in the near term. Nevertheless, there is no information that shows the jumping mouse to be extirpated from any of these 29 locations, so we conclude that the best available information supports that these areas are within the geographic area occupied by the jumping mouse at the time of listing. The areas considered occupied include the 29 locations that contain suitable habitat plus an additional 0.8km (0.5-mi) segment upstream and downstream of these capture localities. These additional 0.8-km (0.5-mi) segments are considered occupied because this is approximately the maximum distance travelled between two successive points by all radiocollared jumping mice on Bosque del Apache NWR, which was 744 m (2,441 ft) (Frey and Wright 2012, pp. 16, 109; Figure 9). Although the subspecies usually exhibits extreme site fidelity with regular daily and seasonal movements of less than 100 m (330 feet) (Frey and Wright 2012, pp. 16, 109), these additional 0.8-km (0.5-mi) segments have the potential to be occupied during the active season of the subspecies if a jumping mouse moves the known maximum distance beyond the protective herbaceous cover found PO 00000 Frm 00032 Fmt 4701 Sfmt 4700 within the 29 locations. For each of the occupied areas, we next decided whether these areas contain the PCEs of the physical and biological features, which may require special management considerations or protections. As noted, all of the 29 locations found since 2005 are considered currently occupied by the jumping mouse and contain the PCEs 1 and 2. Each of these 29 locations documented since 2005 occur within eight critical habitat units. Three of these eight units have multiple subunits, bringing the total number of units and subunits to 21. Two of these subunits are considered unoccupied (discussed below), and the remaining 19 subunits contain the 29 locations documented since 2005. For a site-bysite analysis of the 29 locations, see chapter 4 of the SSA Report (Service 2014). Partially Occupied Areas—Section 3(5)(A)(ii) of the Act We then decided which areas that are outside the geographic area occupied by the species at the time of listing (unoccupied areas) are essential for the conservation of the jumping mouse. We first determined that, because of the loss of a substantial number (approximately 70) of historically occupied locations of the jumping mouse (Service 2014, chapter 4), the number and distribution of populations need to increase at all of the currently occupied areas for the jumping mouse to be viable. Increased populations at these areas are needed to maintain sufficient redundancy and representation to provide for the subspecies’ viability (see chapters 3 and 6 of the SSA Report (Service 2014)). However, the areas occupied by the mouse since 2005 do not contain enough suitable, connected habitat to support resilient populations of jumping mouse (see chapter 3 of the SSA Report (Service 2014)). Because the subspecies needs multiple local populations along streams and other waterways to maintain genetic diversity and provide sources for recolonization when local populations are extirpated, areas adjacent to the 29 locations (including the 0.8-km (0.5-mi) areas) are essential to the conservation of the subspecies to provide for population resiliency and subspecies viability. We found that it is essential for the conservation of the jumping mouse to expand its occupied habitats into areas considered currently unoccupied, but within its historical range. The inclusion of essential but unoccupied areas will not only protect these areas and provide habitat for population expansion from the 29 locations documented since 2005, but E:\FR\FM\16MRR3.SGM 16MRR3 mstockstill on DSK4VPTVN1PROD with RULES3 Federal Register / Vol. 81, No. 51 / Wednesday, March 16, 2016 / Rules and Regulations also provide sites for possible future reintroduction that will improve the subspecies’ status through added population resiliency. For example, when unoccupied habitat is restored, the jumping mouse would have the ability to expand beyond the 0.8-km (0.5-mi) areas surrounding each of the 29 locations and populate the additional areas along the individual stream reaches or waterways. Consequently, the currently unoccupied areas within individual stream reaches or waterways need to be of sufficient size to allow for the expansion of current and future populations and provide connectivity (active season movements and dispersal) between multiple populations as they become established. So for each of the 19 units (encompassing 29 locations) considered occupied, we include areas that are considered unoccupied that are adjacent to the occupied areas in designated critical habitat units. The currently occupied areas contain PCEs 1 and 2. However, the unoccupied areas are essential for the conservation of the subspecies, and the all of the PCEs (1, 2, 3, and 4) can be restored along streams and other waterways within these unoccupied areas. Each of these 19 units are considered ‘‘partially occupied’’ because they include some small areas (within the 0.8-km (0.5-mi) areas) that have been occupied by the species since 2005, and other larger areas upstream or downstream (beyond the 0.8-km (0.5-mi) areas) that are not known to be occupied by the jumping mouse at the time of listing. To decide what geographic areas of unoccupied habitat upstream and downstream adjacent to occupied areas should be included in critical habitat units, we focused on areas that had historical collection records confirmed to be the jumping mouse. Historic capture locations were then used to approximate previously occupied habitat and guide our designation of unoccupied critical habitat areas. Within the historic range of the subspecies, we then identified areas of potential habitat that have been recently restored, areas that likely still contain the habitat characteristics sufficient to support the life history of the subspecies, and areas where functionally connected patches of suitable habitat will be required to provide for resilient populations and to conserve the subspecies. In considering how much area to include in critical habitat units we considered how much suitable habitat might be needed to support resilient populations. Based upon review of the available information, jumping mouse VerDate Sep<11>2014 19:08 Mar 15, 2016 Jkt 238001 populations generally need connected areas of suitable habitat along at least 9 to 24 km (5.6 to 15 mi) of continuous suitable habitat to support viable populations of jumping mice with a high likelihood of long-term persistence (see section 2.7 of the SSA Report (Service 2014)). This stream length will increase the probability of the populations to withstand catastrophic events such as wildfire. We used this length as a general guide for determining critical habitat units and subunits along waterways, but each unit and subunit were evaluated on a site-bysite basis to determine the best configuration of critical habitat to support jumping mouse populations in that unit or subunit. In designating critical habitat boundaries, we also considered the need for movement and dispersal to occur between suitable habitat areas within a critical habitat unit or subunit. We do not anticipate that suitable habitat containing dense riparian herbaceous vegetation will be continuous throughout each of the critical habitat units, but rather, that suitable habitat should be dispersed throughout waterways in the critical habitat units to allow for natural behaviors and perhaps occasional longer distance (i.e., from 200 to 700 m (656 to 2,297 ft)) exploratory movements (Frey and Wright 2012, p. 109), including dispersal. These movement and dispersal corridors are needed to connect occupied sites to one another within individual units (see section 2.6 of the SSA Report (Service 2014)). Historically, populations were likely distributed throughout drainages, with a series of interconnected local populations (also called subpopulations) occupying suitable habitat patches within individual streams. Interconnected local populations were likely arranged within suitable habitat patches along streams in such a way that individuals could fulfill their daily and seasonal movements of about 200 m (656 ft), but also occasionally move greater distances (i.e., 200 to 744 m (656 to 2,441 ft)) to disperse to other habitat patches within stream areas (Frey and Wright 2012, p. 109). This ability to have multiple local populations is important to maintaining genetic diversity within the populations along streams and providing sources for recolonization when local populations are extirpated. For example, if a site is extirpated, recolonization from persisting local source populations within the same general area would have to occur along riparian corridors PO 00000 Frm 00033 Fmt 4701 Sfmt 4700 14295 that contain suitable habitat (Frey 2011, p. 41). Based on the above information, the most likely routes for dispersal of jumping mice among sites would occur along perennial or intermittent drainages where suitable habitat is present or restorable. Although we did not select specific areas in which to designate movement corridors (but rather geographic areas of suitable habitat along at least 9 to 24 km (5.6 to 15 mi)), we assumed perennial drainages are better movement corridors than ephemeral or intermittent drainages, and the ephemeral or intermittent drainages are better movement corridors than upland routes. We also assume that, if all else is equal, the shorter the route the more likely New Mexico meadow jumping mice will successfully move. Because jumping mouse habitat is subject to the dynamic process of flooding, inundation, and drought, the extent and location of riparian corridors along streams and rivers may not remain constant and, depending on local conditions, are likely to expand and contract. Nevertheless, areas containing suitable habitat should be no more than 200 m (656 ft) apart within these waterways, which would encompass the majority of daily and seasonal movements of individual jumping mice (Wright and Frey 2012, p. 109). This configuration of habitat provides for a local population to be ‘‘functionally connected’’ (as described in the SSA Report (Service 2014)), such that the movements of the majority of individual jumping mice and perhaps occasional interpopulation dispersal occur unimpeded. As a result of this analysis, we have determined that some of the areas within the critical habitat units are essential for the conservation of the species even though they do not contain currently suitable habitat and are more than 0.8 km (0.5 mi) away from occupied sites. For example, within Unit 2, we include the Harold Brock Fishing Easement that is located between the two sites that we consider occupied on Coyote Creek. The fishing easement is considered unoccupied because there are no current records indicating this area is occupied, it does not currently contain suitable habitat, and it is beyond the distance travelled by jumping mice for the majority of daily and seasonal movements within the two occupied sites along Coyote Creek. Restoring currently degraded habitat in units like Coyote Creek is essential to the conservation of the subspecies because it expands the available habitat within a given unit that can be occupied by the subspecies and E:\FR\FM\16MRR3.SGM 16MRR3 14296 Federal Register / Vol. 81, No. 51 / Wednesday, March 16, 2016 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES3 provides for potentially increasing population size within that riparian system. Increased population sizes are essential to conserving the subspecies as higher numbers of individuals in the populations increases the likelihood of the persistence of the populations over time, increasing population resiliency. Completely Unoccupied Areas—Section 3(5)(A)(ii) of the Act We next considered whether there were any other areas within the species’ historical range but outside of the geographic area occupied at the time of listing (in other words completely unoccupied areas) that are essential for the conservation of the jumping mouse. We examined whether resilient populations at the 19 partially occupied units and subunits (with 29 locations occupied since 2005) would be sufficient to provide for viability of the jumping mouse. We reviewed the current and historical distribution of the subspecies within each of the eight geographic management areas across its range and the need for sufficient redundancy for the jumping mouse (see chapter 3 of the SSA Report (Service 2014)). We found five of the eight geographic management areas would have sufficient populations to support species viability if the current jumping mouse areas were expanded to provide for resilient populations. The three exceptions where the historic distribution is not adequately represented by recently located populations were in the Jemez Mountains, the Sacramento Mountains, and the Rio Grande geographic management areas. We found that the conservation of the subspecies requires increasing the number and distribution of populations of the jumping mouse to allow for the restoration of new populations and expansion of current populations into areas that were historically occupied within the Jemez Mountains, Sacramento Mountains, and the middle Rio Grande. On June 20, 2013 (78 FR 37328), we proposed four subunits (3C, 4B, 6A, and 6B) within three geographic management areas that are completely unoccupied, but are essential for the conservation of the jumping mouse. Inclusion of these areas provides for expansion of the overall geographic distribution of the species and increases the redundancy within these geographic management areas. Much of the habitat within these four unoccupied subunits contained New Mexico meadow jumping mice as recently as the late 1980s (Morrison 1985, entire; 1988, pp. 22–35; 1989, pp. 7–23; 1992, p. 311; Frey 2005a, p. 7). In this rule, we have VerDate Sep<11>2014 19:08 Mar 15, 2016 Jkt 238001 excluded proposed subunits 6A and 6B (Isleta Pueblo and Ohkay Owingeh) from the final designation under section 4(b)(2) of the Act because the benefits of exclusion outweigh the benefits of including these areas as critical habitat (see Tribal Lands—Exclusions Under Section 4(b)(2) of the Act, below). In evaluating what areas are essential for jumping mouse, we are not designating as critical habitat a number of historical locations of the jumping mouse because we do not think they are essential for conservation of the species. These omitted locations are, compared to other habitat segments, of lesser quality, have a low potential of being restored, and would not contribute to connectivity, stability, or protection against catastrophic loss. Consequently, we are not designating other historical locations along riparian areas as critical habitat because we did not find them to be essential for conservation of the jumping mouse. The currently unoccupied units that are included in this final designation (Subunits 3C and 4B) both contain perennial flowing water with saturated soils, making these units highly restorable and essential for the conservation of the species. Lateral Extent To allow normal behavior, to ensure protection of the jumping mouse and the physical and biological habitat features, and to ensure maintenance of sufficient PCEs on which the subspecies depends, the outward, lateral extent of critical habitat from the riparian habitats should at least approximate the 100-year floodplain. Unfortunately, floodplains have not been mapped for many streams within the jumping mouse’s range. While alternative delineation of critical habitat based on geomorphology and existing vegetation could accurately portray the presence and extent of required habitat components, we lack the explicit data to allow us to conduct such a delineation of critical habitat on a site-by-site basis. To address these issues, we use a set distance of 100 m (328 ft) outward from either side of the bankfull stage, which is defined as the boundary between the active water channel (i.e., river or stream) and the floodplain (Moody et al. 2003, entire). Moreover, some locations are associated with canals and ditches (e.g., Bosque del Apache NWR) that are manmade and do not have any associated floodplain. For ditches or canals we use a set distance of 100 m (328 ft) outward from the top edge of the ditch or canal because there is no bankfull stage. We consider this width necessary to accommodate not only stream meandering and high flows within natural waterways, but also to PO 00000 Frm 00034 Fmt 4701 Sfmt 4700 capture essential upland areas to ensure that this designation contains the features essential to all of the lifehistory stages (e.g., foraging, breeding, and hibernation) and the conservation of the subspecies (see chapter 3 of the SSA Report (Service 2014)). While this lateral extent of critical habitat may not extend outward to all areas used by individual jumping mice over time, we expect that it will support the full range of PCEs essential for conservation of jumping mouse populations in these reaches. Bankfull stage is defined as the upper level of the range of channel-forming flows, which transport the bulk of available sediment over time. Bankfull stage is generally considered to be that level of stream discharge reached just before flows spill out onto the adjacent floodplain. The discharge that occurs at bankfull stage, in combination with the range of flows that occur over a length of time, govern the shape and size of the river channel (Rosgen 1996, pp. 2–2 to 2–4). The use of bankfull stage and 100 m (328 ft) on either side recognizes the naturally dynamic nature of riverine systems, recognizes that floodplains are an integral part of the stream ecosystem, and contains the area and associated features essential to the conservation of the subspecies. The location of the bankfull stage is not an ephemeral feature, meaning it does not disappear. Bankfull stage can be determined and delineated for any stream and for the canals and ditches we are designating as critical habitat. There are consistent indicators or physical evidence (e.g., deposition features, slopes of stream banks, and vegetation) and regional relationships that help to identify the bankfull stage in the arid southwest (Moody et al. 2003, entire). We acknowledge that the bankfull stage of any given segment may change depending on the magnitude of a flood event, but it is a definable and standard measurement for stream systems. Following high flow events, stream channels can move from one side of a canyon to the opposite side, for example. If we were to designate critical habitat based on the location of the stream on a specific date, the area within the designation could be a dry channel in less than 1 year from the publication of the determination, should a high flow event occur. Mapping The critical habitat units were first delineated by creating rough areas for each unit by screen-digitizing polygons using Google Earth. We then digitized and refined the units using ArcMap version 10 (Environmental Systems E:\FR\FM\16MRR3.SGM 16MRR3 Federal Register / Vol. 81, No. 51 / Wednesday, March 16, 2016 / Rules and Regulations Research Institute, Inc.), a computer GIS program. The polygons were created by using current (2005 to 2014) and historical (1985 to 1996) species location points. No New Mexico meadow jumping mice were captured between 1996 and 2005, and so the delineation of current and historic is based on dates of capture records or lack of capture records. These current and historic location points were then used in conjunction with hydrology, vegetation, and expert opinion. We set the limits of each critical habitat unit by identifying landmarks (islands, confluences, roadways, crossings, dams) that clearly delineated each area. Stream confluences are often used to delineate the boundaries of a unit for an aquatic species because the confluence of a tributary typically marks a significant change in the size or habitat characteristics of the stream. Stream confluences are also logical and recognizable termini. When a named tributary was not available, or if another landmark provided a more recognizable boundary, we used that landmark as a boundary. When current or historical locations of New Mexico meadow jumping mice were used to delineate upstream and downstream boundaries of critical habitat, we extended the boundaries by about 0.8 km (0.5 mi) to encompass areas that have the potential to be occupied during the active season of the species. We then refined the starting and end points by evaluating appropriate habitat conditions based on the presence or absence of perennial water or suitable vegetation. We selected upstream and downstream cutoff points that would avoid including highly degraded areas that are not likely restorable. For example, we did not include areas that were permanently dewatered or permanently developed (i.e., natural vegetation removed), or areas in which there was some other indication that suitable habitat no longer existed and was not likely to be restored. When determining critical habitat boundaries, we also made every effort to avoid including developed areas such as lands covered by buildings, pavement, and other structures because such lands lack physical or biological habitat features for the jumping mouse. 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 final rule and are not designated as critical habitat. Therefore, a Federal action involving these lands would not trigger section 7 consultation with respect to critical habitat and the requirement of no adverse modification unless the specific action would affect the physical or biological features in the adjacent critical habitat. Summary In summary, we are designating as critical habitat those geographic areas that we have determined to be occupied by the jumping mouse at the time of listing and that contain sufficient elements of physical or biological features to support life-history processes 14297 essential for the conservation of the species and require special management. We are also designating as critical habitat additional areas that are considered presently unoccupied, but are essential to the conservation of the jumping mouse. The critical habitat designation is defined by the maps, as modified by any accompanying regulatory text, presented in the Regulation Promulgation section of this rule. We will make the coordinates or plot points or both on which each map is based available to the public on http:// www.regulations.gov under Docket No. FWS–R2–ES–2013–0014, at http://www.fws.gov/southwest/es/ NewMexico/, and at the New Mexico Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT, above). Final Critical Habitat Designation We are designating approximately 5,657 hectares (13,973 acres) along 272.4 kilometers (169.3 miles) of flowing streams, ditches, and canals in eight units as critical habitat for the jumping mouse in the States of Colorado, New Mexico, and Arizona. Units 3, 4, and 5 have subunits, resulting in a total of 21 subunits and units designated. The critical habitat areas we describe below constitute our current best assessment of areas that meet the definition of critical habitat for the jumping mouse. The units we designate as critical habitat and the approximate area of each critical habitat unit and land ownership are shown in Table 1. A summary of the areas by land ownership and State are provided in Table 2. TABLE 1—CRITICAL HABITAT UNITS FOR THE NEW MEXICO MEADOW JUMPING MOUSE [Area estimates reflect all land within critical habitat unit boundaries] Occupied at the time of listing Stream segment Length of unit, km (mi) Land ownership Area, ha (ac) Unit 1—Sugarite Canyon Chicorica Creek ............................................... Partial ........... State of New Mexico ....................................... State of Colorado ............................................ ........................ ........................ 229 (567) 114 (282) Total Unit 1 ............................................... ...................... ......................................................................... 13.0 (8.1) 344 (849) Unit 2—Coyote Creek mstockstill on DSK4VPTVN1PROD with RULES3 Coyote Creek ................................................... Partial ........... State of New Mexico ....................................... Private ............................................................. ........................ ........................ 26 (64) 213 (527) Total Unit 2 ............................................... ...................... ......................................................................... 11.8 (7.4) 239 (591) ........................ ........................ ........................ 223 (550) 10 (26) 1 (3) Unit 3—Jemez Mountains Subunit 3A—San Antonio: San Antonio Creek ................................... VerDate Sep<11>2014 20:47 Mar 15, 2016 Jkt 238001 Partial ........... PO 00000 Frm 00035 Forest Service ................................................. Private ............................................................. Other Federal Agency ..................................... Fmt 4701 Sfmt 4700 E:\FR\FM\16MRR3.SGM 16MRR3 14298 Federal Register / Vol. 81, No. 51 / Wednesday, March 16, 2016 / Rules and Regulations TABLE 1—CRITICAL HABITAT UNITS FOR THE NEW MEXICO MEADOW JUMPING MOUSE—Continued [Area estimates reflect all land within critical habitat unit boundaries] Occupied at the time of listing Land ownership Total Subunit 3A ............................... ...................... ......................................................................... 11.5 (7.1) 234 (579) Subunit 3B—Rio Cebolla: Rio Cebolla ............................................... Partial ........... Forest Service ................................................. Private ............................................................. State of New Mexico ....................................... ........................ ........................ ........................ 278 (686) 76 (187) 76 (187) Stream segment Length of unit, km (mi) Area, ha (ac) Total Subunit 3B ............................... Subunit 3C—Rio de las Vacas: Rio de las Vacas ...................................... ...................... ......................................................................... 20.7 (12.9) 429 (1,060) No ................ Forest Service ................................................. Private ............................................................. ........................ ........................ 332 (820) 122 (302) Total Subunit 3C ............................... ...................... ......................................................................... 23.3 (14.5) 454 (1,122) Total Unit 3 ................................ ...................... ......................................................................... 55.5 (34.5) 1,118 (2,761) Unit 4—Sacramento Mountains Subunit 4A—Silver Springs: Silver Springs Creek ................................ Total Subunit 4A ............................... ˜ Subunit 4B—Upper Penasco: ˜ Rio Penasco ............................................. Total Subunit 4B ............................... ˜ Subunit 4C—Middle Penasco: ˜ Rio Penasco ............................................. Total Subunit 4C ............................... Subunit 4D—Wills Canyon: Mauldin Springs ........................................ Partial ........... Forest Service ................................................. Private ............................................................. ........................ ........................ 28 (70) 77 (190) ...................... ......................................................................... 5.2 (3.2) 105 (260) No ................ Forest Service ................................................. Private ............................................................. ........................ ........................ 118 (291) 18 (44) ...................... ......................................................................... 6.4 (4.0) 136 (335) Partial ........... Forest Service ................................................. Private ............................................................. ........................ ........................ 26 (65) 238 (587) ...................... ......................................................................... 11.4 (7.1) 264 (652) Partial ........... Forest Service ................................................. Private ............................................................. ........................ ........................ 65 (162) 46 (113) Total Subunit 4D ............................... Subunit 4E—Agua Chiquita Canyon: Agua Chiquita Creek ................................ ...................... ......................................................................... 5.5 (3.4) 111 (275) Partial ........... Forest Service ................................................. ........................ 161 (398) Total Subunit 4E ............................... ...................... ......................................................................... 7.7 (4.8) 161 (398) Total Unit 4 ................................ ...................... ......................................................................... 36.2 (22.5) 777 (1,920) Unit 5—White Mountains Subunit 5A—Little Colorado: Little Colorado River ................................. Total Subunit 5A ....................................... Subunit 5B—Nutrioso: Nutrioso River ........................................... mstockstill on DSK4VPTVN1PROD with RULES3 Total Subunit 5B ............................... Subunit 5C—San Francisco: San Francisco River ................................. Total Subunit 5C ............................... Subunit 5D—East Fork Black: East Fork Black River .............................. Total Subunit 5D ............................... Subunit 5E—West Fork Black: West Fork Black River ............................. VerDate Sep<11>2014 20:47 Mar 15, 2016 Jkt 238001 Partial ........... Forest Service ................................................. Private ............................................................. ........................ ........................ 445 (1,100) 33 (81) ...................... ......................................................................... 22.6 (14.0) 478 (1,181) Partial ........... Forest Service ................................................. Private ............................................................. ........................ ........................ 142 (351) 271 (670) ...................... ......................................................................... 20.4 (12.7) 413 (1,021) Partial ........... Forest Service ................................................. Private ............................................................. ........................ ........................ 68 (167) 184 (455) ...................... ......................................................................... 11.8 (7.3) 252 (622) Partial ........... Forest Service ................................................. ........................ 421 (1,040) ...................... ......................................................................... 20.3 (12.6) 421 (1,040) Partial ........... Forest Service ................................................. Private ............................................................. ........................ ........................ 415 (1,025) 17 (43) PO 00000 Frm 00036 Fmt 4701 Sfmt 4700 E:\FR\FM\16MRR3.SGM 16MRR3 14299 Federal Register / Vol. 81, No. 51 / Wednesday, March 16, 2016 / Rules and Regulations TABLE 1—CRITICAL HABITAT UNITS FOR THE NEW MEXICO MEADOW JUMPING MOUSE—Continued [Area estimates reflect all land within critical habitat unit boundaries] Occupied at the time of listing Total Subunit 5E ............................... Subunit 5F—Boggy and Centerfire: Boggy and Centerfire Creeks ................... Total Subunit 5F ................................ Subunit 5G—Corduroy: Corduroy Creek ........................................ Land ownership Length of unit, km (mi) State of Arizona .............................................. Stream segment ........................ 49 (120) ...................... ......................................................................... 23.0 (14.3) 481 (1,188) Partial ........... Forest Service ................................................. ........................ 197 (485) ...................... ......................................................................... 8.9 (5.5) 197 (485) Partial ........... Forest Service ................................................. ........................ 104 (256) Area, ha (ac) Total Subunit 5G ............................... Subunit 5H—Campbell Blue: Campbell Blue Creek ............................... ...................... ......................................................................... 4.8 (3.0) 104 (256) Partial ........... Forest Service ................................................. Private ............................................................. ........................ ........................ 100 (247) 2 (6) Total Subunit 5H ............................... ...................... ......................................................................... 4.8 (3.0) 102 (253) Total Unit 5 ................................ ...................... ......................................................................... 116.6 (72.4) 2,448 (6,046) Unit 6—Bosque del Apache NWR Canal ............................................................... Partial ........... Service ............................................................ ........................ 403 (995) Total Unit 6 ............................................... ...................... ......................................................................... 21.1 (13.1) 403 (995) Unit 7—Florida Florida River .................................................... Partial ........... Private ............................................................. Bureau of Land Mgt ........................................ ........................ ........................ 251 (620) 3 (6) Total Unit 7 ............................................... ...................... ......................................................................... 13.6 (8.4) 253 (626) Unit 8—Sambrito Creek Sambrito Creek ................................................ Partial ........... State of Colorado ............................................ Private ............................................................. ........................ ........................ 61 (150) 14 (35) Total Unit 8 ............................................... ...................... ......................................................................... 4.6 (2.9) 75 (185) Grand Total All Units ......................... ...................... ......................................................................... 272.4 (169.3) 5,657 (13,973) Note: Area sizes may not sum due to rounding. TABLE 2—CRITICAL HABITAT UNITS FOR THE NEW MEXICO MEADOW JUMPING MOUSE, SUMMARIZED BY LAND OWNERSHIP AND STATE Land ownership, ha (ac) State Federal State Private Total New Mexico ..................................................................................................... Arizona ............................................................................................................. Colorado .......................................................................................................... 1,635 (4,040) 1,892 (4,671) 3 (6) 331 (818) 49 (120) 175 (432) 800 (1,976) 507 (1,255) 265 (655) 2,766 (6,834) 2,448 (6,046) 443 (1,093) Total .......................................................................................................... 3,530 (8,717) 555 (1,370) 1,572 (3,886) 5,657 (13,973) mstockstill on DSK4VPTVN1PROD with RULES3 Unit Descriptions We present brief descriptions of each of the critical habitat units, and reasons why they meet the definition of critical habitat for the jumping mouse, below. For additional information on each unit, see chapter 4 in the SSA Report (Service 2014). We consider the 29 locations where the jumping mouse has been found VerDate Sep<11>2014 20:47 Mar 15, 2016 Jkt 238001 since 2005 to be within the geographic area occupied at the time of listing (occupied areas). All of these 29 occupied areas are contained within 19 of the 21 critical habitat units that we refer to as partially occupied in Table 1. There are two completely unoccupied subunits (Subunit 3C—Rio de las Vacas, ˜ and Subunit 4B—Upper Penasco). We specifically describe each of the PO 00000 Frm 00037 Fmt 4701 Sfmt 4700 occupied areas within the critical habitat unit descriptions presented below. All of these occupied areas contain suitable habitat with one or more of the essential physical or biological features that may require special management and are, therefore, included in the designation under section 3(5)(A)(i) of the Act. All of these occupied areas exhibit both PCE 1— E:\FR\FM\16MRR3.SGM 16MRR3 mstockstill on DSK4VPTVN1PROD with RULES3 14300 Federal Register / Vol. 81, No. 51 / Wednesday, March 16, 2016 / Rules and Regulations appropriate wetland vegetation communities, and PCE 2—flowing water with tall herbaceous vegetation. The occupied areas within these 19 units may require special management or protection to address the direct or indirect loss or alteration of the essential physical and biological features. These special management considerations or protections may be needed to address water development, recreational use, livestock grazing, road reconstruction, the loss of beaver ponds, and vegetation mowing. Every critical habitat unit contains areas outside the geographic area occupied by the species at the time of listing (unoccupied areas) that we conclude are essential for the conservation of the jumping mouse. As noted, two of these units (Subunits 3C and 4B) are considered completely unoccupied. The remaining 19 critical habitat subunits include unoccupied areas that are upstream or downstream of the occupied areas, but do not currently have the necessary vegetation to protect jumping mice from predators or to provide food sources. We describe these subunits containing both occupied and unoccupied areas within the same stream reach as partially occupied (Table 1). All of the completely or partially occupied areas currently have flowing water to allow for future restoration of the PCEs 1 and 2, as well as PCE 3—sufficient areas of streams, ditches, or canals; and PCE 4—adjacent floodplain and upland areas that would collectively provide the needed physical and biological features of habitat required to sustain the species’ lifehistory processes. We conclude that all of these areas, whether they are within partially occupied or completely unoccupied units, are essential to the conservation of the jumping mouse because: (1) The areas occupied by the mouse since 2005 do not contain enough suitable, connected habitat to support resilient populations of jumping mouse; (2) the currently unoccupied segments within individual stream reaches or waterways need to be of sufficient size to allow for the expansion of populations and provide connectivity (active season movements and dispersal) between multiple populations as they become established; (3) additional areas need habitat protection to allow restoration of the necessary herbaceous vegetation for possible future reintroductions; and (4) multiple local populations along streams are important to maintaining genetic diversity within the populations and for providing sources for recolonization if local populations are extirpated. Therefore, all of the partially VerDate Sep<11>2014 19:08 Mar 15, 2016 Jkt 238001 occupied or completely unoccupied areas are included in the designation under section 3(5)(A)(ii) of the Act. Unit 1—Sugarite Canyon Unit 1 consists of 344 ha (849 ac) along 13.0 km (8.1 mi) of streams on private lands and areas owned by the States of Colorado and New Mexico. The Colorado stream areas are found within Las Animas County, Colorado, and the New Mexico stream areas are found within Colfax County, New Mexico. The unit begins 0.6 km (0.4 mi) north of the headwaters of Lake Dorothey, Colorado, along the East Fork and 1.1 km (0.7 mi) north of the headwaters of Lake Dorothey along the West Fork of Schwacheim Creek and follows the drainage downstream, to include a 2.0-km (1.25-mi) segment of Chicorica Creek that is a tributary flowing into the headwaters of Lake Maloya and a 0.8-km (0.5-mi) segment of Segerstrom Creek, which is a tributary flowing into the western edge of Lake Maloya, New Mexico. The unit continues through Lake Maloya and includes about 1.8 km (1.1 mi) of the small western tributary Soda Pocket Creek, which flows into and includes lower Chicorica Creek below Lake Maloya Dam downstream to the terminus of the area at Lake Alice Dam within Sugarite Canyon State Park. Based upon captures of the jumping mouse since 2005 (Frey 2006d, pp. 19– 21, 67; Frey and Kopp 2013, entire; Colorado Parks and Wildlife 2013a, p. 1) approximately 2.8 ha (7 ac) within Unit 1 are considered occupied at the time of listing and contain suitable habitat. The occupied areas occur within Sugarite Canyon State Park in New Mexico along Sugarite Canyon at five locations: (1) Chicorica Creek 0.6 km (0.4 mi) below Lake Maloya Dam; (2) Segerstrom Creek just above the western confluence with Lake Maloya; (3) the headwaters of Lake Alice; and (4) Soda Pocket Creek and Campground along the two streams (2 separate locations) that cross the open meadow on Barlett Mesa near the campfire program area and behind campsite number 16 (Frey 2006d, pp. 19–21, 67; Frey and Kopp 2013, entire; Colorado Parks and Wildlife 2013a, p. 1). In 2011, the Track Fire burned nearly the entire watershed of Sugarite Canyon, significantly impacting the population at Sugarite Canyon State Park (Frey and Kopp 2013, entire; Service 2013c, entire). We consider this area within the geographical area occupied by the jumping mouse at the time of listing. The features essential to the conservation of this subspecies may require special management considerations or protection to reduce PO 00000 Frm 00038 Fmt 4701 Sfmt 4700 the following threats: Severe wildland fires, recreation, grazing, water use and management, floods, the reduction in the distribution and abundance of beaver ponds, and coalbed methane development. The occupied areas are centered around the five capture locations plus an additional 0.8-km (0.5mi) segment upstream and downstream of each of these areas where the physical and biological features of critical habitat are found. The remaining unoccupied areas within Unit 1 are found both upstream and downstream of the occupied areas, and are considered essential to the conservation of the jumping mouse (as described under the heading Unit Descriptions, above). Unit 2—Coyote Creek Unit 2 consists of 239 ha (591 ac) along 11.8 km (7.4 mi) of Coyote Creek on private lands and an area owned by the State of New Mexico within Mora County. The unit begins at the confluence of Little Blue Creek and Coyote Creek and extends downstream to about the terminus just south of the Village of Guadalupita. Based upon captures of the jumping mouse since 2006 (Frey 2006d, pp. 24, 70; Frey 2012, p. 6), approximately 1.7 ha (4.3 ac) within Unit 2 are considered occupied at the time of listing and contain suitable habitat. The occupied areas occur within Coyote Creek State Park and several miles north of the park along Highway 434 in New Mexico at two locations along Coyote Creek including: (1) An area that contains extensive beaver ponds, dams, and canals and is located between the only vehicle bridge within the southwestern part of Coyote Creek State Park and the southern boundary of the park; and (2) within another area that contains extensive beaver activity about 1.9 km (1.2 mi) south of the confluence of Little Blue Creek and Coyote Creek. The features essential to the conservation of this subspecies may require special management considerations or protection to reduce the following threats: Severe wildland fires, recreation, grazing, water use and management, floods, the reduction in the distribution and abundance of beaver ponds, and development. The occupied areas are centered around the two capture locations plus an additional 0.8-km (0.5-mi) segment upstream and downstream of these areas where the physical and biological features of critical habitat are found. The remaining unoccupied areas within Unit 2 are found both upstream and downstream of the occupied areas, and are considered essential to the conservation E:\FR\FM\16MRR3.SGM 16MRR3 Federal Register / Vol. 81, No. 51 / Wednesday, March 16, 2016 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES3 of the jumping mouse (as described under the heading Unit Descriptions, above). Unit 3—Jemez Mountains Unit 3 consists of 1,118 ha (2,761 ac) along 55.5 km (34.5 mi) of streams within three subunits on private lands and areas owned by the Forest Service and the State of New Mexico within Sandoval County, New Mexico. Areas designated as critical habitat for the jumping mouse in this unit incorporate the only habitat known to be occupied by the species since 2005 within the Jemez Mountains with the capability to support the breeding and reproduction of the species. Subunit 3A—San Antonio: Subunit 3A consists of 234 ha (579 ac) along 11.5 km (7.1 mi) of San Antonio Creek on private lands and areas owned by the Forest Service. This subunit begins along the northern part of San Antonio Creek where it exits the boundary of the Valles Caldera National Preserve and follows the creek through mostly Forest Service lands where it meets private land immediately downstream of the San Antonio Campground. Based upon the capture of one jumping mouse since 2005 (Frey 2005a, pp. 15, 24, 58), approximately 0.4 ha (1 ac) within Subunit 3A are considered occupied at the time of listing and contain suitable habitat. The occupied area is located along San Antonio Creek within a wet meadow near the southwestern part of San Antonio Campground (Frey 2005a, pp. 15, 24, 58). The features essential to the conservation of this subspecies may require special management considerations or protection to reduce the following threats: Severe wildland fires, recreation, grazing, floods, and the reduction in the distribution and abundance of beaver ponds. The occupied area is centered around the one capture location plus an additional 0.8-km (0.5-mi) segment upstream and downstream of this area where the physical and biological features of critical habitat are found. The remaining unoccupied areas within Subunit 3A are found both upstream and downstream of the occupied area, and are considered essential to the conservation of the jumping mouse (as described under the heading Unit Descriptions, above). Subunit 3B—Rio Cebolla: Subunit 3B consists of 429 ha (1,060 ac) along 20.7 km (12.9 mi) of the Rio Cebolla on private lands and areas owned by the Forest Service and the State of New Mexico. This subunit extends from an old beaver dam about 0.6 km (0.4 mi) north of Hay Canyon downstream about where it meets the Rio de las Vacas. VerDate Sep<11>2014 19:08 Mar 15, 2016 Jkt 238001 Based upon captures of the jumping mouse since 2005 (Frey 2005a, pp. 23– 28, 37–38; Frey 2007b, p. 11), approximately 10.7 ha (26.4 ac) within Subunit 3B are considered occupied at the time of listing and contain suitable habitat. The occupied areas occurs on State of New Mexico and Forest Service lands in New Mexico at six locations along the Rio Cebolla: (1) Near the western edge of the northwestern pond along the access road within the New Mexico Department of Game and Fish’s Seven Springs Hatchery; (2) within Fenton Lake State Park at the upper end of Fenton Lake Marsh above Highway 126 and the New Mexico Highway 126 bridge; (3) within Fenton Lake State Park Day Use Area at the mouth of a small tributary that enters the southwest side of Fenton Lake; (4) within Lake Fork Canyon inside a livestock exclosure above the bridge on Forest Road 376; (5) within a network of channels, beaver ponds, and wet meadows about 0.9 km (0.6 mi) southwest of Forest Road 376 bridge; and (6) about 2.7 km (1.7 mi) north of the confluence of the Rio Cebolla and the Rio de las Vacas (Frey 2005a, pp. 23–28, 37–38; Frey 2007b, p. 11). The features essential to the conservation of this subspecies may require special management considerations or protection to reduce the following threats: Severe wildland fires, recreation, grazing, floods, the reduction in the distribution and abundance of beaver ponds, development, and highway reconstruction. The occupied areas are centered around the six capture locations plus an additional 0.8km (0.5-mi) segment upstream and downstream of these areas where the physical and biological features of critical habitat are found. The remaining unoccupied areas within Subunit 3B are found both upstream and downstream of the occupied areas, and are considered essential to the conservation of the jumping mouse (as described under the heading Unit Descriptions, above). Subunit 3C—Rio de las Vacas: Subunit 3C consists of 454 ha (1,122 ac) along 23.3 km (14.5 mi) of the Rio de las Vacas on private lands and areas owned by the Forest Service. This subunit starts about 0.8 km (0.5 mi) north of Forest Road 94 adjacent to Burned Canyon and extends downstream to the confluence with Subunit 3B. Although much of the habitat was historically occupied with individuals detected as recently as 1989 (Morrison 1985; 1992, p. 311; Frey 2005a, p. 7), no New Mexico meadow jumping mice were captured during surveys in 2005 (Frey 2005a, p. 18). The entire subunit PO 00000 Frm 00039 Fmt 4701 Sfmt 4700 14301 is considered unoccupied at the time of listing. This subunit has perennial flowing water with saturated soils and a high potential of being restored to suitable habitat. It has the potential for natural recolonization of jumping mice populations through individuals that naturally disperse. This subunit would provide connectivity to Subunit 3B and allow for possible expansion of jumping mice from that currently occupied subunit, which is contiguous with Subunit 3C, into historically occupied habitat along the Rio de las Vacas drainage. We found this entire stream section would provide further connectivity to the adjacently occupied habitat within Subunit 3B and increase the length and size of the suitable habitat. All of the areas within Subunit 3C are considered essential to the conservation of the jumping mouse (as described under the heading Unit Descriptions, above). Unit 4—Sacramento Mountains Unit 4 consists of 777 ha (1,920 ac) along 36.2 km (22.5 mi) of streams within five subunits on private lands and areas owned by the Forest Service within Otero County, New Mexico. Areas designated as critical habitat for the jumping mouse in this unit incorporate the only habitat known to be occupied by the species since 2005 within the Sacramento Mountains with the capability to support the breeding and reproduction of the species. Subunit 4A—Silver Springs: Subunit 4A consists of 105 ha (260 ac) along 5.2 km (3.2 mi) of Silver Springs Creek on private lands and areas owned by the Forest Service. This subunit begins about 0.3 km (0.2 mi) north of the intersection of Forest Road 162 and New Mexico Highway 244 and follows Silver Springs Creek downstream to the boundary of Forest Service and Mescalero Apache lands. Based upon the capture of one jumping mouse since 2005 (Frey 2005a, p. 31), approximately 5.4 ha (13.3 ac) within Subunit 4A are considered occupied at the time of listing. The occupied area is located on Forest Service lands in New Mexico within a grazing exclosure containing welldeveloped riparian habitat about 7.4 km (4.6 mi) north of Cloudcroft along middle Silver Springs Creek, at Junction of Turkey Pen Canyon and Forest Road 405 (Frey 2005a, pp. 31, 38). The features essential to the conservation of this subspecies may require special management considerations or protection to reduce the following threats: Severe wildland fires, grazing, floods, and the reduction in the distribution and abundance of beaver E:\FR\FM\16MRR3.SGM 16MRR3 mstockstill on DSK4VPTVN1PROD with RULES3 14302 Federal Register / Vol. 81, No. 51 / Wednesday, March 16, 2016 / Rules and Regulations ponds. The occupied area is centered around one capture location plus an additional 0.8-km (0.5-mi) segment upstream and downstream of this area where the physical and biological features of critical habitat are found. The remaining unoccupied areas within Subunit 4A are found both upstream and downstream of the occupied area, and are considered essential to the conservation of the jumping mouse (as described under the heading Unit Descriptions, above). ˜ Subunit 4B—Upper Penasco: Subunit 4B consists of 136 ha (335 ac) along 6.4 ˜ km (4.0 mi) of the Rio Penasco on private lands and areas owned by the Forest Service. This subunit begins at the junction of Forest Service Road 164 and New Mexico Highway 6563 and ˜ follows the Rio Penasco drainage downstream to about 2.4 km (1.5 mi) below Bluff Spring at the boundary of private and Forest Service lands. Although much of the habitat was historically occupied with individuals detected as recently as 1988 (Morrison 1989, pp. 7–10, Frey 2005a, pp. 30–31), no New Mexico meadow jumping mice were captured during surveys in 2005 (Frey 2005a, pp. 19–20, 32–34). The entire subunit is considered unoccupied at the time of listing. This subunit contains perennial flowing water with saturated soils and has a high potential of being restored to suitable habitat. It would augment the current size and connectivity of suitable habitat to increase the distribution of the jumping mouse in the Sacramento Mountains and provide population redundancy and resiliency. All of the areas within Subunit 4B are considered essential to the conservation of the jumping mouse (as described under the heading Unit Descriptions, above). ˜ Subunit 4C—Middle Penasco: Subunit 4C consists of 264 ha (652 ac) along 11.4 ˜ km (7.1 mi) of the Rio Penasco on private lands and areas owned by the Forest Service. This subunit begins at the junction of Wills Canyon and Forest Service Road 169 and follows the Rio ˜ Penasco drainage downstream to the junction of Forest Road 212. Based upon the capture of two jumping mice in 2012, following the cessation of grazing for 2 years (Forest Service 2012a, entire; 2012c, entire; Forest Service 2012h, pp. 2–4; Service 2012d; U.S. Army Corps of Engineers 2012, entire; 2012a, entire), approximately 0.3 ha (0.75 ac) within Subunit 4C are considered occupied at the time of listing. The occupied area is located on Forest Service lands in New Mexico within a wetland at the junction ˜ of Cox Canyon and the Rio Penasco (Forest Service 2012h, pp. 2–4). The VerDate Sep<11>2014 19:08 Mar 15, 2016 Jkt 238001 features essential to the conservation of this subspecies may require special management considerations or protection to reduce the following threats: Severe wildland fires, recreation, grazing, floods, and the reduction in the distribution and abundance of beaver ponds. The occupied area is centered around one capture location plus an additional 0.8km (0.5-mi) segment upstream and downstream of this area where the physical and biological features of critical habitat are found. The remaining unoccupied areas within Subunit 4C are found both upstream and downstream of the occupied area, and are considered essential to the conservation of the jumping mouse (as described under the heading Unit Descriptions, above). Subunit 4D—Wills Canyon: Subunit 4D consists of 111 ha (275 ac) along 5.5 km (3.4 mi) of streams on private lands and areas owned by the Forest Service. This subunit begins at upper Mauldin Spring, the head of the Wills Canyon, and follows the drainage downstream along Forest Service Road 169 to the boundary of Forest Service and private lands in the vicinity of Bear Spring. Based upon the capture of jumping mice in 2012 and 2013 (Forest Service 2012a, entire; 2012h, pp. 2–5; 2013a, entire; Service 2012d, pp. 2, 8), approximately 0.8 ha (1.9 ac) within Subunit 4D are considered occupied at the time of listing. The occupied area is located on Forest Service lands in New Mexico within the grazing exclosures at Mauldin Spring in Wills Canyon (Forest Service 2012a, entire; 2012h, pp. 2–5; 2013a, entire; Service 2012d, pp. 2, 8). The features essential to the conservation of this subspecies may require special management considerations or protection to reduce the following threats: severe wildland fires, grazing, floods, and the reduction in the distribution and abundance of beaver ponds. The occupied area is centered around the capture locations plus an additional 0.8-km (0.5-mi) segment upstream and downstream of this area where the physical and biological features of critical habitat are found. The remaining unoccupied areas within Subunit 4D are found both upstream and downstream of the occupied area, and are considered essential to the conservation of the jumping mouse (as described under the heading Unit Descriptions, above). Subunit 4E—Agua Chiquita Canyon: Subunit 4E consists of 161 ha (398 ac) along 7.7 km (4.8 mi) of Agua Chiquita Creek on areas owned by the Forest Service. This subunit begins about 0.8 km (0.5 mi) upstream of the livestock exclosure around Barrel and Sand PO 00000 Frm 00040 Fmt 4701 Sfmt 4700 Springs along Agua Chiquita Creek and follows the canyon downstream along Forest Service Road 64 to Crisp, a Forest Service riparian pasture. Based upon multiple captures of jumping mice since 2005 (Frey 2005a, p. 34; Forest Service 2010, entire; Service 2012d, pp. 1–2), approximately 4.9 ha (12.0 ac) within Subunit 4E are considered occupied at the time of listing. The occupied areas are located on Forest Service lands in New Mexico within two of four fenced livestock exclosures, which includes the exclosure surrounding Sand and Barrel Springs and the most downstream section of the second in the series of four exclosures (Frey 2005a, p. 34; Forest Service 2010, entire; Service 2012d, pp. 1–2). The features essential to the conservation of this subspecies may require special management considerations or protection to reduce the following threats: Severe wildland fires, recreation, grazing, floods, and the reduction in the distribution and abundance of beaver ponds. The occupied areas are centered around the two capture locations plus an additional 0.8-km (0.5-mi) segment upstream and downstream of these areas where the physical and biological features of critical habitat are found. The remaining unoccupied areas within Subunit 4E are found both upstream and downstream of the occupied areas, and are considered essential to the conservation of the jumping mouse (as described under the heading Unit Descriptions, above). Unit 5—White Mountains Unit 5 consists of 2,448 ha (6,046 ac) along 116.6 km (72.4 mi) of streams within eight subunits on private lands and areas owned by the Forest Service and the State of Arizona within Greenlee and Apache Counties, Arizona. Areas designated as critical habitat for the jumping mouse in this unit incorporate the only habitat known to be occupied by the species since 2005 within the White Mountains with the capability to support the breeding and reproduction of the species. Subunit 5A—Little Colorado: Subunit 5A consists of 478 ha (1,181 ac) along 22.6 km (14.0 mi) of the Little Colorado River on private lands and areas owned by the Forest Service. This subunit encompasses the East and West Forks of the Little Colorado River. The East Fork Segment begins 0.8 km (0.5 mi) upstream of the Phelps Research Natural Area and follows the drainage downstream about 3.2 km (2.0 mi) to the confluence of Lee Valley Creek and then runs upstream about 1.6 km (1.0 mi) to the dam of Lee Valley Reservoir. The E:\FR\FM\16MRR3.SGM 16MRR3 mstockstill on DSK4VPTVN1PROD with RULES3 Federal Register / Vol. 81, No. 51 / Wednesday, March 16, 2016 / Rules and Regulations subunit continues from the confluence of Lee Valley Creek and the East Fork, downstream to the confluence of the West Fork of the Little Colorado River, continuing to about 8.9 km (5.5 mi) upstream along the drainage to about 0.8 km (0.5 mi) past Sheep’s Crossing. Based upon multiple captures of jumping mice since 2008 (Frey 2011, pp. 29, 87; AGFD 2012a, p. 3), approximately 0.6 ha (1.5 ac) within Subunit 5A are considered occupied at the time of listing. The occupied area is located on Forest Service lands in Arizona within a livestock exclosure along a short 0.4-km (0.25-mi) stream reach that is 1.8 km (1.1 mi) south of Greer, below Montlure Camp (Frey 2011, pp. 29, 87; AGFD 2012a, p. 3). In 2011, the Wallow Fire burned much of this area, and surveys during 2012 continued to detect New Mexico meadow jumping mice (AGFD 2012a, p. 3). The features essential to the conservation of this subspecies may require special management considerations or protection to reduce the following threats: Severe wildland fires, recreation, grazing, floods, the reduction in the distribution and abundance of beaver ponds, and development. The occupied areas are centered around the capture locations plus an additional 0.8-km (0.5-mi) segment upstream and downstream of this area where the physical and biological features of critical habitat are found. The remaining unoccupied areas within Subunit 5A are found both upstream and downstream of the occupied area, and are considered essential to the conservation of the jumping mouse (as described under the heading Unit Descriptions, above). Subunit 5B—Nutrioso: Subunit 5B consists of 413 ha (1,021 ac) along 20.4 km (12.7 mi) of Nutrioso Creek on private lands and areas owned by the Forest Service. This subunit begins at the confluence of Paddy Creek about 4.8 km (3 mi) south of the town of Nutrioso and follows the drainage downstream about 16 km (10 mi) to Nelson Reservoir. Based upon multiple captures of jumping mice since 2008 (Frey 2011, pp. 29, 35, 89, 95; AGFD 2012a, p. 3), approximately 1.9 ha (4.9 ac) within Subunit 5B are considered occupied at the time of listing. The occupied area is located on Forest Service lands in Arizona along a short 1.3-km (0.8-mi) stream reach 3.9 km (2.4 mi) south of the town of Nutrioso. In 2011, the Wallow Fire burned much of this area, and surveys during 2012 continued to detect New Mexico meadow jumping mice (AGFD 2012a, p. 3). The features essential to the conservation of this VerDate Sep<11>2014 19:08 Mar 15, 2016 Jkt 238001 subspecies may require special management considerations or protection to reduce the following threats: Severe wildland fires, grazing, floods, the reduction in the distribution and abundance of beaver ponds, highway reconstruction, and development. The occupied area is centered around the capture locations plus an additional 0.8-km (0.5-mi) segment upstream and downstream of this area where the physical and biological features of critical habitat are found. The remaining unoccupied areas within Subunit 5B are found both upstream and downstream of the occupied area, and are considered essential to the conservation of the jumping mouse (as described under the heading Unit Descriptions, above). Subunit 5C—San Francisco: Subunit 5C consists of 252 ha (622 ac) along 11.8 km (7.3 mi) of the San Francisco River and its tributary Turkey (=Talwiwi) Creek on private lands and areas owned by the Forest Service. This subunit begins about 0.6 km (0.4 mi) west of Forest Road 8854 along the San Francisco River and follows the drainage downstream about 10.5 km (6.5 mi), including a 1.3-km (0.8-mi) segment of Turkey (=Talwiwi) Creek that is south of Arizona Highway 180, then continues downstream to the headwaters of Luna Lake. Based upon multiple captures of jumping mice since 2008 (Frey 2011, pp. 29, 97, 100), approximately 0.9 ha (2.3 ac) within Subunit 5C are considered occupied at the time of listing. There are two occupied areas within this unit located on Forest Service lands in Arizona including: (1) A small livestock exclosure along a 0.2km (0.1-mi) stream reach of upper Turkey Creek at the junction of Highway 80 and Forest Road 289; and (2) two fenced livestock exclosures along a 0.4km (0.2-mi) stream reach at the junction of the San Francisco River and Forest Road 8854 (Frey 2011, p. 97). In 2011, the Wallow Fire burned much of this area, and surveys during 2012 did not detect New Mexico meadow jumping mice (AGFD 2012, entire, 2012a, p. 2). However, until multiple years of surveys determine that the population has been extirpated, we consider this area within the geographical area occupied by the jumping mouse at the time of listing. The features essential to the conservation of this subspecies may require special management considerations or protection to reduce the following threats: Severe wildland fires, grazing, floods, the reduction in the distribution and abundance of beaver ponds, highway reconstruction, and development. The occupied areas PO 00000 Frm 00041 Fmt 4701 Sfmt 4700 14303 are centered around the two capture locations plus an additional 0.8-km (0.5mi) segment upstream and downstream of these areas where the physical and biological features of critical habitat are found. The remaining unoccupied areas within Subunit 5C are found both upstream and downstream of the occupied areas, and are considered essential to the conservation of the jumping mouse (as described under the heading Unit Descriptions, above). Subunit 5D—East Fork Black: Subunit 5D consists of 421 ha (1,040 ac) along 20.3 km (12.6 mi) of the East Fork of the Black River areas owned by the Forest Service. This subunit begins 0.8 km (0.5 mi) north of the intersection of Three Forks Road and Route 285 and follows the drainage downstream about 20.3 km (12.6 mi), where it abuts Subunit 5E. Based upon multiple captures of jumping mice since 2008 (Frey 2011, p. 97; AGFD 2012, entire, 2012a, p. 2), approximately 6.9 ha (16.9 ac) within Subunit 5D are considered occupied at the time of listing. The occupied area is located on Forest Service lands in Arizona along the headwaters of the East Fork Black River near the intersection of Three Forks Road and Route 285 (Frey 2011, p. 29, 35, 40, 104; AGFD 2012, entire, 2012a, p. 2). In 2011, the Wallow Fire burned much of this area, and surveys during 2012 continued to detect New Mexico meadow jumping mice (AGFD 2012a, p. 2). The features essential to the conservation of this subspecies may require special management considerations or protection to reduce the following threats: Severe wildland fires, grazing, floods, the reduction in the distribution and abundance of beaver ponds, and highway reconstruction. The occupied area is centered around the capture location plus an additional 0.8-km (0.5-mi) segment upstream and downstream of this area where the physical and biological features of critical habitat are found. The remaining unoccupied areas within Subunit 5D are found both upstream and downstream of the occupied area, and are considered essential to the conservation of the jumping mouse (as described under the heading Unit Descriptions, above). Subunit 5E—West Fork Black: Subunit 5E consists of 481 ha (1,188 ac) along 23.0 km (14.3 mi) of the West Fork of the Black River on private lands and areas owned by the Forest Service and the State of Arizona. The subunit begins at the confluence of the West Fork of the Black River and Burro Creek and follows the drainage downstream where it abuts Subunit 5D. E:\FR\FM\16MRR3.SGM 16MRR3 mstockstill on DSK4VPTVN1PROD with RULES3 14304 Federal Register / Vol. 81, No. 51 / Wednesday, March 16, 2016 / Rules and Regulations Based upon multiple captures of jumping mice since 2007 (Underwood, 2007, entire; Frey 2011, pp. 29, 40, 104; AGFD 2012, p. 2), approximately 13.7 ha (33.9 ac) within Subunit 5E are considered occupied at the time of listing. The occupied areas occur on Forest Service lands in Arizona at four locations: (1) Along the upper West Fork Black River just north of Forest Road 116; (2) immediately adjacent to the campground along the middle Fork of the Black River; (3) at the junction of Forest Road 68 and the middle Fork of the Black River; and (4) near the junction of the lower Fork of the Black River and Home Creek (Underwood 2007, entire; Frey 2011, pp. 29, 40, 104; AGFD 2012, p. 2012a, pp. 2–3). In 2011, the Wallow Fire burned much of this area, and surveys during 2012 continued to detect New Mexico meadow jumping mice at the lower and middle sections of the West Fork Black River (AGFD 2012a, pp. 2–3). Although New Mexico meadow jumping mice were not detected at the upper West Fork Black River location, until multiple years of surveys determine that the population has been extirpated, we consider this area within the geographical area occupied by the jumping mouse at the time of listing. The features essential to the conservation of this subspecies may require special management considerations or protection to reduce the following threats: Severe wildland fires, grazing, floods, the reduction in the distribution and abundance of beaver ponds, and highway reconstruction. The occupied areas are centered around the four capture locations plus an additional 0.8-km (0.5mi) segment upstream and downstream of these areas where the physical and biological features of critical habitat are found. The remaining unoccupied areas within Subunit 5E are found both upstream and downstream of the occupied areas, and are considered essential to the conservation of the jumping mouse (as described under the heading Unit Descriptions, above). Subunit 5F—Boggy and Centerfire: Subunit 5F consists of 197 ha (485 ac) along 8.9 km (5.5 mi) of Boggy Creek and Centerfire Creek on areas owned by the Forest Service. The east segment of the subunit begins 0.8 km (0.5 mi) north of the intersection of Route 25 and Boggy Creek and follows the drainage downstream to the confluence with Centerfire Creek. The west segment begins 0.8 km (0.5 mi) north of the intersection of Route 25 and Centerfire Creek, and follows the drainage downstream to the confluence with VerDate Sep<11>2014 19:08 Mar 15, 2016 Jkt 238001 Boggy Creek, then continues downstream to the confluence with the Black River. Based upon multiple captures of jumping mice since 2008 (Frey 2011, pp. 29, 104–105; AGFD 2012, pp. 3–4; 2012a, p. 3), approximately 3.0 ha (7.5 ac) within Subunit 5F are considered occupied at the time of listing. The occupied areas are located on Forest Service lands in Arizona within fenced livestock exclosures at the junction of Forest Road 25 and Boggy Creek; and within a fenced livestock exclosure at the junction of Forest Road 25 and Centerfire Creek (Frey 2011, pp. 29, 104–105; AGFD 2012, pp. 3–4; 2012a, p. 3). In 2011, the Wallow Fire burned much of this area, and surveys during 2012 continued to detect New Mexico meadow jumping mice (AGFD 2012a, p. 3). The features essential to the conservation of this subspecies may require special management considerations or protection to reduce the following threats: Severe wildland fires, grazing, floods, and the reduction in the distribution and abundance of beaver ponds. The occupied areas are centered around the capture locations plus an additional 0.8-km (0.5-mi) segment upstream and downstream of these areas where the physical and biological features of critical habitat are found. The remaining unoccupied areas within Subunit 5F are found both upstream and downstream of the occupied areas, and are considered essential to the conservation of the jumping mouse (as described under the heading Unit Descriptions, above). Subunit 5G—Corduroy: Subunit 5G consists of 104 ha (256 ac) along 4.8 km (3.0 mi) of Corduroy Creek on lands owned by the Forest Service. The subunit begins at the headwaters about 0.8 km (0.5 mi) south of the intersection of County Road 24 and County Road 8184A and follows the drainage downstream to the confluence with Fish Creek. Based upon multiple captures of jumping mice since 2009 (Frey 2011, pp. 104–105; AGFD 2012, entire, 2012a, p. 4), approximately 0.4 ha (1.1 ac) within Subunit 5G are considered occupied at the time of listing. The occupied area is located on Forest Service lands in Arizona within fenced livestock exclosures at the junction of Forest Road 8184A and Corduroy Creek (Frey 2011, pp. 104–105; AGFD 2012, entire, 2012a, p. 4). In 2011, the Wallow Fire burned much of this area, and surveys during 2012 continued to detect New Mexico meadow jumping mice (AGFD 2012a, p. 4). The features essential to the conservation of this subspecies may require special PO 00000 Frm 00042 Fmt 4701 Sfmt 4700 management considerations or protection to reduce the following threats: Severe wildland fires, grazing, floods, and the reduction in the distribution and abundance of beaver ponds. The occupied area is centered around the capture location plus an additional 0.8-km (0.5-mi) segment upstream and downstream of this area where the physical and biological features of critical habitat are found. The remaining unoccupied areas within Subunit 5G are found both upstream and downstream of the occupied area, and are considered essential to the conservation of the jumping mouse (as described under the heading Unit Descriptions, above). Subunit 5H—Campbell Blue: Subunit 5H consists of 102 ha (253 ac) along 4.8 km (3.0 mi) of Campbell Blue Creek on private lands and areas owned by the Forest Service. The subunit begins at the confluence with Cat Creek along Forest Road 281 and extends downstream to the confluence with Turkey Creek. Based upon multiple captures of jumping mice since 2008 (Frey 2011, pp. 29, 101), approximately 0.008 ha (0.02 ac) within Subunit 5H are considered occupied at the time of listing. The occupied area is located on Forest Service lands in Arizona within a livestock exclosure 13 km (8 mi) north of the community of Blue (Frey 2011, pp. 29, 101). In 2011, the Wallow Fire burned much of this area, and surveys during 2012 did not detect New Mexico meadow jumping mice (AGFD 2012, entire, 2012a, p. 2). However, until multiple years of surveys determine that the population has been extirpated, we consider this area within the geographical area occupied by the jumping mouse at the time of listing. The features essential to the conservation of this subspecies may require special management considerations or protection to reduce the following threats: Severe wildland fires, grazing, floods, and the reduction in the distribution and abundance of beaver ponds. The occupied area is centered around the capture location plus an additional 0.8-km (0.5-mi) segment upstream and downstream of this area where the physical and biological features of critical habitat are found. The remaining unoccupied areas within Subunit 5H are found both upstream and downstream of the occupied area, and are considered essential to the conservation of the jumping mouse (as described under the heading Unit Descriptions, above). E:\FR\FM\16MRR3.SGM 16MRR3 Federal Register / Vol. 81, No. 51 / Wednesday, March 16, 2016 / Rules and Regulations Unit 6—Bosque del Apache National Wildlife Refuge (NWR) Unit 6 consists of 403 ha (995 ac) along 21.1 km (13.1 mi) of ditches and canals on the Service’s Bosque del Apache NWR, Socorro County, New Mexico. This unit includes parts of a complex ditch system with associated irrigation of NWR management units, making habitat within this area unique. This unit begins in the northern part of the NWR and generally follows the Riverside Canal to the southern end. The NWR is the only locality within the middle Rio Grande considered still in existence (Frey and Wright 2012; Service 2014a, entire). Based upon multiple captures of the jumping mouse since 2009 (Frey and Wright 2012, entire; Service 2014a, entire), approximately 4.1 ha (10.1 ac) within Unit 6 are considered occupied at the time of listing. The occupied area is located on NWR lands in New Mexico along a 2.7-km (1.7-mi) segment of the Riverside Canal (Frey and Wright 2012, entire; Service 2014a, entire). The features essential to the conservation of this subspecies may require special management considerations or protection to reduce the following threats: Water use and management; severe wildland fires; and thinning, mowing, or removing tamarisk (also known as saltcedar, Tamarix ramosissima), decadent stands of willow that are greater than 3 years old or 1.5 m (4.9 ft) tall. The occupied area is centered around the capture locations plus an additional 0.8-km (0.5-mi) segment upstream and downstream of this area where the physical and biological features of critical habitat are found. The remaining unoccupied areas within Unit 6 are found both upstream and downstream of the occupied area, and are considered essential to the conservation of the jumping mouse (as described under the heading Unit Descriptions, above). mstockstill on DSK4VPTVN1PROD with RULES3 Unit 7—Florida Unit 7 consists of 253 ha (626 ac) along 13.6 km (8.4 mi) of the Florida River on private lands and an area owned by the Bureau of Land Management, La Plata County, Colorado. The unit begins at the irrigation diversion structure (Florida Ditch main headgate) of the Florida Water Conservancy District about 0.8 km (0.5 mi) northeast of the intersection of La Plata County Road 234 and 237 and follows the drainage downstream to about 0.16 km (0.1 mi) north of Ranchos Florida Road. Based upon the capture of two jumping mice since 2007 (Museum of VerDate Sep<11>2014 19:08 Mar 15, 2016 Jkt 238001 Southwestern Biology 2007; 2007a; Frey 2008c, pp. 42–45, 56; 2011a, pp. 19, 33), approximately 0.15 ha (0.37 ac) within Unit 7 are considered occupied at the time of listing. The occupied area is located on private lands in Colorado 0.9 km (0.6 mi) north of Highway 160 along the Florida River (Museum of Southwestern Biology 2007; 2007a; Frey 2008c, pp. 42–45, 56; 2011a, pp. 19, 33). The features essential to the conservation of this subspecies may require special management considerations or protection to reduce the following threats: Floods, water use and management, development, and coalbed methane. The occupied area is centered around the capture location plus an additional 0.8-km (0.5-mi) segment upstream and downstream of this area where the physical and biological features of critical habitat are found. The remaining unoccupied areas within Unit 7 are found both upstream and downstream of the occupied area, and are considered essential to the conservation of the jumping mouse (as described under the heading Unit Descriptions, above). Unit 8—Sambrito Creek Unit 8 consists of 75 ha (185 ac) along 4.6 km (2.9 mi) of Sambrito Creek on private lands and areas owned by the State of Colorado within Navajo State Park, near Arboles, Archuleta County, Colorado. There are two segments within this unit. One segment begins at Archuleta County Road 977, following Sambrito Creek downstream to the headwaters of Navajo Reservoir. The second segment starts about 0.3 km (0.2 mi) west of the intersection of Colorado Road 977 and 988 and follows the drainage about 3.9 km (2.1 mi) through the Sambrito Wetlands Area downstream about to the headwaters of Navajo Reservoir. Based upon multiple captures of jumping mice since 2012 (Colorado Parks and Wildlife 2012, entire, 2013, entire; Ecosphere 2014, entire), approximately 0.9 ha (2.3 ac) within Unit 8 are considered occupied at the time of listing. The occupied area is located on State of Colorado lands immediately south of Archuleta County Road 977 along the unnamed drainage through the Sambrito Wetlands Areas about 1.8 km (1.1 mi) due west of Sambrito Creek (Colorado Parks and Wildlife 2012, entire). The features essential to the conservation of this subspecies may require special management considerations or protection to reduce the following threats: Floods, grazing, water use and management, the reduction in the distribution and abundance of beaver PO 00000 Frm 00043 Fmt 4701 Sfmt 4700 14305 ponds, development, recreation, and coalbed methane. The occupied area is centered around the capture location that is about 0.5 km (0.3 mi) south of Archuleta County Road 977 plus an additional 0.8-km (0.5-mi) segment upstream and downstream of this area where the physical and biological features of critical habitat are found. The remaining unoccupied areas within Unit 8 are found both upstream and downstream of the occupied area, and are considered essential to the conservation of the jumping mouse (as described under the heading Unit Descriptions, above). 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 that 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 E:\FR\FM\16MRR3.SGM 16MRR3 mstockstill on DSK4VPTVN1PROD with RULES3 14306 Federal Register / Vol. 81, No. 51 / Wednesday, March 16, 2016 / Rules and Regulations 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, or 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 VerDate Sep<11>2014 19:08 Mar 15, 2016 Jkt 238001 authorized by law). Consequently, Federal agencies sometimes may need to request reinitiation of consultation with us on actions for which formal consultation has been completed, if those actions with discretionary involvement or control may affect subsequently listed species or designated critical habitat. Application of the ‘‘Adverse Modification’’ Standard The key factor related to the adverse modification determination is whether, with implementation of the proposed Federal action, the affected critical habitat would continue to serve its intended conservation role for the species. Activities that may destroy or adversely modify critical habitat are those that alter the physical or biological features to an extent that they appreciably reduce the conservation value of critical habitat for the jumping mouse. As discussed above, the role of critical habitat is to support life-history needs of the subspecies and provide for the conservation of the subspecies. Section 4(b)(8) of the Act requires us to briefly evaluate and describe, in any proposed or final regulation that designates critical habitat, activities involving a Federal action that may destroy or adversely modify such habitat, or that may be affected by such designation. Activities that may affect critical habitat, when carried out, funded, or authorized by a Federal agency, should result in consultation for the jumping mouse. These activities include, but are not limited to: (1) Any activity that destroys, modifies, alters, or removes the herbaceous riparian vegetation that comprises the subspecies’ habitat, as described in this final rule or within the SSA Report (Service 2014), especially if these activities occur during the jumping mouse’s active season. Such activities could include, but are not limited to: Domestic livestock grazing; land clearing or mowing; activities associated with construction for roads, bridges, pipelines, or bank stabilization; residential or commercial development; channel alteration; timber harvest; prescribed fires; off-road vehicle activity; recreational use; the removal of beaver (excluding irrigation ditches and canals); and other alterations of watersheds and floodplains. These activities may affect the physical or biological features of critical habitat for the jumping mouse, by removing sources of food, shelter, nesting or hibernation sites, or by otherwise impacting habitat essential for completion of its life history. PO 00000 Frm 00044 Fmt 4701 Sfmt 4700 (2) Any activity that results in changes in the hydrology of the critical habitat unit, including modification to any stream or water body that results in the removal or destruction of herbaceous riparian vegetation in any stream or water body. Such activities that could cause these effects include, but are not limited to, water diversions, groundwater pumping, watershed degradation, construction or destruction of dams or impoundments, developments or ‘improvements’ at a spring, channelization, dredging, road and bridge construction, destruction of riparian or wetland vegetation, and other activities resulting in the draining or inundation of a unit. (3) Any activity (e.g., instream dredging, impoundment, water diversion or withdrawal, channelization, discharge of fill material) that detrimentally alters natural processes in a unit, including changes to inputs of water, sediment, and nutrients, or any activity that significantly and detrimentally alters water quantity in the unit. (4) Any activity that could lead to the introduction, expansion, or increased density of an exotic plant or animal species that is detrimental to the jumping mouse and to its habitat. Exemptions Application of Section 4(a)(3) of the Act Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) provides that: ‘‘The Secretary shall not designate as critical habitat any lands or other geographic areas owned or controlled by the Department of Defense, or designated for its use, that are subject to an integrated natural resources management plan [INRMP] prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary determines in writing that such plan provides a benefit to the species for which critical habitat is proposed for designation.’’ There are no Department of Defense lands within the critical habitat designation for the jumping mouse; therefore, we are not exempting any areas under section 4(a)(3)(B)(i) of the Act. Consideration of Impacts Under 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 E:\FR\FM\16MRR3.SGM 16MRR3 Federal Register / Vol. 81, No. 51 / Wednesday, March 16, 2016 / Rules and Regulations critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless 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. When identifying the benefits of exclusion, we consider, among other things, whether exclusion of a specific area is likely to result in conservation; 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 jumping mouse, the benefits of critical habitat include promotion of public awareness of the presence of the jumping mouse and the importance of habitat protection, and in cases where a Federal nexus exists, potentially greater habitat protection for the jumping mouse due to the protection from adverse modification or destruction of critical habitat. 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 14307 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 the following areas from critical habitat designation for the jumping mouse: TABLE 3—AREAS EXCLUDED FROM CRITICAL HABITAT DESIGNATION BY CRITICAL HABITAT UNIT Proposed subunit Specific area Areas meeting the definition of critical habitat, in hectares (acres) 6A .................. 6B .................. Isleta Pueblo ............................................ Ohkay Owingeh ....................................... 43 ha (105 ac) ......................................... 51 ha (125 ac) ......................................... mstockstill on DSK4VPTVN1PROD with RULES3 Consideration of 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 an incremental effects memorandum and screening analysis, which together with our narrative and interpretation of effects, we consider our draft economic analysis of the proposed critical habitat designation and related factors (IEc 2014a, entire). The analysis, dated April 8, 2014, was made available for public review from April 8, 2014, through May 8, 2014 (79 FR 19307). The draft economic analysis addressed potential economic impacts of critical habitat designation for jumping mouse. Following the close of the comment period, we reviewed and evaluated all information submitted during the comment period that may pertain to our consideration of the probable incremental economic impacts of this critical habitat designation. Additional information relevant to the probable incremental economic impacts of critical habitat designation for the VerDate Sep<11>2014 19:08 Mar 15, 2016 Jkt 238001 jumping mouse is summarized below and available in the screening analysis for the jumping mouse (IEc 2014, entire), available at http:// www.regulations.gov. The economic screening memorandum is our economic analysis of the proposed critical habitat designation (IEc 2014, entire). The purpose of the economic analysis is to provide us with the information on the potential for the proposed critical habitat rule to result in costs exceeding $100 million in a single year. The draft economic analysis addressed potential economic impacts of critical habitat designation for the jumping mouse. To that end, the analysis estimates impacts to activities, including grazing, water use, and recreation, that may experience the greatest impacts in compliance with section 4(b)(2) of the Act. The draft screening memo is provided to the public for review and comment. Following the close of the comment period, we reviewed and evaluated all information submitted during the comment period that may pertain to our consideration of the probable economic impacts of this critical habitat PO 00000 Frm 00045 Fmt 4701 Sfmt 4700 Areas excluded from critical habitat, in hectares (acres) 43 ha (105 ac). 51 ha (125 ac). designation. We conclude that critical habitat designation for the jumping mouse is unlikely to generate costs exceeding $100 million in a single year. Exclusions Based on Economic Impacts Our economic analysis did not identify any disproportionate costs that are likely to result from the designation. Consequently, the Secretary is not exercising her discretion to exclude any areas from this designation of critical habitat for the jumping mouse based on economic impacts. A copy of the IEM and screening analysis with supporting documents may be obtained by contacting the New Mexico Ecological Services Field Office (see ADDRESSES) or by downloading from the Internet at http:// www.regulations.gov. Critical habitat designation for the jumping mouse is unlikely to generate costs exceeding $100 million in a single year. In occupied areas, the economic impacts of implementing the rule through section 7 of the Act will most likely be limited to additional administrative effort to consider adverse E:\FR\FM\16MRR3.SGM 16MRR3 14308 Federal Register / Vol. 81, No. 51 / Wednesday, March 16, 2016 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES3 modification. This finding is based on the following factors: • Any activities with a Federal nexus occurring within occupied habitat will be subject to section 7 consultation requirements regardless of critical habitat designation, due to the presence of the listed species; and • In most cases, project modifications requested to avoid adverse modification are likely to be the same as those needed to avoid jeopardy in occupied habitat. This analysis forecasts the total number and administrative cost of future consultations likely to occur for grazing, transportation, recreation, water management, and species and habitat management undertaken by or permitted by Federal agencies within the study area. In addition, the analysis forecasts costs associated with conservation efforts that may be recommended in consultation for those activities occurring in unoccupied areas. The total incremental section 7 costs associated with the proposed designation are estimated to be $20,000,000 in 2014, for both administrative and conservation effort costs; therefore, the total costs of the proposed rule are unlikely to exceed $100 million in a given year. Various economic benefits may result from the incremental conservation efforts identified in this analysis, including: (1) Those associated with the primary goal of species conservation (i.e., direct benefits), and (2) those additional beneficial services that derive from conservation efforts but are not the purpose of the Act (i.e., ancillary benefits). Due to existing data limitations, we are unable to assess the likely magnitude of these benefits. 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 determined that no lands within the designation of critical habitat for the jumping mouse are owned or managed by the Department of Defense or Department of Homeland Security, and, therefore, we anticipate no impact on national security or homeland security. Consequently, the Secretary is not exerting 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 also consider any other relevant impacts VerDate Sep<11>2014 19:08 Mar 15, 2016 Jkt 238001 resulting from the designation of critical habitat. We consider a number of factors including whether the landowners have developed any habitat conservation plans 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. Tribal Lands—Exclusions Under Section 4(b)(2) of the Act 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. Land and Resource Management Plans, Conservation Plans, or Agreements Based on Conservation Partnerships We indicated in the proposed rule that our final decision regarding the exclusions of tribal lands under section 4(b)(2) of the Act would consider tribal management and the recognition of their capability to appropriately manage their own resources, and the government-togovernment relationship of the United States with tribal entities (79 FR 37328; June 20, 2013). We also acknowledged our responsibilities to work directly with tribes in developing programs for healthy ecosystems, that tribal lands are not subject to the same controls as Federal public lands, our need to remain sensitive to Indian culture, and to make information available to tribes (79 FR 37328; June 20, 2013). We identified the tribal lands of Isleta Pueblo and Ohkay Owingeh included within the proposal as areas we were considering for exclusion (79 FR 37328; June 20, 2013). PO 00000 Frm 00046 Fmt 4701 Sfmt 4700 Isleta Pueblo On Isleta Pueblo (within Subunit 6A in the proposed rule), we proposed 43 ha (105 ac) of critical habitat along 3.7 km (2.3 mi) of ditches, canals, and marshes within Bernalillo County, New Mexico. Much of the habitat was historically occupied with individuals detected as recently as 1988 (Morrison 1988, pp. 22–27; Frey 2006c, entire); however, surveys within parts of the two proposed critical habitat segments during 2014 did not detect New Mexico meadow jumping mice (Bureau of Reclamation 2014, entire). The entire area is considered unoccupied at the time of listing. As analyzed below, we have excluded Isleta Pueblo from critical habitat based on their Riverine Management Plan and our ongoing conservation partnership where the benefits of exclusion from critical habitat outweigh the benefits of including an area within critical habitat. We believe that the Isleta Riverine Management Plan fulfills our criteria described below, and these benefits outweigh the benefits from inclusion as critical habitat. Moreover, Isleta Pueblo has a demonstrated productive working relationship on a Government-toGovernment basis with us. The designation of critical habitat on Isleta Pueblo would be expected to adversely impact our working relationship. During our discussions with Isleta Pueblo and from comments we received on the proposed designation of critical habitat for the jumping mouse, they informed us that critical habitat would be viewed as an intrusion on their sovereign abilities to manage natural resources in accordance with their own policies, customs, and laws. The perceived restrictions of a critical habitat designation could have a more damaging effect to coordination efforts, possibly preventing actions that might maintain, improve, or restore habitat for the jumping mouse and other endangered or threatened species like the southwestern willow flycatcher (Empidonax traillii extimus) (flycatcher) and Rio Grande silvery minnow (Hybognathus amarus) (silvery minnow). As a result, we found Isleta Pueblo would prefer to work with us on a government-to-government basis. The Pueblo of Isleta has developed and maintained a Riverine Management Plan that includes the flycatcher and silvery minnow (Service 2005; 70 FR 60955, October 19, 2005; Pueblo of Isleta 2005, entire; 2014, entire). The objective of this plan is to protect, conserve, and promote the management of the flycatcher and silvery minnow and their associated habitats within the E:\FR\FM\16MRR3.SGM 16MRR3 mstockstill on DSK4VPTVN1PROD with RULES3 Federal Register / Vol. 81, No. 51 / Wednesday, March 16, 2016 / Rules and Regulations Pueblo’s boundaries. The Pueblo recently updated and Tribal Council subsequently approved, the Riverine Management Plan to specifically include management of the jumping mouse and its habitat by: (1) Evaluating jumping mouse populations within their management areas; (2) developing science-based management actions that address and mitigate potential threats to the subspecies on the Pueblo; (3) prescribing appropriate measures to sustain existing habitat; and (4) promoting a comprehensive, integrated, and adaptive resource management approach for the riverine ecosystem administered by the Pueblo (Pueblo of Isleta 2014, entire). The Pueblo will continue to protect its bosque and does not intend to develop the areas we proposed as jumping mouse critical habitat. Moreover, under the comprehensive Riverine Management Plan, the Isleta Pueblo has conducted a variety of voluntary measures, restoration projects, and management actions to conserve riparian vegetation, including not allowing cattle to graze within the bosque, protecting riparian habitat from fire, maintaining native vegetation, and preventing habitat fragmentation (Service 2005; 70 FR 60955, October 19, 2005; Pueblo of Isleta 2005, entire). We considered their current conservation plan to provide adequate management or protection because it meets the following criteria: (1) The plan is complete and provides the same or better level of protection from adverse modification or destruction than that provided through a consultation under section 7 of the Act; (2) There is a reasonable expectation that the conservation management strategies and actions will be implemented for the foreseeable future, based on past practices, written guidance, or regulations; and (3) The plan provides conservation strategies and measures consistent with currently accepted principles of conservation biology. For these reasons, we believe that our working relationship will be better maintained if Isleta Pueblo was excluded from the designation of jumping mouse critical habitat. We view this as a substantial benefit since we have developed a cooperative working relationship for the mutual benefit of endangered and threatened species, including the jumping mouse. Benefits of Inclusion—Isleta Pueblo Through application of Section 4(b)(2) of the Act, Federal agencies, in consultation with the Service, must VerDate Sep<11>2014 19:08 Mar 15, 2016 Jkt 238001 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. Proposed Subunit 6A is unoccupied by the jumping mouse (Bureau of Reclamation 2014, entire); therefore, if a Federal action or permitting occurs, there may not be a consultation under section 7 of the Act unless critical habitat is designated. Our draft economic analysis found that if we designate critical habitat on Isleta Pueblo, it is expected that consultation would occur with the Bureau of Indian Affairs (for actions such as riparian habitat restoration, fire management plans, fire suppression, and fuel reduction treatments). Federal agencies would be required to ensure their actions do not destroy or adversely modify that critical habitat. Our economic analysis found that the incremental costs in proposed Subunit 6A would be limited to the administrative costs of consultation and none related to project modifications recommended by the Service during section 7 consultation. We also do not anticipate any formal consultations from grazing or recreation if critical habitat were designated, primarily because these activities do not occur in the proposed unit. Moreover, the types of projects we might anticipate (riparian habitat restoration, fire management plans, fire suppression, and fuel reduction treatments) would all provide long-term benefits to jumping mouse habitat, suggesting that effects to the jumping mouse from Federal projects would likely result in insignificant and discountable conclusions because conservation measures would be focused on habitat improvement and management. Because of how Isleta Pueblo manages and conserves their lands, we do not anticipate that Isleta Pueblo’s actions would considerably change in the future. Therefore, the regulatory benefit of critical habitat designation on these lands is minimized. Another important benefit of including lands in a critical habitat designation is that the designation can serve to educate landowners, agencies, tribes, and the public regarding the potential conservation value of an area, and may help focus conservation efforts on areas of high conservation value for certain species. Any information about the jumping mouse that reaches a wide PO 00000 Frm 00047 Fmt 4701 Sfmt 4700 14309 audience, including parties engaged in conservation activities, is valuable. The designation of critical habitat may also strengthen or reinforce some Federal laws such as the Clean Water Act. These laws analyze the potential for projects to significantly affect the environment. Critical habitat may signal the presence of sensitive habitat that could otherwise be missed in the review process for these other environmental laws. Isleta Pueblo is familiar with the jumping mouse and its habitat needs, and has a demonstrated commitment to address management and recovery of the flycatcher, silvery minnow, and jumping mouse through their revision of the Riverine Management Plan (Pueblo of Isleta 2014, entire). Isleta Pueblo lands and the former jumping mouse population on those lands has been widely known since the 1980s (Hink and Ohmart 1984, p. 97; Morrison 1988, pp. 22–27; Frey 2006c, entire). Thus, the educational benefits that might follow critical habitat designation, such as providing information to Isleta Pueblo on areas that are important for the longterm survival and conservation of the subspecies, have already been provided. For these reasons, we believe there is little educational benefit or support for other laws and regulations attributable to critical habitat beyond those benefits already achieved from listing the jumping mouse under the Act (79 FR 33119; June 10, 2014). Benefits of Exclusion—Isleta Pueblo The benefits of excluding Isleta Pueblo from designated critical habitat include: (1) The advancement of our Federal Indian Trust obligations and our deference to tribes to develop and implement tribal conservation and natural resource management plans for their lands and resources, which includes the jumping mouse; (2) the conservation benefits to the jumping mouse and its habitat through the management plan that might not otherwise occur; and (3) the maintenance of effective collaboration and cooperation to promote the conservation of the jumping mouse and its habitat, and other species. We have an effective working relationship with Isleta Pueblo, which was established when we proposed critical habitat for the silvery minnow (67 FR 39206; June 6, 2002) and has evolved through consultations on the flycatcher (69 FR 60706; October 12, 2004) and other riparian restoration. During the comment periods, we received input from Isleta Pueblo expressing the view that designating jumping mouse critical habitat on tribal land would adversely affect the E:\FR\FM\16MRR3.SGM 16MRR3 mstockstill on DSK4VPTVN1PROD with RULES3 14310 Federal Register / Vol. 81, No. 51 / Wednesday, March 16, 2016 / Rules and Regulations Service’s working relationship with the Pueblo. They noted that the beneficial cooperative working relationship has assisted in the conservation of listed species and other natural resources. They indicated that critical habitat designation would amount to additional Federal regulation of sovereign lands, and would be viewed as an unwarranted and unwanted intrusion. Consequently, the development of future voluntary management actions for the jumping mouse and other listed species may be compromised if these lands are designated as critical habitat for the jumping mouse. Thus, a benefit of excluding these lands is future conservation efforts that would benefit listed species, including the jumping mouse. During development of the jumping mouse critical habitat proposal (and coordination for other critical habitat proposals such as flycatcher and silvery minnow) and other efforts such as development of the flycatcher recovery plan, formal consultations, and during emergency fire suppression, we have met and communicated with the Pueblo to discuss how they might be affected by the regulations associated with endangered species management, recovery, the designation of critical habitat, and measures to minimize any impacts from planned projects as well as emergency actions such as fire suppression. As such, we established relationships for the management and conservation of endangered species and their habitats. As part of our relationship, we have provided technical assistance to develop measures to conserve endangered and threatened species and their habitats; we expect that the Pueblo will request similar assistance for the jumping mouse. All of 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 communications with Isleta Pueblo, we recognized and endorsed their fundamental right to provide for tribal resource management activities, including those relating to riparian habitat where the jumping mouse existed historically. The updated Riverine Management Plan will continue to provide guidance and oversight on the management of VerDate Sep<11>2014 19:08 Mar 15, 2016 Jkt 238001 endangered species on Isleta Pueblo. We find that the Isleta Pueblo’s Riverine Management Plan is complete and the commitment to implement conservation activities described provides significant conservation benefit to the jumping mouse, which might not otherwise occur. We believe that the resolution passed by the Tribal Council of the Pueblo of Isleta concerning the Riverine Management Plan demonstrates that the management plan will be implemented. The Riverine Management Plan specifically provides periodic updates as appropriate, including species updates for the flycatcher, silvery minnow, and jumping mouse. Benefits of Exclusion Outweigh the Benefits of Inclusion—Isleta Pueblo The benefits of including Isleta Pueblo in the critical habitat designation are limited to the administrative costs of consultation, agency and educational awareness, and the implementation of other law and regulations. However, as discussed in detail above, we believe these benefits are minimized because they are provided for through other mechanisms, such as (1) The advancement of our Federal Indian Trust obligations; (2) the conservation benefits to jumping mouse, other riparian habitats, and other endangered species from implementation of conservation actions under the Riverine Management Plan; and (3) the maintenance of effective collaboration and cooperation to promote the conservation of the jumping mouse and its habitat. The benefits of excluding Isleta Pueblo from being designated as jumping mouse critical habitat are more significant and include encouraging the continued implementation of the Riverine Management Plan, which contains conservation actions for the flycatcher, silvery minnow, and jumping mouse. Overall, these conservation actions, including management of these endangered and threatened species and their habitat accomplishes greater conservation than would be available through the implementation of a designation of critical habitat on a project-by-project basis. Excluding the Pueblo from critical habitat will allow Isleta Pueblo to manage their natural resources to benefit riparian habitat for the jumping mouse, without the perception of Federal Government intrusion. This philosophy is also consistent with our published policies on Native American natural resource management. The exclusion of these areas will likely also provide additional benefits to other listed species that would not otherwise PO 00000 Frm 00048 Fmt 4701 Sfmt 4700 be available without the Service maintaining a cooperative working relationship and the Riverine Management Plan. In conclusion, we find that the benefits of excluding Isleta Pueblo from critical habitat designation outweigh the benefits of including these areas. As a result of the assurances, protections, and conservation benefit to the Rio Grande ecosystem, the flycatcher, the silvery minnow, and the New Mexico meadow jumping mouse and their habitats on Pueblo lands, we are excluding this area from jumping mouse critical habitat. Exclusion Will Not Result in Extinction of the Species—Isleta Pueblo We have determined that exclusion of Isleta Pueblo will not result in extinction of the species. First, the jumping mouse is currently extirpated from these areas (Bureau of Reclamation 2014, entire). Second, Isleta Pueblo is committed to protecting and managing their lands and species found on those lands according to the Riverine Management Plan and their tribal, cultural, and natural resource management objectives, which provide conservation benefits for the jumping mouse and its habitat as well as other listed species. Therefore, Isleta Pueblo is committed to greater conservation measures on their land than would be available through the designation of critical habitat. Accordingly, we have excluded Isleta Pueblo from the designation of critical habitat under section 4(b)(2) of the Act because the benefits of exclusion outweigh the benefits of inclusion and will not cause the extinction of the species. Ohkay Owingeh Ohkay Owingeh Pueblo is located along the Rio Grande just north of Espanola in Rio Arriba County, New Mexico, and adjoins the lands of Santa Clara Pueblo. The Ohkay Owingeh Pueblo includes the southern or downstream end of the Velarde reach of the Rio Grande, and comprises the largest contiguous area of generally intact riparian woodland, as well as the largest riparian area under the control of a single landowner within the Velarde reach. A total of about 16.6 km (10.3 mi) of the Rio Grande are located within the Pueblo and over 450 ha (1,100 acres) of riparian habitat are still extant within the Pueblo boundaries. On Ohkay Owingeh (within Subunit 6B in the proposed rule), we proposed 51 ha (125 ac) of critical habitat along 4.8 km (3.0 mi) of ditches, canals, and marshes within Rio Arriba, County, New Mexico. Much of the habitat was historically occupied with individuals detected as E:\FR\FM\16MRR3.SGM 16MRR3 Federal Register / Vol. 81, No. 51 / Wednesday, March 16, 2016 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES3 recently as 1988 (Morrison 1988, pp. 28–35; Frey 2006c, entire); however, no New Mexico meadow jumping mice were captured during surveys conducted recently (Morrison 2012, entire). The entire unit is considered unoccupied at the time of listing. As analyzed below, we have excluded Ohkay Owingeh from critical habitat based on our ongoing conservation partnership where the benefits of exclusion from critical habitat outweigh the benefits of including an area within critical habitat. We believe that Ohkay Owingeh has a demonstrated productive working relationship on a Governmentto-Government basis with us. The designation of critical habitat on Ohkay Owingeh would be expected to adversely impact our working relationship. During our discussions with Ohkay Owingeh and from comments we received on the proposed designation of critical habitat for the jumping mouse, they informed us that critical habitat would be viewed as an intrusion on their sovereign abilities to manage natural resources. The perceived restrictions of a critical habitat designation could have a more damaging effect to coordination efforts, possibly preventing actions that might maintain, improve, or restore habitat for the jumping mouse and other endangered or threatened species like the flycatcher. Therefore, we are excluding Ohkay Owingeh based on a variety of voluntary measures, restoration projects, and management actions to conserve the jumping mouse and its habitat on their lands and their demonstrated productive working relationship on a Government-toGovernment basis with us. Benefits of Inclusion—Ohkay Owingeh Through 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. Proposed Subunit 6B is unoccupied by the jumping mouse (Ohkay Owingeh 2014, entire); therefore, if a Federal action or permitting occurs, there may not be a consultation under section 7 of the Act unless critical habitat is designated. Our draft economic analysis found that if we designate critical habitat on Ohkay Owingeh, it is expected that consultation would occur VerDate Sep<11>2014 19:08 Mar 15, 2016 Jkt 238001 with the Bureau of Indian Affairs (for actions such as riparian habitat restoration, fire management plans, fire suppression, and fuel reduction treatments). Federal agencies would be required to ensure their actions do not destroy or adversely modify that critical habitat. Our section 7 consultation history for another riparian species, the flycatcher, shows that since listing in 1995, no formal section 7 consultations addressing the flycatcher have occurred as a result of implementing Federal actions on Ohkay Owingeh. We have conducted informal consultations on the flycatcher with agencies implementing actions or providing funding and provided the technical assistance on project implementation. Effects to the flycatcher from Federal projects have all resulted in insignificant and discountable impacts due to conservation measures that focused on habitat improvement and management for the flycatcher. It would likely be the same scenario for the jumping mouse, which has even more restricted habitat than the flycatcher on Ohkay Owingeh. If we designate critical habitat on Ohkay Owingeh, our previous section 7 consultation history for the flycatcher in riparian habitat indicates that there could be some, but likely few, regulatory benefits to the jumping mouse. Even with flycatchers occurring on Ohkay Owingeh, no formal flycatcher-related section 7 consultations have occurred. Because no jumping mice currently occur on Ohkay Owingeh, it is even more likely that no formal jumping mouse-related section 7 consultations would occur. Projects initiated by Federal agencies in the future would likely only be associated with actions pertaining to the implementation of grants or funding of habitat improvement projects that would benefit the jumping mouse. Because of how Ohkay Owingeh has chosen to manage and conserve their lands and the lack of a past formal section 7 consultation history for the flycatcher, we do not anticipate that Ohkay Owingeh’s actions would considerably change in the future, generating a noticeable increase in section 7 consultations that would cause impacts to the jumping mouse or its habitat. Therefore, the effect of a critical habitat designation on these lands is minimized. Our economic analysis found that the incremental costs in proposed Subunit 6B would be limited to the administrative costs of consultation and none related to project modifications recommended by the Service during section 7 consultation. We also do not PO 00000 Frm 00049 Fmt 4701 Sfmt 4700 14311 anticipate any formal consultations from grazing or recreation if critical habitat were designated, primarily because these activities do not occur in the proposed unit. Moreover, the types of projects we might anticipate (riparian habitat restoration, fire management plans, fire suppression, and fuel reduction treatments) would all provide long-term benefits to jumping mouse habitat, suggesting that effects to the jumping mouse from Federal projects would likely result in insignificant and discountable impacts because conservation measures would be focused on habitat improvement and management. Because of how Ohkay Owingeh manages and conserves their lands, we do not anticipate that Ohkay Owingeh’s actions would considerably change in the future. Therefore, the regulatory benefit of critical habitat designation on these lands is minimized. Another important benefit of including lands in a critical habitat designation is that the designation can serve to educate landowners, agencies, tribes, and the public regarding the potential conservation value of an area, and may help focus conservation efforts on areas of high conservation value for certain species. Any information about the jumping mouse that reaches a wide audience, including parties engaged in conservation activities, is valuable. The designation of critical habitat may also strengthen or reinforce some Federal laws such as the Clean Water Act. These laws analyze the potential for projects to significantly affect the environment. Critical habitat may signal the presence of sensitive habitat that could otherwise be missed in the review process for these other environmental laws. Ohkay Owingeh is familiar with the jumping mouse and its habitat needs, and has successfully worked with the Service to address jumping mouse management and recovery. Further, Ohkay Owingeh lands and the former jumping mouse population that once inhabited them has been widely known since the 1980s (Morrison 1988, pp. 28– 35; Frey 2006c, entire). Thus, the educational benefits that might follow critical habitat designation, such as providing information to Ohkay Owingeh on areas that are important for the long-term survival and conservation of the subspecies, have already been provided. For these reasons, we believe there is little educational benefit or support for other laws and regulations attributable to critical habitat beyond those benefits already achieved from listing the jumping mouse under the Act (79 FR 33119; June 10, 2014). E:\FR\FM\16MRR3.SGM 16MRR3 mstockstill on DSK4VPTVN1PROD with RULES3 14312 Federal Register / Vol. 81, No. 51 / Wednesday, March 16, 2016 / Rules and Regulations Benefits of Exclusion—Ohkay Owingeh The benefits of excluding the Pueblo of Ohkay Owingeh from designated critical habitat include: (1) The advancement of our Federal Indian Trust obligations and our deference to tribes to develop and implement tribal conservation and natural resource management plans for their lands and resources, which includes the jumping mouse; (2) the conservation benefits to the jumping mouse and its habitat that might not otherwise occur; and (3) the maintenance of effective collaboration and cooperation to promote the conservation of the jumping mouse and its habitat, and other species. We have an effective working relationship with Ohkay Owingeh, which has evolved through consultations on the flycatcher (69 FR 60706; October 12, 2004) and other riparian restoration. As part of our relationship, we have provided technical assistance to develop measures to conserve the flycatcher and its habitat on their lands, as well as provided funding for managing jumping mouse habitat and conducting surveys. 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 Ohkay Owingeh, we recognized and endorsed their fundamental right to provide for tribal resource management activities, including those relating to riparian habitat. During the comment periods, we received input from Ohkay Owingeh expressing the view that designating jumping mouse critical habitat on tribal land would adversely affect the Service’s working relationship. They noted that the positive cooperative working relationship has assisted in the conservation of listed species and other natural resources. They indicated that critical habitat designation would amount to additional Federal regulation of sovereign lands, and would be viewed as an unwarranted and unwanted intrusion. Consequently, the development of future voluntary management actions for the jumping mouse and other listed species may be compromised if these lands are designated as critical habitat for the jumping mouse. To this end, we found Ohkay Owingeh would prefer to work VerDate Sep<11>2014 19:08 Mar 15, 2016 Jkt 238001 with us on a Government-toGovernment basis. For these reasons, we believe that our working relationship would be better maintained if they were excluded from the designation of jumping mouse critical habitat. We view this as a substantial benefit since we have developed a cooperative working relationship that benefits the conservation of endangered and threatened species. We have coordinated and collaborated with Ohkay Owingeh on the management and recovery of the flycatcher, jumping mouse, and their habitats and have established a conservation partnership. Many tribes and pueblos recognize that their management of riparian habitat and conservation of these endangered species are common goals they share with the Service. Ohkay Owingeh’s management actions are evidence of their commitment toward measures to improve riparian habitat for endangered species. Some of the common management strategies are maintaining riparian conservation areas, preserving habitat, improving habitat, reducing occurrence of fire, and conducting surveys (Ohkay Owingeh 2005, entire; 2014, entire). Ohkay Owingeh’s Environmental Affairs Department implements conservation measures to improve riparian habitat conditions. Ohkay Owingeh 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 the jumping mouse and other listed species may be compromised if these lands are designated as critical habitat for the jumping mouse. As a result of the cooperative working relationship, we are excluding this area from jumping mouse critical habitat. Benefits of Exclusion Outweigh the Benefits of Inclusion—Ohkay Owingeh The benefits of including Ohkay Owingeh in the critical habitat designation 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, agency and educational awareness, and the improved implementation of other laws and regulations. However, as discussed in detail above, we believe these benefits are minimized because they are provided for through other mechanisms, such as (1) The advancement of our Federal Indian Trust obligations; (2) the conservation benefits to jumping mouse PO 00000 Frm 00050 Fmt 4701 Sfmt 4700 and other endangered species and riparian habitats from implementation of conservation actions; and (3) the maintenance of effective collaboration and cooperation to promote the conservation of the jumping mouse and its habitat. The benefits of excluding Ohkay Owingeh from being designated as jumping mouse critical habitat are more significant and include encouraging the continued implementation of tribal management and conservation measures such as monitoring, surveying, habitat management and protection, and firerisk reduction activities that are planned for the future or are currently being implemented. Overall, these conservation actions and management of riparian habitat likely accomplish greater conservation than would be available through the implementation of a designation of critical habitat on a project-by-project basis (especially when formal section 7 consultations rarely occur). These programs will allow Ohkay Owingeh to manage their natural resources to benefit riparian habitat for the jumping mouse, without the perception of Federal Government intrusion. This philosophy is also consistent with our published policies on Native American natural resource management. The exclusion of these areas will likely also provide additional benefits to other listed species that would not otherwise be available without the Service’s maintaining a cooperative working relationship. In conclusion, we find that the benefits of excluding Ohkay Owingeh from critical habitat designation outweigh the benefits of including these areas. Exclusion Will Not Result in Extinction of the Species—Ohkay Owingeh We have determined that exclusion of Ohkay Owingeh will not result in extinction of the species. First, the jumping mouse is currently extirpated from these areas. Second, Ohkay Owingeh is committed to protecting and managing their lands and species found on those lands according to their tribal, cultural, and natural resource management objectives, which provide conservation benefits for the jumping mouse and its habitat as well as other listed species. In short, Ohkay Owingeh is committed to greater conservation measures on their land than would be available through the designation of critical habitat. Accordingly, we have determined that Ohkay Owingeh should be excluded under section 4(b)(2) of the Act because the benefits of exclusion outweigh the benefits of inclusion and will not cause the extinction of the species. E:\FR\FM\16MRR3.SGM 16MRR3 Federal Register / Vol. 81, No. 51 / Wednesday, March 16, 2016 / Rules and Regulations Required Determinations mstockstill on DSK4VPTVN1PROD with RULES3 Regulatory Planning and Review (Executive Orders 12866 and 13563) Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) will review all significant rules. The Office of Information and Regulatory Affairs has determined that this rule is not significant. Executive Order 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation’s regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements. Regulatory Flexibility Act (5 U.S.C. 601 et seq.) Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.), as amended by the Small Business Regulatory Enforcement Fairness Act 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. 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 VerDate Sep<11>2014 19:08 Mar 15, 2016 Jkt 238001 concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and agricultural businesses with annual sales less than $750,000. To determine if potential economic impacts to these small entities are significant, we considered the types of activities that might trigger regulatory impacts under this designation as well as types of project modifications that may result. In general, the term ‘‘significant economic impact’’ is meant to apply to a typical small business firm’s business operations. The Service’s current understanding of the requirements under the RFA, as amended, and following recent court decisions, is that Federal agencies are only required to evaluate the potential incremental impacts of rulemaking only on those entities directly regulated by the rulemaking itself and, therefore, 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 out by the agency is not likely to 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 will 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 are directly regulated by this rulemaking, the Service certifies that the critical habitat designation will not have a significant economic impact on a substantial number of small entities. During the development of this final rule, we reviewed and evaluated all information submitted during the comment period that may pertain to our consideration of the probable incremental economic impacts of this critical habitat designation. Based on this information, we affirm our certification that this final critical habitat designation will not have a significant economic impact on a PO 00000 Frm 00051 Fmt 4701 Sfmt 4700 14313 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. The 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 is relevant to this analysis. Thus, based on information in the economic analysis, energy-related impacts associated with the jumping mouse 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: E:\FR\FM\16MRR3.SGM 16MRR3 14314 Federal Register / Vol. 81, No. 51 / Wednesday, March 16, 2016 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES3 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 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 most of the lands within the designated critical habitat do not occur within the jurisdiction of small governments. This rule will not produce a Federal mandate of $100 million or greater in any year. Therefore, it is not a ‘‘significant regulatory action’’ under the Unfunded Mandates Reform Act. The designation of critical habitat imposes no obligations on State or local governments. Consequently, we do not believe that the critical habitat designation would significantly or uniquely affect small government entities. As such, a Small Government Agency Plan is not required. Takings—Executive Order 12630 In accordance with E.O. 12630 (Government Actions and Interference with Constitutionally Protected Private Property Rights), we have analyzed the potential takings implications of designating critical habitat for the VerDate Sep<11>2014 19:08 Mar 15, 2016 Jkt 238001 jumping mouse in a takings implications assessment. As discussed above, the designation of critical habitat affects only Federal actions. Although private parties that receive Federal funding or assistance or 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. The economic analysis found that no significant economic impacts are likely to result from the designation of critical habitat for the jumping mouse. Because the Act’s critical habitat protection requirements apply only to Federal agency actions, few conflicts between critical habitat and private property rights should result from this designation. Based on information contained in the economic analysis and described within this document, economic impacts to a property owner are unlikely to be of a sufficient magnitude to support a takings action. Therefore, the takings implications assessment concludes that this designation of critical habitat for the jumping mouse does not pose significant takings implications for lands within or affected by the designation. Based on the best available information, the takings implications assessment concludes that this designation of critical habitat for the jumping mouse does not pose significant takings implications. Federalism—Executive Order 13132 In accordance with Executive Order 13132 (Federalism), this rule does not have significant Federalism effects. A federalism impact summary statement is not required. In keeping with Department of the Interior and Department of Commerce policy, we requested information from, and coordinated development of, this critical habitat designation with appropriate State resource agencies in Arizona, Colorado, and New Mexico. We received comments from State wildlife agencies of Arizona, Colorado, and New Mexico. We have addressed them in the Summary of Comments and Recommendations section of this 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 PO 00000 Frm 00052 Fmt 4701 Sfmt 4700 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 in that the areas that contain the physical or biological features essential to the conservation of the species are more clearly defined, and the elements of the features 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 local governments in long-range planning (rather than having them wait for caseby-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) of the Act will 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 Executive 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 subspecies, the rule identifies the elements of physical or biological features essential to the conservation of the jumping mouse. 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 the 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 E:\FR\FM\16MRR3.SGM 16MRR3 Federal Register / Vol. 81, No. 51 / Wednesday, March 16, 2016 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES3 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 NEPA (42 U.S.C. 4321 et seq.) 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 (1996). However, when the range of the species includes States within the Tenth Circuit, such as that of the jumping mouse, 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. We performed the NEPA analysis, and drafts of the environmental assessment were made available for public comment in the Federal Register on April 8, 2014 (79 FR 19307). 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 and finding of no significant impact at http:// www.regulations.gov at Docket No. FWS–R2–ES–2013–0014, and at the New Mexico Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT). We analyzed the potential impacts of critical habitat designation on the following resources and resource management types: Fish, wildlife, vegetation, floodplains and wetlands, water use and management, agriculture, livestock grazing, fire management, highway construction and reconstruction, development, energy resources, recreation, cultural or historic resources, socioeconomics, and environmental justice. We found that the designation of critical habitat for the jumping mouse 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 increase the administrative effort for section 7 consultations to incorporate critical habitat considerations and add VerDate Sep<11>2014 19:08 Mar 15, 2016 Jkt 238001 project modifications to reduce impacts to primary constituent elements. 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. We sent notification letters in November 2011, to both the Isleta Pueblo and Ohkay Owingeh, describing the exclusion process under section 4(b)(2) of the Act, and we have engaged in conversations with both tribes about the proposed rule to the extent possible without disclosing predecisional information. We sent out notification letters on June 20, 2013, notifying the tribes that the proposed rule had published in the Federal Register to allow for the maximum time to submit comments. On April 8, 2014, we also sent letters notifying the tribes that we had made available the draft environmental assessment and draft economic analysis in the Federal Register. PO 00000 Frm 00053 Fmt 4701 Sfmt 4700 14315 Following their invitation, we met with Isleta Pueblo on August 14, 2013, and May 6, 2014, to discuss the proposed rule, and their endangered species management plan. In addition to the letters sent to Ohkay Owingeh and telephone conversations, Ohkay Owingeh did not request Governmentto-Government consultations or meetings. In addition, we sent coordination letters to the Bureau of Indian Affairs on September 18, 2013, seeking information for our economic analysis. We considered these tribal areas for exclusion from final critical habitat designation to the extent consistent with the requirements of 4(b)(2) of the Act, and subsequently, excluded Isleta Pueblo and Ohkay Owingeh from this final designation. References Cited A complete list of references cited in this rulemaking is available on the Internet at http://www.regulations.gov, in the May 2014 version of the New Mexico Meadow Jumping Mouse Species Status Assessment Report (Service 2014), and upon request from the New Mexico Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT). Authors The primary authors of this document are the staff members of the New Mexico Ecological Services Field 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—ENDANGERED AND THREATENED WILDLIFE AND PLANTS 1. The authority citation for part 17 continues to read as follows: ■ Authority: 16. U.S.C. 1361–1407; 1531– 1544; 4201–4245, unless otherwise noted. 2. In § 17.11(h), revise the entry for ‘‘Mouse, New Mexico meadow jumping’’ under MAMMALS in the List of Endangered and Threatened Wildlife, to read as follows: ■ § 17.11 Endangered and threatened wildlife. * * * (h) * * * E:\FR\FM\16MRR3.SGM 16MRR3 * * 14316 Federal Register / Vol. 81, No. 51 / Wednesday, March 16, 2016 / Rules and Regulations Species Vertebrate population where endangered or threatened Historic range Common name Scientific name Status When listed Critical habitat Special rules MAMMALS * Mouse, New Mexico meadow jumping. * * Zapus hudsonius luteus. * U.S. (AZ, CO, NM) * * 3. In § 17.95, amend paragraph (a) by adding an entry for ‘‘New Mexico Meadow Jumping Mouse (Zapus hudsonius luteus),’’ in the same alphabetical 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. * * * * * New Mexico Meadow Jumping Mouse (Zapus hudsonius luteus) (1) Critical habitat units are depicted for Colfax, Mora, Otero, Sandoval, and Socorro Counties in New Mexico; Las Animas, Archuleta, and La Plata Counties in Colorado; and Greenlee and Apache Counties in Arizona on the maps below. (2) Within these areas, the primary constituent elements of the physical or biological features essential to the conservation of the New Mexico meadow jumping mouse consist of the following: (i) Riparian communities along rivers and streams, springs and wetlands, or canals and ditches that contain: (A) Persistent emergent herbaceous wetlands especially characterized by presence of primarily forbs and sedges (Carex spp. or Schoenoplectus pungens); or mstockstill on DSK4VPTVN1PROD with RULES3 * VerDate Sep<11>2014 20:47 Mar 15, 2016 Jkt 238001 * Entire ...................... * 838 * * * E * (B) Scrub-shrub riparian areas that are dominated by willows (Salix spp.) or alders (Alnus spp.) with an understory of primarily forbs and sedges; and (ii) Flowing water that provides saturated soils throughout the New Mexico meadow jumping mouse’s active season that supports tall (average stubble height of herbaceous vegetation of at least 61 centimeters (24 inches)) and dense herbaceous riparian vegetation composed primarily of sedges (Carex spp. or Schoenoplectus pungens) and forbs, including, but not limited to, one or more of the following associated species: Spikerush (Eleocharis macrostachya), beaked sedge (Carex rostrata), rushes (Juncus spp. and Scirpus spp.), and numerous species of grasses such as bluegrass (Poa spp.), slender wheatgrass (Elymus trachycaulus), brome (Bromus spp.), foxtail barley (Hordeum jubatum), or Japanese brome (Bromus japonicas), and forbs such as water hemlock (Circuta douglasii), field mint (Mentha arvense), asters (Aster spp.), or cutleaf coneflower (Rudbeckia laciniata); and (iii) Sufficient areas of 9 to 24 kilometers (5.6 to 15 miles) along a stream, ditch, or canal that contain suitable or restorable habitat to support movements of individual New Mexico meadow jumping mice; and (iv) Adjacent floodplain and upland areas extending approximately 100 PO 00000 Frm 00054 Fmt 4701 Sfmt 4700 * 17.95(a) NA * meters (330 feet) outward from the boundary between the active water channel and the floodplain (as defined by the bankfull stage of streams) or from the top edge of the ditch or canal. (3) Critical habitat does not include manmade structures (such as buildings, fire lookout stations, runways, roads, and other paved areas) and the land on which they are located existing within the legal boundaries on April 15, 2016. (4) Critical habitat map units. Data layers defining map units were created using the USA Contiguous Albers Equal Area Conic USGS version projection. The maps in this entry, as modified by any accompanying regulatory text, establish the boundaries of the critical habitat designation. The coordinates or plot points or both on which each map is based are available to the public at the Service’s internet site http://www.fws. gov/southwest/es/NewMexico/, at http://www.regulations.gov at Docket No. FWS–R2–ES–2013–0014, and at the New Mexico Ecological Services Field Office. You may obtain field office location information by contacting one of the Service regional offices, the addresses of which are listed at 50 CFR 2.2. (5) Note: General Locations of Critical Habitat for the New Mexico Meadow Jumping Mouse—Overview, follows: BILLING CODE 4333–15–C E:\FR\FM\16MRR3.SGM 16MRR3 Federal Register / Vol. 81, No. 51 / Wednesday, March 16, 2016 / Rules and Regulations 14317 General Locations of Critical Habitat for the New Mexico Meadow Jumping Mouse - Overview LocationofUnits . . County/State Boundaly MEW MEXICO TEXAS 0 150 I 300 mstockstill on DSK4VPTVN1PROD with RULES3 145 VerDate Sep<11>2014 19:08 Mar 15, 2016 Jkt 238001 PO 00000 Frm 00055 600 Kilometers I I 290 Fmt 4701 Sfmt 4725 580 Miles E:\FR\FM\16MRR3.SGM 16MRR3 ER16MR16.002</GPH> ARIZONA c:::J 14318 Federal Register / Vol. 81, No. 51 / Wednesday, March 16, 2016 / Rules and Regulations (6) Unit 1—Sugarite Canyon. Map follows: Locations of Critical Habitat for the New Mexico Meadow Jumping Mouse Unit 1 - Sugarite Canyon las Animas Coun4¥ Colorado • New Mexico \ ! ._ "'"\ \ ...... Roads--- RiveJS - lakes . . Clitical Habitat . . 0.5 I 2 KOOmetws I state/County Boundary I c::J 0.5 VerDate Sep<11>2014 19:08 Mar 15, 2016 Jkt 238001 PO 00000 Frm 00056 Fmt 4701 Sfmt 4725 E:\FR\FM\16MRR3.SGM 16MRR3 ER16MR16.003</GPH> mstockstill on DSK4VPTVN1PROD with RULES3 I 1 14319 Federal Register / Vol. 81, No. 51 / Wednesday, March 16, 2016 / Rules and Regulations (7) Unit 2—Coyote Creek. Map follows: Locations of Critical Habitat for the New Mexico Meadow Jumping Mouse Unit 2- Coyote Creek • Mora Count¥ " • ··I • I ••• • Cities • Roads - - - RiVers-- takesCritical Habitat . . 2 l<ioll'll!l:ers VerDate Sep<11>2014 19:08 Mar 15, 2016 Jkt 238001 PO 00000 Frm 00057 I I I 'f Fmt 4701 I state/County Boundary c:::J 2Miles Sfmt 4725 E:\FR\FM\16MRR3.SGM 16MRR3 ER16MR16.004</GPH> mstockstill on DSK4VPTVN1PROD with RULES3 I 0.5 14320 Federal Register / Vol. 81, No. 51 / Wednesday, March 16, 2016 / Rules and Regulations (8) Unit 3—Jemez Mountains. Map follows: Locations of Critical Habitat for the New Mexico Meadow Jumping Mouse Unit 3 - Jemez Mountains RiveJS - lakesCritical Habitat . . 1.25 VerDate Sep<11>2014 19:08 Mar 15, 2016 Jkt 238001 PO 00000 Frm 00058 Fmt 4701 51<00metws 2.5 Sfmt 4725 state/County Bouooary c::J 5 Miles E:\FR\FM\16MRR3.SGM 16MRR3 ER16MR16.005</GPH> mstockstill on DSK4VPTVN1PROD with RULES3 2.5 Federal Register / Vol. 81, No. 51 / Wednesday, March 16, 2016 / Rules and Regulations 14321 (9) Unit 4—Sacramento Mountains. Map follows: Locations of Critical Habitat for the New Mexico Meadow Jumping Mouse Unit 4- Sacramento Mountains Roads--- Rivers- lakes4 8Kilorneters : :':;: : : :'~~~-.-------.-----, mstockstill on DSK4VPTVN1PROD with RULES3 P~-----t----KLP+I ~='~' 2 ~--.L--.J VerDate Sep<11>2014 19:08 Mar 15, 2016 Jkt 238001 PO 00000 Frm 00059 4 Fmt 4701 Sfmt 4725 Critical Habitat . . state/County Boundary c::J 8 Miles E:\FR\FM\16MRR3.SGM 16MRR3 ER16MR16.006</GPH> 2 14322 Federal Register / Vol. 81, No. 51 / Wednesday, March 16, 2016 / Rules and Regulations (10) Unit 5—White Mountains. Map follows: Locations of Critical Habitat for the New Mexico Meadow Jumping Mouse Unit 5 -White Mountains Roads--- Rivers- lakes6 12 Kilometws Critical Habitat . . mstockstill on DSK4VPTVN1PROD with RULES3 Y---J~t~LW:+I ~::'~':::':;:::::::':;:::::::~~-.-------.-----, ~--.L--.J VerDate Sep<11>2014 19:08 Mar 15, 2016 3 Jkt 238001 PO 00000 Frm 00060 6 Fmt 4701 Sfmt 4725 state/County Boundary c::J 'f2 Miles E:\FR\FM\16MRR3.SGM 16MRR3 ER16MR16.007</GPH> 3 Federal Register / Vol. 81, No. 51 / Wednesday, March 16, 2016 / Rules and Regulations 14323 (11) Unit 6—Bosque del Apache National Wildlife Refuge (NWR). Map follows: Locations of Critical Habitat for the New Mexico Meadow Jumping Mouse Unit 6 - Bosque del Apache NWR Socorro County Roads--- RiversCritical Habitat . . : :;' 3 Kilometers ~=' ::::'=::=::;::::~--,---,..-----, 0.75 VerDate Sep<11>2014 19:08 Mar 15, 2016 Jkt 238001 PO 00000 Frm 00061 1.5 Fmt 4701 Refuge Boundary~ b:rl 3 Mites Sfmt 4725 E:\FR\FM\16MRR3.SGM 16MRR3 ER16MR16.008</GPH> mstockstill on DSK4VPTVN1PROD with RULES3 Lakes1.5 14324 Federal Register / Vol. 81, No. 51 / Wednesday, March 16, 2016 / Rules and Regulations (12) Unit 7—Florida River. Map follows: Locations of Critical Habitat for the New Mexico Meadow Jumping Mouse Unit 7 - Florida River La Plata County / Roads--- Rivers- Lakes- 0.75 VerDate Sep<11>2014 19:08 Mar 15, 2016 Jkt 238001 PO 00000 Frm 00062 Fmt 4701 3 Miles Sfmt 4725 E:\FR\FM\16MRR3.SGM 16MRR3 ER16MR16.009</GPH> mstockstill on DSK4VPTVN1PROD with RULES3 Critical Habitat . . Federal Register / Vol. 81, No. 51 / Wednesday, March 16, 2016 / Rules and Regulations 14325 (13) Unit 8—Sambrito Creek. Map follows: Locations of Critical Habitat for the New Mexico Meadow Jumping Mouse Unit 8- Sambrito Creek .. La Plata County Archuleta County I ~ .. I I L---~----- --II --- / '- San Juan ' ' . ._ County ....... ...... .,"\/ /" ...... /' ~/ ............. "' / v..,_ ....... "' Roads--Rivers- Critical Habitat - LakesstateJGounly BoWKiary ~ * * * * Dated: March 7, 2016. Karen Hyun, Acting Principal Deputy Assistant Secretary for Fish and Wildlife and Parks. * [FR Doc. 2016–05912 Filed 3–15–16; 8:45 am] BILLING CODE 4333–15–P VerDate Sep<11>2014 19:08 Mar 15, 2016 Jkt 238001 PO 00000 Frm 00063 Fmt 4701 Sfmt 9990 E:\FR\FM\16MRR3.SGM 16MRR3 ER16MR16.010</GPH> mstockstill on DSK4VPTVN1PROD with RULES3 1 Mies

Agencies

[Federal Register Volume 81, Number 51 (Wednesday, March 16, 2016)]
[Rules and Regulations]
[Pages 14263-14325]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-05912]



[[Page 14263]]

Vol. 81

Wednesday,

No. 51

March 16, 2016

Part III





Department of the Interior





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Fish and Wildlife Service





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50 CFR Part 17





 Endangered and Threatened Wildlife and Plants; Designation of Critical 
Habitat for the New Mexico Meadow Jumping Mouse; Final Rule

Federal Register / Vol. 81 , No. 51 / Wednesday, March 16, 2016 / 
Rules and Regulations

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R2-ES-2013-0014;4500030114]
RIN 1018-AZ32


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for the New Mexico Meadow Jumping Mouse

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate 
critical habitat for the New Mexico meadow jumping mouse (Zapus 
hudsonius luteus) under the Endangered Species Act of 1973, as amended 
(Act). In total, we designate an area of approximately 5,657 hectares 
(13,973 acres) along 272.4 kilometers (169.3 miles) of flowing streams, 
ditches, and canals as critical habitat in eight units within Colfax, 
Mora, Otero, Sandoval, and Socorro Counties in New Mexico; Las Animas, 
Archuleta, and La Plata Counties in Colorado; and Greenlee and Apache 
Counties in Arizona. The effect of this rule is to designate critical 
habitat for the New Mexico meadow jumping mouse under the Act.

DATES: This rule is effective on April 15, 2016.

ADDRESSES: This final rule is available on the Internet at http://www.fws.gov/southwest/es/NewMexico/index.cfm and at http://www.regulations.gov under Docket No. FWS-R2-ES-2013-0014. Comments and 
materials we received, as well as some supporting documentation used in 
preparing this final rule, are available for public inspection at 
http://www.regulations.gov. All of the comments, materials, and 
documentation that we considered in this rulemaking are available by 
appointment, during normal business hours, at the U.S. Fish and 
Wildlife Service, New Mexico Ecological Services Field Office, 2105 
Osuna NE., Albuquerque, NM 87113; telephone 505-346-2525; or facsimile 
505-346-2542.
    The coordinates or plot points or both from which the critical 
habitat maps are generated are included in the administrative record 
for this rulemaking and are available at http://www.fws.gov/southwest/es/NewMexico/, at http://www.regulations.gov under Docket No. FWS-R2-
ES-2013-0014, and at the New Mexico Ecological Services Field Office 
(see FOR FURTHER INFORMATION CONTACT). Any additional tools or 
supporting information that we may develop for this rulemaking will 
also be available at the Fish and Wildlife Service Web site and Field 
Office set out above, and may also be included at http://www.regulations.gov.

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 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:

Executive Summary

    Why we need to publish a rule. This document is a final rule to 
designate critical habitat for the endangered New Mexico meadow jumping 
mouse. Under the 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.
    The basis for our action. On June 20, 2013 (78 FR 37363), we 
proposed to list the New Mexico meadow jumping mouse (jumping mouse) 
under the Act as an endangered species; that same day, we also proposed 
to designate critical habitat for the jumping mouse (78 FR 37328). 
Subsequently, we listed the jumping mouse as an endangered species (79 
FR 33119; June 10, 2014). This is a final rule to designate critical 
habitat for the jumping mouse. 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.
    This final rule will designate critical habitat for the endangered 
New Mexico meadow jumping mouse. 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 jumping 
mouse. We are designating as critical habitat for the subspecies 
approximately 5,657 hectares (13,973 acres) along 272.4 kilometers 
(169.3 miles) of flowing streams, ditches, and canals as critical 
habitat in eight units within Colfax, Mora, Otero, Sandoval, and 
Socorro Counties in New Mexico; Las Animas, Archuleta, and La Plata 
Counties in Colorado; and Greenlee and Apache Counties in Arizona.
    We have prepared economic and environmental analyses of the 
designation of critical habitat. In order to consider economic impacts, 
we prepared an analysis of the economic impacts of the critical habitat 
designation and related factors. We also prepared an environmental 
analysis of the designation of critical habitat in order to evaluate 
whether there would be any significant environmental impacts as a 
result of the critical habitat designation. We announced the 
availability of the draft economic analysis and the draft environmental 
assessment in the Federal Register on April 8, 2014 (79 FR 19307), 
allowing the public to provide comments on our analyses. We have 
incorporated the comments and have completed the final economic 
analysis and final environmental analysis for this final designation.
    Peer review and public comment. We sought comments from four 
independent specialists to ensure that our designation is based on 
scientifically sound data and analyses. We obtained opinions from three 
individuals with scientific expertise to review our technical 
assumptions and analysis, and to determine whether or not we had used 
the best available scientific information. Two of these peer reviewers 
supported the redundancy of habitat proposed for designation, but were 
concerned about the viability of existing jumping mouse populations, 
the short length of some units proposed for designation, and potential 
for the subspecies' recovery. These peer reviewers provided additional 
information, clarifications, and suggestions to improve this final 
rule. Information we received from peer review is incorporated into 
this final designation. We also considered all comments and information 
we received from the public during our two open comment periods, which 
were open for a total of 90 days. We also held four public information 
meetings with interested stakeholders.

Previous Federal Actions

    Previous Federal actions for the jumping mouse are described in the 
Previous Federal Actions section of the final listing rule published on 
June 10, 2014 (79 FR 33119). We published a notice of availability of 
the draft economic analysis and the draft environmental assessment in 
the Federal Register on April 8, 2014 (79 FR 19307), allowing the 
public to provide

[[Page 14265]]

comments on our analyses. Details regarding the comment periods on the 
proposed rulemaking are provided below.
    It is our intent to discuss below only those topics directly 
relevant to the designation of critical habitat for the jumping mouse. 
For a thorough assessment of the subspecies' biology and natural 
history, including limiting factors and subspecies resource needs, 
please refer to the Final New Mexico Meadow Jumping Mouse Species 
Status Assessment Report (SSA Report; Service 2014, entire), available 
online at http://www.regulations.gov under Docket No. FWS-R2-ES-2013-
0023 and the final listing rule published on June 10, 2014 (79 FR 
33119).

Summary of Comments and Recommendations

    We requested written comments from the public on the proposed 
designation of critical habitat for the jumping mouse during two 
comment periods. The first comment period associated with the 
publication of the proposed rule (78 FR 37328) opened on June 20, 2013, 
and closed on August 19, 2013. A legal notice inviting general public 
comment was published in the Albuquerque Journal on June 27, 2013. We 
did not receive any requests for a public hearing within 45 days after 
the date of the proposed rule being published in the Federal Register.
    We also requested comments on the proposed critical habitat 
designation and associated draft economic analysis and draft 
environmental assessment during a comment period that opened April 8, 
2014, and closed on May 8, 2014 (79 FR 19307). We contacted appropriate 
Federal and State agencies, tribes, scientific experts and 
organizations, and other interested parties and invited them to comment 
on the proposed rule and associated draft economic analysis and draft 
environmental assessment. On August 15, 2013, we also held an 
informational meeting in Durango, Colorado, after receiving requests 
from interested parties. Similarly, we held informational meetings in 
Ca[ntilde]on, New Mexico, on April 24, 2014; Durango, Colorado on April 
28, 2014; and Alamogordo, New Mexico, on May 28, 2014.
    During the two open comment periods, we received 63 comment letters 
addressing the proposed critical habitat designation, the draft 
economic analysis, or the draft environmental assessment. Comments we 
received are grouped into general issues specifically relating to the 
proposed critical habitat designation for the jumping mouse. All 
substantive information provided during both comment periods has either 
been incorporated directly into this final designation or the SSA 
Report, or is addressed below.

Peer Review Comments

    In accordance with our peer review policy published on July 1, 1994 
(59 FR 34270), we solicited expert opinion from four knowledgeable 
individuals with scientific expertise and familiarity with the 
subspecies, the geographic region in which the subspecies occurs, and 
conservation biology principles. We received responses from three of 
the four peer reviewers on the proposed designation of critical 
habitat. We reviewed all comments we received from the peer reviewers 
for substantive issues and new information regarding critical habitat 
for the jumping mouse. These peer reviewers provided additional 
information, clarifications, and suggestions to improve this final 
rule.
    (1) Comment: The Service should consider expanding the proposed 
critical habitat to provide reaches of critical habitat that are at 
least 25 kilometers (km) (15.5 miles (mi)) in length. A minimum length 
of 9 km (6 mi) of critical habitat may not be adequate to support a 
resilient population because many threats (e.g., wildfire, drought, and 
recreation) are likely to impact entire sections of stream. The average 
length of proposed critical habitat units was 12.2 km (7.6 mi) (range 
of 3.7 to 23.3 km; 2.3 to 14.5 mi). Small reaches (i.e., <25 km (15.5 
mi)) may not provide resiliency. Notably, the failure of surveys in 
2013 to verify persistence of the jumping mouse at Bosque del Apache 
National Wildlife Refuge (NWR), one of the largest areas proposed as 
critical habitat (21.1 km (13.1 mi)), suggests that critical habitat 
units at the upper end of the length designation used by the Service 
are not large enough to prevent extinction. Consequently, it is likely 
that all units should be greater than 25 km (15.5 mi) to provide for 
resiliency. Other public commenters suggested we shorten or exclude 
areas of the proposed critical habitat units.
    Our Response: In considering the best available data regarding the 
area needed for maintaining resilient populations of adequate size with 
the ability to endure adverse events (such as floods or wildfire), we 
estimate that resilient populations of jumping mice need connected 
areas of suitable habitat in the range of at least 27.5 to 73.2 
hectares (ha) (68 to 181 acres (ac)), along 9 to 24 km (5.6 to 15 mi) 
of flowing streams, ditches, or canals. The minimum area needed is 
given as a range due to the uncertainty of an absolute minimum and 
because local conditions within drainages will vary.
    In our proposed critical habitat designation and this final 
designation, we selected upstream and downstream boundaries that would 
avoid including highly degraded areas that are not likely restorable, 
areas that were permanently dewatered or permanently developed (i.e., 
natural vegetation removed), or areas in which suitable habitat no 
longer existed and was not likely to be restored. Consequently, many 
areas upstream or downstream of designated critical habitat are 
currently unoccupied and unusable by the jumping mouse because they 
lack continuous areas of suitable habitat. Although these degraded or 
dewatered areas may include historic jumping mouse capture locations, 
they do not meet the definition of critical habitat under the Act (16 
U.S.C. 1531 et seq.) because they were neither occupied at the time of 
listing nor are they considered essential to the conservation of the 
subspecies.
    Consequently, we continue to conclude that current jumping mouse 
populations need connected areas of suitable habitat along at least 9 
to 24 km (5.6 to 15 mi) of continuous suitable habitat to support 
viable populations of jumping mice with a high likelihood of long-term 
persistence. This distribution and amount of suitable habitat would 
allow for multiple subpopulations of jumping mice to exist along 
drainages and would provide for sources of recolonization if some areas 
where extirpated due to disturbances.
    We incorporated the best scientific and commercial information 
available into this final rule, including information regarding all 
locations where the jumping mouse has been trapped since 2005, and 
other areas outside of the geographic area occupied by the subspecies. 
For example, the jumping mouse is not extirpated from the Bosque del 
Apache NWR; they were detected during surveys in 2014 (Frey 2013, 
entire; Service 2013, entire; 2013a, entire; 2013b, entire; Service 
2014a, entire). In the SSA Report, we found that conservation of the 
jumping mouse should preferentially focus on restoration of habitats 
adjacent to occupied areas to expand all remaining populations (Malaney 
et al. 2012, p. 10). If, in the future, we find that restoration of 
primary constituent elements, particularly seasonally perennial water, 
is successful, further revision of critical habitat may be appropriate.
    In addition, we recognize that critical habitat designated at a 
particular point in time may not include all of the

[[Page 14266]]

habitat areas that we may later determine are necessary for the 
recovery of the subspecies. The designation of critical habitat is only 
one component of recovery for a 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 
subspecies; to meet the requirements of the Act, the Service determined 
areas that were occupied by the subspecies at the time of listing that 
contained the physical and biological features essential to the 
conservation of the jumping mouse and unoccupied areas that are 
essential for its conservation.
    (2) Comment: Unit 1 (Sugarite Canyon) should be expanded to include 
the entire watershed of Chicorica Creek.
    Our Response: The entire watershed of Chicorica Creek does not meet 
the definition of critical habitat for this subspecies because the 
entire watershed was neither occupied at the time of listing nor is it 
essential to the conservation of the subspecies. 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. We are designating as critical habitat all areas where the 
jumping mouse is known to occur. 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.
    We are designating 13.0 km (8.1 mi) in the unit, which is within 
the range of at least 27.5 to 73.2 ha (68 to 181 ac), along 9 to 24 km 
(5.6 to 15 mi) of flowing streams, ditches, or canals needed for 
resilient populations of jumping mice (see our response to Comment 1, 
above). This provides the needed size and connectivity of suitable 
habitat of the jumping mouse in Sugarite Canyon for population 
redundancy and resiliency. The areas upstream and downstream of the 
13.0 km (8.1 mi) in the unit do not contain suitable habitat, nor are 
these areas restorable. They are highly degraded areas that lack dense 
herbaceous vegetation, and are not likely to be restored to suitable 
habitat (see our response to Comment 1, above).
    (3) Comment: Unit 2 (Coyote Creek) should include the Mora River 
because there are two historic locations.
    Our Response: The Mora River does not meet the definition of 
critical habitat for this subspecies because it was neither occupied at 
the time of listing nor is it essential to the conservation of the 
subspecies (see our response to Comment 2, above). No recent surveys 
(i.e., post 2005) have been conducted in the Mora River area (Frey 
2008c, p. 37); therefore, the best available scientific and commercial 
data, the survey data from post 2005, indicate the Mora River is 
unoccupied.
    We are designating 11.8 km (7.4 mi) in Unit 2 to provide the needed 
size and connectivity of suitable habitat of the jumping mouse within 
Coyote Creek for population redundancy and resiliency. This size is 
within the range of at least 27.5 to 73.2 ha (68 to 181 ac), along 9 to 
24 km (5.6 to 15 mi) of flowing streams, ditches, or canals, needed for 
resilient populations of jumping mice (see our response to Comment 1, 
above). We did not propose or include the Mora River as critical 
habitat because it is not perennial and does not contain suitable 
habitat between Guadalupita (a site along Coyote Creek within Unit 2) 
and the historic collection site on the Mora River (i.e., sewage pond) 
(Frey 2008c, p. 37). The area is not essential to the conservation of 
the subspecies because it no longer contains perennial water and is 
therefore unsuitable and not restorable.
    (4) Comment: Subunit 3A (San Antonio Creek, in Unit 3--Jemez 
Mountains) should be expanded to include Redondo Creek and San Antonio 
Creek on the Valles Caldera National Preserve because there is a 
historical location on the preserve and potentially suitable habitat in 
the vicinity of the junction of these two creeks.
    Our Response: Redondo Creek and San Antonio Creek on the Valles 
Caldera National Preserve do not meet the definition of critical 
habitat for this subspecies because the areas were neither occupied at 
the time of listing nor are the areas essential to the conservation of 
the subspecies. They are highly degraded areas that lack dense 
herbaceous vegetation, and are not likely to be restored to suitable 
habitat (see our response to Comment 1, above). Although Frey (2005a, 
p. 6) reported a jumping mouse historical record from the base of 
Redondo Peak in a beaver pond, possibly in the vicinity of Redondo 
Creek, the record was based on a personal communication of W. Whitford 
in the 1970s, and there is no verifiable specimen with a specific 
capture location. The presence of beavers creates diverse wetland 
communities that support the dense riparian herbaceous vegetation 
utilized by jumping mice (see section 5.1.6 of the SSA Report (Service 
2014)). There are no longer any established beaver populations within 
the Valles Caldera National Preserve to maintain suitable habitat. In 
recent surveys, no jumping mice have been captured on the Valles 
Caldera National Preserve (VCNP 2012, pp. 20-21), such that the best 
available scientific and commercial information indicates the area is 
unoccupied.
    We are designating critical habitat within Subunit 3A starting from 
the northern part of San Antonio Creek where it exits the boundary of 
the Valles Caldera National Preserve and follows the creek 11.5 km (7.1 
mi) where it meets private land immediately downstream of the San 
Antonio Campground, which would provide the needed size and 
connectivity of suitable habitat of the jumping mouse in the Jemez 
Mountains and provide population redundancy and resiliency. This size 
is within the range of at least 27.5 to 73.2 ha (68 to 181 ac), along 9 
to 24 km (5.6 to 15 mi) of flowing streams, ditches, or canals needed 
for resilient populations of jumping mice (see our response to Comment 
1, above).
    (5) Comment: Subunit 3B (Rio Cebolla, in Unit 3--Jemez Mountains) 
should be expanded to include additional U.S. Forest Service (Forest 
Service) lands within Lake Fork Canyon, a major tributary to the Rio 
Cebolla and the area upstream of Hay Canyon to Forest Road 257.
    Our Response: We did not expand the designation to include the 
tributary in Lake Fork Canyon or the area upstream of Hay Canyon 
because these areas were neither occupied at the time of listing nor 
are the areas essential to the conservation of the subspecies. In 2005, 
two jumping mice were captured at the confluence of Lake Fork Canyon 
and the Rio Cebolla within the livestock and vehicle exclosure that 
contained well-developed riparian habitat dominated by sedges, diverse 
forbs, grasses, and a small patch of alder (Frey 2005a, p. 27). 
However, no jumping mice were captured further upstream along the 
tributary of Lake Fork Canyon and the area did not contain perennial 
water or suitable habitat. Without suitable habitat and a capture 
record post 2005, the area is not considered occupied at the time of 
listing. Water is intermittent through the Lake Fork Canyon, and 
riparian areas are isolated (Frey 2007b, p. 12). They are highly 
degraded areas that lack dense herbaceous vegetation, and are not 
likely to be restored to

[[Page 14267]]

suitable habitat (see our response to Comment 1, above). Without 
perennial water in this stretch, suitable habitat is unlikely to be 
restored because the dense vegetation needed by the subspecies will not 
be supported without sufficient water. Therefore, the area is not 
considered essential to the conservation of the subspecies.
    The area upstream of Hay Canyon, including McKinney Pond, contains 
poorly developed riparian habitat that is currently unsuitable for the 
jumping mouse (Frey 2007b, pp. 9-10). Additionally, deer mice 
(Peromyscus maniculatus) dominated the small mammal community, 
suggesting a disturbed or degraded riparian system (Frey 2007b, pp. 9-
10). Further, there are no historic capture locations in the area 
upstream of Hay Canyon. These additional areas are outside the 
historical range of the subspecies. The areas we have identified as 
critical habitat, if restored and occupied, are sufficient to support 
conservation; therefore, designating areas outside of the historical 
range is not necessary.
    We are designating critical habitat within Subunit 3B starting from 
an old beaver dam about 0.6 km (0.4 mi) north of Hay Canyon, and 
following the creek about 20.7 km (12.9 mi) downstream where it meets 
the Rio de las Vacas, which would provide the needed size and 
connectivity of suitable habitat of the jumping mouse in the Jemez 
Mountains and provide population redundancy and resiliency. This 
subunit contains all of the current and historic locations for the 
jumping mouse along the Rio Cebolla (Frey 2005a, entire; 2007b, 
entire). Without suitable habitat and without post-2005 survey records 
we consider the areas above Hay Canyon and along Lake Fork Canyon to be 
unoccupied. Further, these areas are not considered essential to the 
conservation of the subspecies for the reasons stated above. The size 
of the subunit is within the range of at least 27.5 to 73.2 ha (68 to 
181 ac), along 9 to 24 km (5.6 to 15 mi) of flowing streams, ditches, 
or canals needed for resilient populations of jumping mice (see our 
response to Comment 1, above).
    (6) Comment: Subunit 3C (Rio de las Vacas, in Unit 3--Jemez 
Mountains) should be expanded to include the Rito Pe[ntilde]as Negras, 
a major tributary to the Rio de las Vacas, because there are at least 
three historical jumping mouse locations in the area.
    Our Response: We did not expand the designation to include the Rito 
Pe[ntilde]as Negras because the area was neither occupied at the time 
of listing nor is it essential to the conservation of the species. This 
area contains poorly developed riparian habitat that is unsuitable for 
the jumping mouse and is not likely restorable (Frey 2005a, pp. 29-30). 
Without suitable habitat and without post-2005 survey records we 
consider this area unoccupied. Further, without restorable habitat the 
area is not considered essential to the conservation of the subspecies. 
The area lacks dense herbaceous vegetation, and is not likely to be 
restored to suitable habitat (see our response to Comment 1, above). In 
this subunit, we are designating 454 ha (1,122 ac) along 23.3 km (14.5 
mi) of restorable habitat that would provide the needed size and 
connectivity of suitable habitat for the jumping mouse in the Jemez 
Mountains and support population redundancy and resiliency. This size 
is within the range of at least 27.5 to 73.2 ha (68 to 181 ac), along 9 
to 24 km (5.6 to 15 mi) of flowing streams, ditches, or canals needed 
for resilient populations of jumping mice (see our response to Comment 
1, above).
    (7) Comment: Unit 3 (Jemez Mountains) should be expanded to include 
a new subunit in Virgin Canyon, a major tributary to the Rio Guadalupe, 
because there is a historic (1989) jumping mouse location in the area.
    Our Response: We did not expand the designation to include the 
Virgin Canyon because the area was neither occupied at the time of 
listing nor is it essential to the conservation of the subspecies. 
Although Frey (2005a, pp. 6, 25-26) reported a jumping mouse historical 
record from the Virgin Canyon, the specific capture location is unknown 
and could have been anywhere from the drainage. The area was surveyed 
in 2005, and no jumping mice were captured, and there are no current 
records indicating the subspecies is present (Frey 2005a, pp. 13, 24-
25). Consequently, the area is not considered occupied at the time of 
listing. In 2005, there was little to no suitable riparian habitat or 
wet meadows along the creek (Frey 2005a, p. 25), and the area is not 
likely restorable. The area lacks dense herbaceous vegetation, and is 
not likely to be restored to suitable habitat (see our response to 
Comment 1, above). Consequently, the area is not considered essential 
to the conservation of the subspecies.
    (8) Comment: A new unit should be added for the 1932 capture 
records from Tularosa Creek near Mescalero, Otero County, New Mexico.
    Our Response: We did not expand the designation to include Tularosa 
Creek because the area was neither occupied at the time of listing nor 
is it essential to the conservation of the subspecies. Frey (2008c, p. 
35) reported a historic record from 1932 along Tularosa Creek. In 2006, 
Frey (2008c, p. 35) indicated that the general area of the 1932 capture 
locations of the jumping mouse along Tularosa Creek may have 
potentially suitable habitat. However, since then, the stream, marshes, 
and wet meadows have dried (Sivinski 2012, pp. 18-21) and the area is 
dominated by invasive plants (Sivinski 1996, p. 3; 2009a, p. 2). 
Without suitable habitat and a capture record post 2005, the area is 
not considered occupied at the time of listing. Suitable habitat is 
unlikely to be restored because without perennial water in this stretch 
the area will not support the dense vegetation needed by the 
subspecies. The area lacks dense herbaceous vegetation, and is not 
likely to be restored to suitable habitat (see our response to Comment 
1, above). Therefore, the area is not essential to the conservation of 
the subspecies.
    (9) Comment: In 2013, water flowed downstream of the Lincoln 
National Forest Boundary of Subunit 4A (Silver Springs, in Unit 4--
Sacramento Mountains); therefore, the subunit should be expanded 
downstream at least 1.9 km (1.2 mi) to include this potential and 
recoverable habitat on the Mescalero Apache Reservation.
    Our Response: We did not expand the designation to include any 
lands on the Mescalero Apache Reservation because the area was neither 
occupied at the time of listing nor is it essential to the conservation 
of the subspecies. There are no records of jumping mouse from post 
2005. The flow downstream of the Lincoln National Forest boundary is 
variable, with water flowing onto the Mescalero Apache Reservation some 
years and remaining dry other years (Frey 2005a, p. 31). Moreover, the 
stream channel downstream of the boundary is incised, and suitable 
jumping mouse habitat no longer exists. Without perennial water flow, 
the area frequently dries and will not support the dense vegetation 
needed by the subspecies, and it is not likely to be restored. The area 
lacks dense herbaceous vegetation, and is not likely to be restored to 
suitable habitat (see our response to Comment 1, above).
    (10) Comment: Subunit 4B (Upper Pe[ntilde]asco, in Unit 4--
Sacramento Mountains) should be expanded to include about 4.0 km (2.5 
mi) of Water Canyon upstream from the confluence with the Rio 
Pe[ntilde]asco. This stretch of stream had water present during 2013. 
There is also restorable habitat above Forest Road 164 that should be 
included as critical habitat.
    Our Response: We are designating 136 ha (335 ac) along 6.4 km (4.0 
mi) of

[[Page 14268]]

restorable habitat. Subunit 4B begins at the junction of Forest Service 
Road 164 and New Mexico Highway 6563 and follows the Rio Pe[ntilde]asco 
drainage downstream (or above Forest Service Road 164) to about 2.4 km 
(1.5 mi) below Bluff Spring at the boundary of private and Forest 
Service lands. Therefore, the subunit already includes the restorable 
habitat above Forest Road 164.
    We did not expand the designation to include Water Canyon, however, 
because it was neither occupied at the time of listing nor is it 
considered essential to the conservation of the subspecies. The water 
in these additional areas is variable, flowing some years and dry other 
years (Frey 2005a, p. 33). Moreover, suitable jumping mouse habitat no 
longer exists and is not likely to be restored because the area 
frequently dries and will not support the dense vegetation needed by 
the subspecies. The area lacks dense herbaceous vegetation, and is not 
likely to be restored to suitable habitat (see our response to Comment 
1, above).
    (11) Comment: Subunit 4D (Wills Canyon, in Unit 4--Sacramento 
Mountains) should be expanded to include the tributary in Hubbell 
Canyon. Extending the subunit to the Rio Pe[ntilde]asco could provide 
important connectivity with Subunit 4C (Middle Pe[ntilde]asco, in Unit 
4--Sacramento Mountains).
    Our Response: We did not expand the designation to include Hubble 
Canyon or the additional areas downstream of Subunit 4D because they 
were neither occupied at the time of listing nor are they essential to 
the conservation of the subspecies. Although it is possible that the 
jumping mouse historically existed in Hubble Canyon, there are no 
historic records and recent surveys did not detect the subspecies 
(Forest Service 2012h, p. 2). The area downstream of Subunit 4D to the 
confluence of the Rio Pe[ntilde]asco was not included because the 
stream channel is eroded, riparian habitat is poorly developed, and 
water is intermittent (Frey 2005a, p. 34). Since the area frequently 
dries, it is not likely to be restored because it will not support the 
dense vegetation needed by the subspecies. The area lacks dense 
herbaceous vegetation, and is not likely to be restored to suitable 
habitat (see our response to Comment 1, above).
    (12) Comment: Subunit 4E (Agua Chiquita Canyon, in Unit 4--
Sacramento Mountains) should be expanded to include additional areas 
downstream to the Town of Weed, including the tributaries in Hay and 
Spring Canyons.
    Our Response: We did not expand the designation to include Hay or 
Spring Canyons or the additional area downstream of Subunit 4E to Weed 
because they were neither occupied at the time of listing nor are they 
essential to the conservation of the subspecies. The area downstream of 
Subunit 4E to Weed was not included because riparian habitat is nearly 
absent and the water is intermittent (Frey 2005a, pp. 35-36). In Hay 
Canyon, there is little to no riparian habitat. In Spring Canyon the 
streambed is dry and eroded with no riparian vegetation in one historic 
capture location. In another historic location within Spring Canyon, 
water only flowed for about 0.16 km (0.1 mi) before ceasing, and 
riparian habitat was only a narrow strip 2.5 to 3 meters (m) (8.2 to 
9.8 feet (ft)) wide (Frey 2005a, p. 35). Since these areas frequently 
go dry, they will not support the dense vegetation needed by the 
subspecies and are therefore not likely to be restored. The area lacks 
dense herbaceous vegetation, and is not likely to be restored to 
suitable habitat (see our response to Comment 1, above). Further, 
recent surveys in Hay and Spring Canyons did not detect the subspecies 
(Frey 2005a, pp. 35-36).
    (13) Comment: Unit 5 (White Mountains) should be expanded to 
include a new subunit for the North Fork of the White River on Fort 
Apache Reservation based on historical records from at least two 
locations.
    Our Response: We did not include a new subunit for the North Fork 
of the White River because the area was neither occupied at the time of 
listing nor is it essential to the conservation of the subspecies. The 
most recent records are from 1933 and 1967 (Frey 2011; Appendix 1). We 
do not have recent survey information indicating the area is occupied, 
nor do we have recent habitat information to demonstrate that the area 
could support suitable habitat for the jumping mouse. The area lacks 
dense herbaceous vegetation, and is not likely to be restored to 
suitable habitat (see our response to Comment 1, above). In Unit 5, we 
are designating 478 ha (1,181 ac) along 22.6 km (14.0 mi) of stream, 
which exceeds the range of at least 27.5 to 73.2 ha (68 to 181 ac), 
along 9 to 24 km (5.6 to 15 mi) of flowing streams, ditches, or canals 
needed for resilient populations of jumping mice (see our response to 
Comment 1, above).
    (14) Comment: Subunit 5A (Little Colorado, in Unit 5--White 
Mountains) should be expanded to include Lee Valley Creek above the Lee 
Valley Reservoir and the wilderness area in the headwaters of both 
forks of the Little Colorado River.
    Our Response: We did not expand the designation to include Lee 
Valley Reservoir or the additional areas in the headwaters of both 
forks of the Little Colorado River because these areas were neither 
occupied at the time of listing nor are they essential to the 
conservation of the subspecies. The areas are not essential to the 
conservation of the subspecies because Lee Valley Reservoir does not 
contain suitable habitat and the reservoir would be an impediment to 
movements between Lee Valley Creek and the Little Colorado River. In 
1981, when the subspecies was last detected, the habitat along Lee 
Valley Creek contained tall grass meadow with willows growing along a 
small stream, but the current habitat is composed of shrubs that are 
very sparse and mostly decadent or dead, with no live willows recorded 
(Frey 2011, p. 88). The area lacks dense herbaceous vegetation, and is 
not likely to be restored to suitable habitat (see our response to 
Comment 1, above). Recent surveys in these areas did not detect the 
subspecies (Frey 2011, pp. 25, 88; Underwood 2007, entire). We are 
designating 22.6 km (14.0 mi) of restorable habitat, which would 
provide the needed size and connectivity of suitable habitat of the 
jumping mouse along the Little Colorado River and provide population 
redundancy and resiliency. This size is within the range of at least 
27.5 to 73.2 ha (68 to 181 ac), along 9 to 24 km (5.6 to 15 mi) of 
flowing streams, ditches, or canals needed for resilient populations of 
jumping mice (see our response to Comment 1, above).
    (15) Comment: Subunit 5B (Nutrioso, in Unit 5--White Mountains) 
should be expanded to include additional areas downstream into New 
Mexico to the Luna Valley, including the tributaries within Stone Creek 
and Trout Creek watersheds.
    Our Response: We did not expand the designation to include 
additional areas downstream into New Mexico, including the tributaries 
within Stone and Trout Creek watersheds because they were neither 
occupied at the time of listing nor are they essential to the 
conservation of the subspecies. Although it is possible that the 
subspecies could occur in the watershed, there are no confirmed reports 
of the jumping mouse in the Luna Valley; consequently, the area is 
considered unoccupied. These additional areas are outside the 
historical range of the subspecies. The areas we are identifying as 
critical habitat, if restored and occupied, are sufficient to support 
conservation.

[[Page 14269]]

    (16) Comment: Subunits 5D, 5E, and 5F (East Fork Black, West Fork 
Black, and Boggy and Centerfire, in Unit 5-White Mountains) should be 
expanded to include additional areas downstream of each subunit until 
they join together. In the headwaters of Subunit 5E, additional habitat 
should include the West Fork of the Black River, Thompson Creek, and 
Burro Creek.
    Our Response: We did not expand the designation to include 
additional areas downstream in Subunits 5D, 5E, and 5F, nor into the 
headwaters of Subunit 5E, because they were neither occupied at the 
time of listing nor are they essential to the conservation of the 
subspecies. Recent surveys in two small tributaries to Burro Creek did 
not detect the subspecies, and it is not historically known from this 
area (Frey 2011, p. 104). Moreover, Burro Creek is not essential to the 
conservation of the subspecies because the creek has a relatively high 
gradient with rocky substrate, which is not suitable habitat for the 
jumping mouse (Frey 2011, p. 104). All of the historical locations on 
the West Fork of the Black River are within the designated critical 
habitat (Morrison 1991, pp. 5, 10; Frey 2011, p. 104); there are no 
recent or historic surveys indicating the subspecies' presence 
downstream of the area designated as critical habitat. Therefore, the 
area is considered unoccupied and outside the historical range of the 
subspecies. The areas we have identified as critical habitat, if 
restored and occupied, would be sufficient to support conservation.
    The subspecies is not known historically from Thompson Creek or the 
headwaters of Subunit 5E. The areas we have identified as critical 
habitat, if restored and occupied, would likely be sufficient to 
support conservation; therefore, we do not consider areas outside the 
historical range as essential to the conservation of the subspecies. 
Finally, the precise capture locations of two historic records on the 
East Fork Black River and on the lower Black River could not be 
determined (Frey 2011, p. 23). Consequently, these areas are not 
considered occupied or essential for jumping mouse conservation.
    (17) Comment: Subunit 5G (Corduroy, in Unit 5--White Mountains) 
should be expanded to include the entire Fish Creek drainage to the 
Black River.
    Our Response: We did not expand the designation in Subunit 5G to 
include the additional areas in the Fish Creek drainage because the 
areas were neither occupied at the time of listing nor are they 
essential to the conservation of the subspecies. Recent surveys did not 
detect the subspecies, and the subspecies is not known historically 
from Fish Creek (Morrison 1991, p. 12; Frey 2011, pp. 87, 89). The 
additional areas are neither occupied at the time of listing nor are 
they considered essential to the conservation of the subspecies because 
they are outside the historical range of the subspecies. The areas we 
have identified as critical habitat, if restored and occupied, would be 
sufficient to support conservation.
    (18) Comment: Subunit 5H (Campbell Blue, in Unit 5--White 
Mountains) should be expanded to include additional areas upstream to 
the junction of Castle Creek, which is a tributary to Campbell Blue, 
and downstream into New Mexico, including the Blue River drainage.
    Our Response: We did not expand the designation in Subunit 5H to 
include additional areas upstream of Castle Creek or downstream into 
New Mexico including the Blue River drainage because these areas were 
neither occupied at the time of listing nor are these areas essential 
to the conservation of the subspecies. Recent surveys did not detect 
the subspecies (Morrison 1991, p. 12; Frey 2011, pp. 87, 89) from these 
areas. The precise capture location of a historical record on lowermost 
Campbell Blue Creek could not be determined (Frey 2011, p. 101). The 
subspecies is not known historically from Castle Creek. There are no 
confirmed reports of the jumping mouse near the Blue River drainage in 
New Mexico (Frey 2007, p. 2). Consequently, these areas are not 
considered occupied. Potentially suitable habitat on lower Campbell 
Blue Creek was restricted to very small, isolated areas away from the 
creek. The main channel of Campbell Blue Creek is rocky and devoid of 
riparian vegetation (Frey 2011, p. 101), and likely not restorable. 
Finally, no suitable habitat was found downstream of the Turkey Creek 
confluence along either Campbell Blue or the Blue River (Frey 2011, p. 
101). These areas are not essential to the conservation of the 
subspecies and are outside the historical range of the subspecies. The 
areas we have identified as critical habitat, if restored and occupied, 
would be sufficient to support conservation.
    (19) Comment: Unit 5 (White Mountains) should be expanded to 
include a new subunit for Beaver Creek, including its tributary 
Hannagan Creek.
    Our Response: We did not expand the designation in Unit 5 to 
include a new subunit for Beaver Creek, including Hannagan Creek, 
because it was neither occupied at the time of listing nor is it 
essential to the conservation of the subspecies. The historical 
location is from 1932 and 1933, there is no suitable habitat further 
downstream along upper Beaver Creek, and water in the higher reaches of 
Hannagan Creek is intermittent (Frey 2011, p. 105). Since Hannagan 
Creek is intermittent in areas and frequently dries, and because the 
stream has a relatively high gradient, it is not likely to be restored 
because it will not support the dense vegetation needed by the 
subspecies.
    (20) Comment: Unit 6 (proposed as Middle Rio Grande, but renamed 
Bosque del Apache NWR in this final rule) should be expanded to include 
a new subunit for Bernardo and La Joya Wildlife Areas along the Rio 
Grande in New Mexico.
    Our Response: We did not expand the designation in Unit 6 to 
include a new subunit for Bernardo and La Joya Wildlife Areas because 
they were neither occupied at the time of listing nor are they 
essential to the conservation of the subspecies. Although it is 
possible that the jumping mouse historically existed in these areas 
along the Rio Grande, there are no historical records for these areas. 
Further, recent surveys at Casa Colorado Waterfowl Area, the one 
historical location in the general vicinity of the Bernardo and La Joya 
Wildlife Areas along the Rio Grande, did not detect the subspecies 
(Morrison 1988, pp. 16-21; Frey 2012e, p. 1). These additional areas 
are not essential to the conservation of the subspecies because they 
are outside the historical range of the subspecies. The areas within 
the historical range of the jumping mouse that we have identified as 
critical habitat, if restored and occupied, would be sufficient to 
support conservation.
    (21) Comment: Subunit 6C (proposed as Bosque del Apache NWR in Unit 
6--Middle Rio Grande, but renamed Unit 6--Bosque del Apache NWR in this 
final rule) should be expanded to include all of the refuge management 
units known to have been used by the jumping mouse.
    Our Response: We did not expand the designation in Bosque del 
Apache NWR to include all of the refuge management units known to have 
been used by the jumping mouse because they were neither occupied at 
the time of listing nor are they essential to the conservation of the 
subspecies. While these refuge management units outside of Bosque del 
Apache NWR are within the historical range of the subspecies, the best 
available scientific and commercial data do not indicate that they were 
occupied at the time of listing. The refuge management units outside of 
the designation do not have suitable habitat (Frey and Wright 2012, p. 
23, Figure 6), and the habitat is not

[[Page 14270]]

restorable because seasonally perennial flowing water is lacking. The 
area lacks dense herbaceous vegetation, and is not likely to be 
restored to suitable habitat (see our response to Comment 1, above). We 
acknowledge that the area we are designating as Unit 6 in this final 
rule does not currently contain continuous suitable habitat, but that 
area generally has seasonally perennial flowing water with saturated 
soils (Frey and Wright 2012, entire) and, therefore, has a high 
potential of being restored to suitable habitat. We proposed and are 
designating 21.1 km (13.1 mi) in Bosque del Apache NWR as critical 
habitat in Unit 6, which would provide the needed size and connectivity 
of suitable habitat of the jumping mouse within Bosque del Apache NWR 
to support population redundancy and resiliency. This size is within 
the range of at least 27.5 to 73.2 ha (68 to 181 ac), along 9 to 24 km 
(5.6 to 15 mi) of flowing streams, ditches, or canals needed for 
resilient populations of jumping mice (see our response to Comment 1, 
above).
    (22) Comment: Unit 8 (Sambrito Creek) should be expanded to include 
additional areas on the San Juan and Piedra Rivers between the Navajo 
Reservoir upstream to 2,316 m (7,600 ft) elevation, which is the upper 
elevation limit for the jumping mouse in the area.
    Our Response: We did not expand the designation in Unit 8 to 
include additional areas on the San Juan and Piedra Rivers because they 
were neither occupied at the time of listing nor are they considered 
essential to the conservation of the subspecies. Seven of the eight 
historical locations (from 1960) are within the general area designated 
as critical habitat along Sambrito Creek (Frey 2008c, pp. 36, 42; 
2011a, p. 4). The eighth location is about 4.0 km (1.25 mi) north of 
Unit 8, and there is no suitable or restorable habitat near this 
historical location. The area lacks dense herbaceous vegetation and is 
not likely to be restored to suitable habitat (see our response to 
Comment 1, above). There are no other historical collections of the 
jumping mouse within this geographic management area. We are 
designating 75 ha (184 ac) along 4.6 km (2.9 mi) of stream within Unit 
8. This size is above the minimum of the range of at least 27.5 to 73.2 
ha (68 to 181 ac), along 9 to 24 km (5.6 to 15 mi) of flowing streams, 
ditches, or canals needed for resilient populations of jumping mice 
(see our response to Comment 1, above).
    (23) Comment: A new unit should be added for the upper Rio Grande 
based on the 1858 record from Fort Burgwyn, Taos County, and an 1894 
record from Santa Fe, Santa Fe County, both in New Mexico.
    Our Response: We did not include a new unit because these areas 
were neither occupied at the time of listing nor are they essential to 
the conservation of the subspecies. Both records are over 100 years 
old, and neither includes a specific capture location. The specific 
location of the Santa Fe record is completely unknown and could have 
been anywhere near the City of Santa Fe (Frey 2006d, pp. 12-15; 2008c, 
p. 40). The Fort Burgwyn location may have been in the vicinity of the 
confluence of the Rio de la Olla and Rio Grande del Rancho, 14.6 km 
(9.0 mi) south of Taos, but this is not confirmed. Consequently, these 
areas were not considered occupied at the time of listing. When Frey 
(2006d, pp. 28-29, 73) surveyed in the vicinity of Fort Burgwyn, only 
western jumping mice (Zapus princeps) were captured, likely because 
there was little current suitable habitat for the jumping mouse. 
Additionally, deer mice dominated the small mammal community, 
suggesting a disturbed or degraded riparian system (where suitable 
habitat no longer exists and is not likely restorable) (Frey 2006, p. 
29). Consequently, these areas are not essential for the conservation 
of the subspecies.
    (24) Comment: There is concern about the exclusion under section 
4(b)(2) of the Act of two Pueblos from the final designation because 
the jumping mouse has a history of occupancy on these lands. The sites 
proposed on the two Pueblos would be valuable within the context of the 
overall distribution-wide planning for the conservation of the jumping 
mouse. Therefore, the Service should work closely with these Pueblos on 
management plans that would benefit the jumping mouse and its habitat.
    Our Response: 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. The Pueblo of Isleta has developed 
and maintained a Riverine Management Plan that includes the jumping 
mouse and its habitat (Service 2005; 70 FR 60955, October 19, 2005; 
Pueblo of Isleta 2005, entire; 2014, entire). The Service has 
established conservation partnerships with Ohkay Owingeh and Pueblo of 
Isleta, and both pueblos have implemented conservation and recovery 
actions for the improvement of riparian habitat and the jumping mouse. 
As analyzed in the Tribal Lands--Exclusions Under Section 4(b)(2) of 
the Act section, below, we have excluded both tribal areas from 
critical habitat based on our ongoing conservation partnerships where 
the benefits of exclusion from critical habitat outweigh the benefits 
of including an area within critical habitat.
    (25) Comment: One of the peer reviewers indicated that the 
description of the primary constituent elements (PCEs) contains a small 
amount of outdated information. While the jumping mouse is often, but 
not always, associated with beaked sedge, willows, or alders, an 
association with reed canarygrass is unusual.
    Our Response: Based on this updated information, we have revised 
the PCEs to remove reference to reed canarygrass (see Primary 
Constituent Elements section, below).
    (26) Comment: The manner in which Frey (2011, p. 29) is cited in 
the proposed rule seems to indicate that the author recommended that 
stream lengths between 4.5 and 6.0 km (2.8 to 3.7 mi) would support a 
resilient population. The information on stream length was taken out of 
context.
    Our Response: Frey (2011, p. 29) summarized characteristics of 
sites where the subspecies had been captured in the White Mountains, 
Arizona. We revised the SSA Report and this final rule to clarify that 
Frey (2011, p. 29) reported stream lengths containing at least 4.5 to 6 
km (2.8 to 3.7 mi) of continuous, dense, riparian herbaceous vegetation 
(suitable habitat) would likely support populations of jumping mice 
with a high likelihood of long-term persistence.
    (27) Comment: The determination that stream lengths should be at 
least twice as large as those reported by Frey (2011, p. 29) introduces 
a non-scientific basis for the designation of critical habitat.
    Our Response: Stream length was not determined by doubling the 
lengths reported by Frey (2011, p. 29). In the SSA Report, we clarified 
our use of the best scientific and commercial information available for 
the jumping mouse (Frey 2011, p. 29) and for the Preble's meadow 
jumping mouse (Zapus hudsonius preblei) (Service 2003, pp. 24-25) to 
explain that the appropriate configuration of critical habitat is 
provided by protecting multiple local populations (also called 
subpopulations) throughout a minimum length of stream, ditch, or canal 
of 9 to 24 km (5.6 to 15 mi) including about 27.5 to 73.2 ha (68 to 181 
ac) of suitable habitat. The minimum area needed is given as a range 
due to the uncertainty

[[Page 14271]]

of an absolute minimum and because local conditions within drainages 
vary (see our response to Comment 1, above). The Recovery Team for the 
Preble's meadow jumping mouse recommended that at least several medium-
sized populations (at least 500 mice) should be protected with each 
population distributed along a 14- to 26-km (9- to 16-mi) network of 
connected streams whose hydrology supports riparian vegetation (Service 
2003, p. 25). Frey (2011, p. 29) reported that stream lengths 
containing at least 4.5 to 6 km (2.8 to 3.7 mi) of continuous, dense, 
riparian herbaceous vegetation (suitable habitat) would likely support 
populations of jumping mice with a high likelihood of long-term 
persistence. Following severe wildfires, we found that, depending on 
fire intensity and the subsequent ash and debris flow within stream 
reaches, jumping mouse populations can be significantly affected and 
likely extirpated, even when 15 km (9 mi) of continuous suitable 
habitat existed prior to the wildfire (Sugarite Canyon; Frey 2006d, pp. 
18-21; 2012b, p. 16; Frey and Kopp 2013, entire). After reviewing this 
information, we conclude that current jumping mouse populations need 
connected areas of suitable habitat along at least 9 to 24 km (5.6 to 
15 mi) of nearly continuous suitable habitat to support populations of 
jumping mice with a high likelihood of long-term persistence from these 
types of stochastic and catastrophic events.
    (28) Comment: The jumping mouse may have been extirpated from 
Bosque del Apache NWR since 2010, despite the fact that the refuge 
represents one of the largest protected patches of recently occupied 
habitat. From 2009-2010, the jumping mouse occupied a 2.7-km (1.7-mi) 
reach of the Riverside Canal, but the total length of potential habitat 
was about 10.5 km (6.5 mi). The failure to verify persistence of the 
subspecies in 2013 suggests that critical habitat units are not large 
enough.
    Our Response: The jumping mouse is not extirpated from Bosque del 
Apache NWR. They were detected during surveys in 2014 (Frey 2013, 
entire; Service 2013, entire; 2013a, entire; 2013b, entire; Service 
2014a, entire), which confirmed the persistence of the subspecies on 
Bosque del Apache NWR within the remaining habitat. We are designating 
21.1 km (13.1 mi) within Bosque del Apache NWR, which would provide the 
needed size and connectivity of suitable habitat to increase the 
potential distribution of the jumping mouse and provide population 
redundancy and resiliency. We are designating this area because this 
area generally has perennial flowing water with saturated soils (Frey 
and Wright 2012, entire) and a high potential of being restored to 
suitable habitat.
    (29) Comment: We received comments pertaining to dispersal 
distances and the size of critical habitat units. One recommendation 
was that the Service should consider dispersal distances from studies 
on the Preble's meadow jumping mouse of up to 4.3 km (2.7 mi), whereas 
another suggestion found our characterization of dispersal distances 
and home range sizes of the jumping mouse appropriate. Several of the 
proposed critical habitat units are roughly the same size or smaller 
than 4.3 km (2.7 mi), suggesting that these units could consist of only 
a single subpopulation that would be exceptionally vulnerable to 
extinction.
    Our Response: We did consider information on the natural history of 
Preble's meadow jumping mouse; however, as stated in the SSA Report, 
studies indicate that the jumping mouse does not appear to travel as 
great a distance as Preble's meadow jumping mouse. The maximum distance 
travelled between two successive points by all radio-collared jumping 
mice on Bosque del Apache NWR was 744 m (2,441 ft), but most regular 
daily and seasonal movements were less than 100 m (328 ft) (Frey and 
Wright 2012, pp. 16, 109; Figure 9). See section 2.6 ``Movements and 
Home Range'' in the SSA Report (Service, 2014) for additional 
information.
    We reviewed the available natural history information and 
determined that there is not enough justification to modify our 
original critical habitat units, especially since our units were 
generally limited to presence of the primary constituent element of 
seasonally perennial water. Without water, the other PCEs would not be 
restored. After considering the variable quality of habitat in many 
areas outside of the proposed critical habitat, we determined that 
larger critical habitat units with more reaches of unsuitable or low-
quality habitat would not provide additional benefit to the jumping 
mouse. Consequently, we continue to conclude that current jumping mouse 
populations need connected areas of suitable habitat along at least 9 
to 24 km (5.6 to 15 mi) of continuous suitable habitat to support 
viable populations of jumping mice with a high likelihood of long-term 
persistence. Also, see our response to Comment 1, above.
    (30) Comment: Habitat used by jumping mice is usually linear and 
very narrow, and must have appropriate vegetation structure, which 
makes the jumping mice especially vulnerable to habitat fragmentation. 
Moreover, the jumping mouse has a large geographic range and exhibits 
natural history features that render jumping mice particularly 
vulnerable to extinction, including habitat specialization, low 
densities, and low fecundity. Despite these natural vulnerabilities, 
the total length of proposed critical habitat was only 310.5 km (192.9 
mi). In comparison, spikedace (Meda fulgida) (1,013 km (630 mi)) and 
loach minnow (Tiaroga cobitis) (983 km (610 mi)) have two to three 
times more critical habitat than what is proposed for the jumping 
mouse, yet these fish have a much smaller natural distribution limited 
to the Gila River watershed. An approach for the jumping mouse based on 
a rationale similar to spikedace and loach minnow, which emphasized 
connectivity, would better provide for the conservation of the jumping 
mouse.
    Our Response: The conservation needs of different species, 
including critical habitat designations, are developed independent of 
one another. The Act requires that we designate only 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 and which may require 
special management considerations or protection. In addition, the Act 
requires that we determine whether specific areas outside the 
geographical area occupied by the species at the time it is listed are 
essential for the conservation of the species. We have identified those 
areas occupied at the time of listing that contain the PCEs essential 
for jumping mouse conservation. In addition, we have identified 
unoccupied areas, adjacent to these occupied areas, which are essential 
to the conservation of the subspecies. See our response to Comment 1, 
above, for additional information.
    As stated in the SSA Report, habitat connectivity and patch sizes 
influence the suitability of habitat (Service 2014). However, in 
designating critical habitat, we selected upstream and downstream 
boundaries that would avoid including highly degraded areas that are 
not likely restorable, areas that were permanently dewatered or 
permanently developed (i.e., natural vegetation removed), or areas in 
which there was some other indication that suitable habitat no longer 
existed and was not likely to be restored. Larger critical habitat 
units with more stream reaches of unsuitable or low-quality habitat 
that is not likely restorable would not provide additional benefit to 
the jumping mouse and do not meet the definition of critical habitat. 
In the Criteria Used To Identify Critical

[[Page 14272]]

Habitat section, below, we used the best scientific and commercial data 
available to set out the criteria for identifying the areas that meet 
the requirements of the Act.

Comments From Federal Agencies

    (31) Comment: There is no clear definition of what constitutes 
occupied versus unoccupied habitat.
    Our Response: Occupied areas include the 29 locations where jumping 
mice were captured since 2005, plus a 0.8-km (0.5-mi) segment upstream 
and downstream of the capture localities. The 0.8-km (0.5-mi) segments 
have the potential to be occupied during the active season of the 
subspecies if a jumping mouse moves the maximum known distance beyond 
the protective herbaceous cover found within the 29 locations. We also 
include areas that are considered unoccupied, but are immediately 
adjacent to these occupied areas. These unoccupied areas are beyond 0.8 
km (0.5 mi) of the capture location and generally do not contain 
currently suitable habitat. These occupied and unoccupied areas 
immediately adjacent to each other comprise 19 of the 21 critical 
habitat units/subunits. These critical habitat units are labeled 
``partially occupied'' because they include both occupied and 
unoccupied areas. Finally, we included another two subunits that are 
completely unoccupied but are essential for the conservation of the 
jumping mouse. Inclusion of these unoccupied areas provides for 
expansion of the overall geographic distribution of the subspecies and 
increases the redundancy.
    (32) Comment: There is no clear distinction between suitable 
habitat and critical habitat. Consequently, if an area is not deemed to 
be essential for the conservation of the subspecies, is consultation 
still necessary?
    Our Response: Suitable habitat is a biological term used to 
describe the necessary habitat characteristics that support a species. 
For the jumping mouse, suitable habitat is composed of dense, 
herbaceous riparian vegetation with sufficient seasonally available or 
perennial flowing waters to support this vegetation as described in the 
``Specific Microhabitat Requirements'' section 2.4.1 of our SSA Report 
(Service 2014). Critical habitat is a regulatory term under the Act and 
means those areas occupied by the species at the time of listing on 
which are found those physical or biological features essential for the 
conservation of the species and may require special management, and 
those unoccupied areas that are essential for the conservation of the 
jumping mouse. Critical habitat is defined through rulemaking and may 
include areas that are and are not considered suitable habitat for the 
jumping mouse. Conversely, not all areas considered to be suitable 
jumping mouse habitat are included within a critical habitat 
designation.
    Section 7 of the Act requires any Federal agency to insure that any 
action authorized, funded, or carried out by such agency is not likely 
to jeopardize the continued existence of any endangered or threatened 
species or result in the destruction or adverse modification of 
critical habitat. If a Federal action may affect a listed species or 
its critical habitat, regardless of whether that habitat is currently 
suitable or not, the responsible Federal agency (action agency) must 
enter into consultation with us (50 CFR 402.14). 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.
    (33) Comment: Fire, flood, drought, and wild ungulates have always 
been forces influencing the dynamics of jumping mouse habitat.
    Our Response: The Service recognizes that these factors have likely 
always influenced jumping mouse habitat to some degree. However, 
because of historical, current, and future habitat loss, all of the 29 
populations found since 2005 occur within extremely small patches of 
suitable habitat and most likely contain very few jumping mice, 
resulting in low population resiliency. In addition, these multiple 
sources of habitat loss are not acting independently, but may produce 
cumulative impacts that magnify the effects of habitat loss on jumping 
mouse populations. Historically larger connected populations of jumping 
mice would have been able to withstand or recover from local stressors, 
such as habitat loss from drought, wildfire, or floods. However, the 
current condition of the remaining small populations means the 
likelihood of local extirpations is higher. See the discussion of these 
in section 5.0 ``Stressors and Sources'' in the SSA Report (Service 
2014).

Comments From States

    (34) Comment: Please define the phrase appropriately sized patches 
of suitable habitat, which is first mentioned under the Physical and 
Biological Features section.
    Our Response: Appropriately sized patches of suitable habitat 
surrounding each jumping mouse population should be 27.5 to 73.2 ha (68 
to 181 ac) along 9 to 24 km (5.6 to 15 mi) of flowing streams, ditches, 
or canals. The minimum area needed is given as a range due to the 
uncertainty of an absolute minimum and because local conditions within 
drainages vary.
    (35) Comment: In Arizona, many areas where the jumping mouse occurs 
are also visited by anglers, and the critical habitat designation could 
impact the public's fishing opportunities.
    Our Response: We do not expect impacts to anglers from the 
designation of critical habitat. The designation of critical habitat 
does not affect land ownership or establish a refuge, wilderness, 
reserve, preserve, or other conservation area. 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. 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. If 
there is not a Federal nexus for activities taking place on private or 
State lands, then critical habitat designation does not restrict any 
actions that destroy or adversely modify critical habitat. Although 
expected to be rare, where recreational fishing may have a Federal 
nexus within the critical habitat designation for jumping mouse, the 
agency will be required to consult with Service to ensure its actions 
will not destroy or adversely modify critical habitat.
    Where the habitat in question is occupied by the listed species, if 
there is a Federal nexus, the action agency already consults with the 
Service to ensure its actions will not jeopardize the continued 
existence of the species. If critical habitat may be adversely modified 
or destroyed, then this would also be included in the consultation. If 
the action was found likely to jeopardize the species or destroy or 
adversely modify critical habitat, the Service is required, to the 
extent feasible, to provide reasonable and prudent alternatives (RPAs) 
that would allow the action to proceed and comply with section 7(a)(2) 
of the Act. Any RPA must be technologically and economically feasible, 
must allow for the intended purpose of the action to be met, must avoid 
jeopardy or adverse modification, and must be within the authority of 
the action agency to implement. In our experience, in the vast majority 
of cases, the Service is able

[[Page 14273]]

to work with the action agency to successfully provide RPAs.
    (36) Comment: The Service provides no specific information in the 
proposed rule regarding the need to designate critical habitat in New 
Mexico, including the middle Rio Grande, Pecos, and Canadian River 
basins.
    Our Response: Section 4 of the Act, and its implementing 
regulations, require that, to the maximum extent prudent and 
determinable, the Secretary designate critical habitat at the time the 
species is determined to be an endangered or threatened species, using 
the best scientific and commercial data available at the time. In our 
proposed rule (78 FR 37328; June 20, 2013), we found critical habitat 
to be both prudent and determinable and are therefore required to 
designate critical habitat under the Act.
    (37) Comment: There is no scientific basis for extending the 
upstream and downstream boundaries by 0.8 km (0.5 mi) of capture 
locations to include areas that could be potentially used by the 
jumping mouse.
    Our Response: We have used the best available scientific and 
commercial data regarding movement and dispersal of the jumping mouse. 
The 0.8-km (0.5-mi) segments are considered occupied because the 
maximum distance travelled between two successive points by all radio-
collared jumping mice on Bosque del Apache NWR was approximately 0.74 
km (0.46 mi) (Frey and Wright 2012, pp. 16, 109, Figure 9). See section 
2.6 ``Movements and Home Range'' in the SSA Report (Service 2014) for 
additional information.
    (38) Comment: The Service should exclude proposed jumping mouse 
critical habitat from the Rio Grande, New Mexico (Unit 6-Middle Rio 
Grande) because of the Middle Rio Grande Endangered Species 
Collaborative Program that provides benefits to endangered species and 
their habitats, including the jumping mouse.
    Our Response: Section 4(b)(2) of the Act states that the Secretary 
shall designate and make revisions to critical habitat on the basis of 
the best available scientific data after taking into consideration the 
economic impact, national security impact, and any other relevant 
impact of specifying any particular area as critical habitat. The 
Secretary may exclude an area from critical habitat if he determines 
that the benefits of such exclusion outweigh the benefits of specifying 
such area as part of the critical habitat, unless 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. When identifying the benefits 
of exclusion, we consider, among other things, whether exclusion of a 
specific area is likely to result in conservation; 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. See Consideration of 
Impacts under Section 4(b)(2) of the Act, below, for more information.
    In our proposed rule, we did not consider excluding critical 
habitat within Unit 6 based on the Middle Rio Grande Endangered Species 
Collaborative Program because this entity does not own or manage lands 
within critical habitat. While the Service recognizes the contributions 
to species conservation made by the Middle Rio Grande Endangered 
Species Collaborative Program, without lands under their authority 
which they could manage for listed species, we did not consider 
exclusion based on this program.
    (39) Comment: The Service claims that all unoccupied areas contain 
flowing water. This is an error. Surveys conducted by the Arizona Game 
and Fish Department in 2011 found Centerfire Creek (Subunit 5F) had 
little water and was underground in some areas with only standing 
pools.
    Our Response: In the Unit Descriptions section of the proposed 
rule, we do state that all of the completely or partially unoccupied 
units and subunits currently have flowing water to allow for future 
restoration of the essential PCEs 1 and 2. However, in the Physical or 
Biological Features section of the proposed rule, we clarify that 
suitable habitat is found only when wetland vegetation achieves full 
growth potential associated with seasonally perennial (persistent water 
during the vegetation growing season) flowing water and saturated 
soils. In the Primary Constituent Elements section of the proposed 
rule, we provide further clarification of seasonally perennial flowing 
water as that which provides saturated soils throughout the jumping 
mouse's active season that supports tall (average stubble height of 
herbaceous vegetation of at least 69 centimeters (cm) (27 inches); in 
this final rule, we have changed that to average stubble height of 
herbaceous vegetation of at least 61 cm (24 inches)) and dense 
herbaceous riparian vegetation composed primarily of sedges (Carex 
spp.) and forbs. In the proposed rule (78 FR 37328; June 20, 2013) and 
the SSA Report (Service 2014), we explain that jumping mouse habitat is 
subject to dynamic changes that result from flooding and drying of 
these waterways and the ensuing fluctuations (loss and regrowth) in the 
quantity and location of dense riparian herbaceous vegetation over 
time, particularly in response to the ongoing drought. Southwestern 
riparian and aquatic systems fluctuate due to seasonal and longer-term 
drought and wet periods, floods, and wildfire. We have updated this 
final rule and the SSA Report to clarify that flowing water includes 
seasonally perennial (persistent water during the vegetation growing 
season) flowing water.
    (40) Comment: There is too much emphasis placed on the benefits of 
the American beaver, while ignoring other species such as elk, native 
fish, mountain lions, bears, and owls.
    Our Response: More than any other species, the management and 
restoration of beaver is an important component of jumping mouse 
conservation. The jumping mouse is often associated with beaver 
activity because the shallow, slow-moving water from dams and ponds 
behind beaver dams creates diverse wetland communities that support the 
required dense riparian herbaceous vegetation for jumping mice (Frey 
2006d, p. 52; Frey and Malaney 2009, p. 37). The diverse wetland plant 
species found in beaver-modified habitat patches may contribute as much 
as 25 percent of the total herbaceous plant species richness of 
riparian zones (Wright et al. 2002, p. 99). Beavers can also have a 
substantial impact on the structure and productivity of riparian areas 
through the cutting of trees and shrubs, which assist a stream in its 
ability to resist and recover from disturbance (Naiman et al. 1988, 
entire). This may contribute to the maintenance of riparian communities 
in an early seral (phase of ecological succession advancing towards 
climax) stage with sparse tree and shrub canopy cover where the 
sunlight can penetrate, thereby providing a dense herbaceous

[[Page 14274]]

understory that is suitable habitat for the jumping mouse.
    Beaver activities help to expand areas of shallow ground water and 
hydrophytic (growing wholly or partially in water) vegetation, and 
generally create a more heterogeneous floodplain by frequently 
converting streams from intermittent flow to perennial flow (Baker and 
Hill 2003, p. 299). This can create natural fire breaks and provide 
refugia from fire effects, especially where beaver activity results in 
extensive areas of marsh, wetland, and open water habitats, such as 
those conditions found within or adjacent to jumping mouse habitat. 
Because beaver populations have been reduced in many areas throughout 
the range of the jumping mouse, the corresponding loss of wetland 
habitats and perennial stream flow has contributed to drying and 
increased flammability of riparian vegetation.
    (41) Comment: Colorado Parks and Wildlife encourages the Service to 
invest additional resources in public outreach for Unit 7 along the 
Florida River.
    Our Response: We invested additional resources in public outreach 
along Unit 7. Although we received no requests for public hearings on 
the proposed designation, we held informational meetings to address 
public concerns regarding Unit 7 on August 15, 2013, and on April 24, 
2014, in Durango, Colorado.
    (42) Comment: The conclusions drawn in the critical habitat 
proposal lack robust experimental study designs and are best 
characterized as conjecture. How is it possible to develop habitat 
preferences for a species that is difficult to survey?
    Our Response: We agree that it would be useful to have more 
information on the jumping mouse, but it is often the case that robust 
biological information is lacking for rare species. Section 4 of the 
Act, and its implementing regulations, require that, to the maximum 
extent prudent and determinable, the Secretary designate critical 
habitat at the time the species is determined to be an endangered or 
threatened species, using the best scientific and commercial data 
available at the time. We reviewed the best available scientific 
information pertaining to the biological needs of the jumping mouse and 
habitat characteristics where this subspecies is located. We sought 
comments from independent peer reviewers to ensure that our designation 
is based on scientifically sound data, assumptions, and analysis. We 
also solicited information from the general public, nongovernmental 
conservation organizations, State and Federal agencies that are 
familiar with the subspecies and its habitat, academic institutions, 
and groups and individuals that might have information that would 
contribute to an update of our knowledge of the subspecies, as well as 
information on the activities and natural processes that might be 
contributing to the decline of the subspecies. The best available 
scientific and commercial data, as stated in the ``Specific 
Microhabitat Requirements'' section of the SSA Report (Service 2014), 
indicates the jumping mouse has exceptionally specialized habitat 
requirements that include dense herbaceous riparian habitat with 
sufficient seasonally available or perennial flowing waters to support 
this vegetation.
    (43) Comment: What impact will this critical habitat designation 
have on the ability of Federal agencies to conduct meaningful forest 
restoration projects?
    Our Response: 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 obligation of the Federal action 
agency under section 7(a)(2) of the Act is not to restore or recover 
the species, but to implement reasonable and prudent alternatives to 
avoid destruction or adverse modification of critical habitat. It is 
unlikely that designating critical habitat for the jumping mouse will 
reduce proactive treatments necessary for forest restoration projects 
(i.e., to alleviate the risk of catastrophic wildfire) because the 
majority of treatments are likely to be confined to forested uplands 
and not within riparian and adjacent upland habitat used by the jumping 
mouse. As an example, in 2015, when the Service completed a 
consultation on 110,000 acres for the Southwest Jemez Mountains 
Restoration Project on the Santa Fe National Forest in New Mexico, no 
forest restoration treatments were curtailed from the proposed jumping 
mouse critical habitat (Service 2015). However, the Forest Service or 
other Federal agencies will need to determine whether their Federal 
action (i.e., fuels treatments) may affect a listed species or 
designated critical habitat in accordance with section 7 of the Act. 
During consultation, the Service works with the Federal agencies on 
their project description to avoid impacts to the species or critical 
habitat. If the action is likely to adversely modify critical habitat, 
reasonable and prudent alternatives to the project description would be 
established, which could be implemented in a manner consistent with the 
intended purpose of the action, that can be implemented consistent with 
the scope of the Federal agency's legal authority and jurisdiction, 
that is economically and technologically feasible, and that the 
Director believes would avoid the likelihood of jeopardizing the 
continued existence of the listed species or resulting in the 
destruction or adverse modification of critical habitat. Each 
consultation is evaluated on a case-by-case basis following our 
regulations (50 CFR part 402).
    (44) Comment: Why are locations where the jumping mouse has likely 
been extirpated from impacts due to wildland fire considered as 
occupied?
    Our Response: We are required to use the best available scientific 
and commercial data for the designation of critical habitat. In our 
designation, occupancy was determined based on any detections during 
surveys conducted since 2005. Recent surveys (surveys conducted since 
2005) have relied on detection or non-detection (presence or absence) 
data to determine whether jumping mice persist in areas that contained 
historical populations or areas that currently contain suitable 
habitat. As stated in the SSA Report (Service 2014), of the 29 
populations where the New Mexico meadow jumping mice have been found 
extant since 2005, at least 11 populations have been substantially 
compromised in the past 2 years and seven others may have been affected 
by recent wildfires. We recognize that it is possible that the jumping 
mouse could be extirpated from these areas, but the most recent survey 
data available indicate that these 29 areas are occupied. Further, at 
the time of listing, these areas contained the physical or biological 
features essential to the conservation of the subspecies.
    (45) Comment: PCE 3 includes sufficient areas that contain suitable 
or restorable habitat. Habitat that is in need of restoration should 
not be designated as critical habitat.
    Our Response: Jumping mouse populations are currently small and 
isolated from one another, and the survival and recovery of the 
subspecies will require expanding the size of currently occupied areas 
containing suitable habitat into currently unoccupied areas that may 
need to reestablish suitable conditions. Currently occupied areas were 
not deemed sufficient to provide for resiliency and representation for 
viability. In the SSA Report (Service 2014), we estimate that resilient

[[Page 14275]]

populations of jumping mice need connected areas of suitable habitat in 
the range of at least 27.5 to 73.2 ha (68 to 181 ac), along 9 to 24 km 
(5.6 to 15 mi) of flowing streams, ditches, or canals (Service 2014a, 
p. 32). 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 subspecies at the time it is listed 
(i.e., unoccupied), upon a determination that such areas are essential 
for the conservation of the subspecies.
    (46) Comment: The premise that any and all livestock grazing is 
incompatible with jumping mouse habitat is not scientifically 
defensible. Properly managed livestock grazing can provide ecological 
benefits to riparian and upland areas.
    Our Response: Whether livestock grazing results in loss of suitable 
habitat and adverse effects to a jumping mouse population is likely 
dependent upon a number of factors including, but not limited to: The 
number of livestock present; the proportion of suitable habitat patch 
subjected to grazing; whether grazing occurs during the growing season; 
precipitation patterns; and the amount of isolation from other patches 
of suitable habitat. Morrison (1990, p. 142) found that moderate levels 
of livestock grazing may be compatible with the jumping mouse; however, 
Morrison (1990a, p. 1; 1990, p. 142; 1991, pp. 16-18) also concluded 
that, compared to other forms of habitat loss, grazing has the greatest 
potential for negative impacts on the jumping mouse and riparian 
habitat. Frey (2006b, p. 57) found that when livestock grazing is 
present for short periods of time (such as a few hours or days because 
of unauthorized use when cattle enter livestock exclosures), population 
abundance of jumping mice may be reduced, but is not extirpated.
    However, most livestock grazing is likely to be incompatible with 
the persistence of jumping mouse populations because of the subspecies' 
sensitivity to habitat disturbance (Frey 2006b, p. 57). Although 
livestock grazing can be managed in many different ways, the best 
available scientific and commercial data indicate that the jumping 
mouse does not persist in areas when its habitat is subjected to heavy 
grazing pressure (Morrison 1985, p. 31; Frey 2005a, entire; 2005b, p. 
2; 2011, entire). Livestock grazing can cause a rapid loss of 
herbaceous cover and eliminate dense riparian herbaceous vegetation 
that is suitable jumping mouse habitat in less than 60 days (Frey 
2005a, p. 60; 2007b, pp. 16-17; 2011, p. 43, Figure 16), and possibly 
even as short as 7 days (Morrison 1989, p. 20). Widespread and 
intensive livestock grazing, leading to a reduction of tall dense 
riparian herbaceous vegetation, has been detrimental for the jumping 
mouse because the quality and quantity of occupied habitats containing 
suitable habitat have been reduced or eliminated (Frey 2003, pp. 10-14; 
2005a, pp. 15-40; 2006d, pp. 10-33; 2011, entire; 2012a, pp. 42, 46, 
52; Service 2012c, pp. 1, 6-8, Figure 13). In addition, livestock and 
elk grazing within jumping mouse habitat affects individual mice by 
reducing the availability of food resources (Morrison 1987, p. 25; 
Morrison 1990, p. 141; Frey 2005a, p. 59; 2011, p. 70). Current grazing 
practices in many areas have resulted in the removal of dense riparian 
herbaceous vegetation that historically provided jumping mouse habitat 
and caused the loss of historical populations. There is a strong 
tendency for livestock to congregate in riparian habitat (Forest 
Service 2006, pp. 76-77). Frey and Malaney (2009, p. 38) suggests that 
maintenance of suitable riparian habitat and long-term viability of 
jumping mouse populations might only be possible through creation of 
refugial areas by complete exclusion of livestock from the riparian 
zone. Please see the SSA Report (Service 2014) for further information.
    (47) Comment: What areas proposed for critical habitat designation 
have privately owned water rights associated with grazing allotments, 
water diversions, or irrigation? If private landowners are going to be 
excluded from using these waters, the Service must complete a takings 
implications assessment.
    Our Response: We did not conduct an analysis of privately owned 
water rights because it is beyond the scope of the environmental 
assessment and economic analysis. Nevertheless, the economic analysis 
found that no significant economic impacts are likely to result from 
the designation of critical habitat for the jumping mouse. As the Act's 
critical habitat protection requirements apply only to Federal agency 
actions, few conflicts between critical habitat and private property 
rights should result from this designation. In accordance with E.O. 
12630 (Government Actions and Interference with Constitutionally 
Protected Private Property Rights), we have analyzed the potential 
takings implications of designating critical habitat for the jumping 
mouse in a takings implications assessment. The designation of critical 
habitat affects only Federal actions. Although private parties that 
receive Federal funding or assistance or 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.
    (48) Comment: What specific recreational uses cause degradation or 
destruction of riparian habitat?
    Our Response: Unregulated dispersed recreational activities, such 
as camping, fishing, and off-road vehicle use, pose a concern to the 
jumping mouse because the development of trails, the development of 
barren areas, and trampling can render habitat unsuitable by reducing 
or removing dense riparian herbaceous vegetation containing required 
microhabitat (see section 2.4.1 ``Specific Microhabitat Requirements'' 
in the SSA Report (Service 2014)). The development of streamside trails 
and large, bare, compacted areas used for camping and fishing has been 
and continues to be reported throughout jumping mouse habitat in areas 
of the Jemez Mountains, New Mexico, and the White Mountains, Arizona 
(Frey 2005a, pp. 27-28; 2011, pp. 70-71, 76, 88, Figure 30). See 
section 5.1.10 ``Recreation'' in the SSA Report (Service 2014) for 
additional details.
    (49) Comment: The proposed rule states that critical habitat does 
not include manmade structures (such as buildings, fire lookout 
stations, runways, roads, and other paved areas) and the land on which 
they are located; however, some proposed stream reaches, such as the 
East Fork of the Black River, include developed campgrounds. These 
areas should be removed from the final critical habitat designation.
    Our Response: We determined that developed campgrounds or other 
manmade structures (such as buildings, fire lookout stations, runways, 
roads, and other paved areas) within the boundaries of critical habitat 
do not contain physical or biological features essential for the 
conservation of the subspecies. We have made every effort to remove 
these developed areas where possible; however, due to the scale of the 
maps, some areas may inadvertently be included. Developed areas are not 
reasonably believed to contain, or are capable of supporting, the 
physical or biological features essential for jumping mouse 
conservation. Therefore, a Federal action involving these developed 
lands will not trigger section 7 consultation with respect to critical 
habitat and the requirement of no adverse modification, unless the 
specific action would directly or

[[Page 14276]]

indirectly affect the physical or biological features in the adjacent 
critical habitat.
    (50) Comment: What information does the Service have that indicates 
specific ecological characteristics are currently present or capable of 
being restored within the proposed critical habitat? The Service should 
analyze the Forest Service's Terrestrial Ecological Unit data prior to 
designating critical habitat.
    Our Response: Each unit and subunit was evaluated on a site-by-site 
basis to determine the best configuration of critical habitat to 
support jumping mouse populations in that unit or subunit. The 
information we relied upon is presented in the SSA Report (see section 
4.6 ``Subspecies Conditions Compared to Needs by Geographic Management 
Area'' in the SSA Report (Service 2014)). The critical habitat units 
were first delineated by creating rough areas by screen-digitizing 
polygons (map units) using Google Earth. We then digitized and refined 
the units using ArcMap version 10 (Environmental Systems Research 
Institute, Inc.), a computer Geographic Information System (GIS) 
program. The polygons were finalized by using current (2005 to 2014) 
and historical (1985 to 1996) subspecies location points, which were 
then used in conjunction with hydrology, vegetation, and expert opinion 
to propose and then finalize the designation. The Forest Service's 
Terrestrial Ecological Unit data are a GIS coverage of mapped units of 
land that provide an inventory of various ecotypes on the National 
Forest. Current vegetative conditions are often used to delineate these 
ecological map units; however, existing vegetation does not always 
reflect historical or potential vegetation. Consequently, we did not 
use this information.
    (51) Comment: How many riparian areas associated with the critical 
habitat proposal are classified as being in proper functioning 
condition by the Forest Service?
    Our Response: Proper functioning condition is a qualitative 
assessment method developed by the Bureau of Land Management (BLM) and 
Forest Service to assess the condition of riparian wetland areas based 
on hydrology, vegetation, and erosion or deposition (soils) attributes. 
Although this analysis may be used to inform management prescriptions, 
develop environmental assessments, or inform resource management plans, 
the frequency of most proper functioning condition analyses are 
sporadic in time and space. As a result, we found the best available 
information for designation of critical habitat for the jumping mouse 
was based on site-specific data and our knowledge of the corresponding 
units as described in the SSA Report (Service 2014) and this final 
rule.

Comments From Tribes

    (52) Comment: The land proposed as critical habitat in Unit 7 
(Florida River) is within the boundary of the Southern Ute Indian 
Reservation and should be indicated accordingly on the map.
    Our Response: We verified, using the most current land ownership 
information in GIS, that Unit 7 does not include any lands within the 
Southern Ute Indian Reservation.
    (53) Comment: During the public comment period, we received 
comments from Isleta Pueblo and Ohkay Owingeh expressing their view 
that they were opposed to the designation of critical habitat and that 
exclusion of their lands is warranted due to tribal self-governance and 
continuing our cooperative working relationships.
    Our Response: Subunits 6A and 6B are excluded from this final 
designation under section 4(b)(2) of the Act. We have determined that 
the benefits of exclusion outweigh the benefits of inclusion and have, 
therefore, excluded these areas from this final critical habitat 
designation. See Consideration of Impacts under Section 4(b)(2) of the 
Act, below, for further discussion.
    (54) Comment: The San Carlos Apache Tribe does not support 
designation of critical habitat on their reservation.
    Our Response: We did not propose, nor do we designate, any lands as 
critical habitat on the San Carlos Apache Reservation.

Comments From the Public

    (55) Comment: It is premature to designate critical habitat for the 
jumping mouse when it is not even listed as an endangered species.
    Our Response: Section 4(a)(3) of the Act, as amended, and 
implementing regulations (50 CFR 424.12), require that, to the maximum 
extent prudent and determinable, the Secretary designate critical 
habitat at the time the species is determined to be endangered or 
threatened. The jumping mouse was listed as endangered on June 10, 2014 
(79 FR 33119).
    (56) Comment: The SSA Report was not published in the Federal 
Register, even though it was the primary document on the biology and 
habitat of the subspecies.
    Our Response: We made the SSA Report publically available 
throughout our consideration of critical habitat for the subspecies via 
the Federal eRulemaking Portal: http://www.regulations.gov. We are not 
required to publish the SSA Report and other supporting documents in 
the Federal Register, but must make all comments, materials, and 
documentation that we considered in developing this rulemaking publicly 
available. The June 20, 2013, proposed listing and critical habitat 
rules (78 FR 37363 and 78 FR 37328, respectively) provided notification 
that the SSA Report was available on http://www.regulations.gov and 
that we were requesting comments on the proposed rule and associated 
documents, including the SSA Report. The final listing rule (79 FR 
33119; June 10, 2014) also provided notification that the SSA Report 
was available on http://www.regulations.gov.
    (57) Comment: The fencing of riparian areas to allow only wildlife 
to access the water is illegal and represents an unconstitutional 
taking of private property water rights in violation of the Fifth 
Amendment of the U.S. Constitution.
    Our Response: The Service has not fenced any areas for the 
protection of the jumping mouse or its habitat, nor are we proposing 
any fencing, on private lands. We conducted an economic analysis, an 
environmental assessment to comply with National Environmental Policy 
Act (NEPA; 42 U.S.C. 4321 et seq.), and a takings implications 
assessment. Full details can be found in the Required Determinations 
section, below.
    (58) Comment: The Service failed to hold any meetings with grazing 
permittees.
    Our Response: We did not hold any formal public hearings because we 
did not receive any requests to do so. However, we did receive requests 
for informational meetings. Consequently, to address concerns related 
to the proposed critical habitat, we held informational meetings on 
August 15, 2013, in Durango, Colorado. Similarly, we held informational 
meetings in Ca[ntilde]on, New Mexico, on April 24, 2014; in Durango, 
Colorado, on April 24, 2014; and in Alamogordo, New Mexico, on May 28, 
2014.
    (59) Comment: The Service did not coordinate with the respective 
counties in each State regarding the proposed designation.
    Our Response: We mailed notices to all County Commissioners within 
the proposed designation regarding the proposed rule. We also notified 
all County Commissioners within the proposed critical habitat 
designation of the draft environmental assessment and draft economic 
analysis. Further, we

[[Page 14277]]

published a legal notice inviting the general public to comment on the 
proposed rule in the Albuquerque Journal on June 27, 2013. We also held 
several informational meetings, as noted in our response to Comment 58, 
above.
    (60) Comment: Designation of critical habitat has yielded very poor 
results in terms of recovery for the majority of listed species.
    Our Response: Section 4(a)(3) of the Act, and implementing 
regulations (50 CFR 424.12), require that, to the maximum extent 
prudent and determinable, the Secretary designate critical habitat at 
the time the species is determined to be endangered or threatened. The 
jumping mouse was listed as endangered on June 10, 2014 (79 FR 33119). 
We found the designation of critical habitat to be prudent and 
determinable in our proposed critical habitat rule (78 FR 37328; June 
20, 2013), and we are therefore required to designate critical habitat 
under the Act.
    (61) Comment: Will New Mexico Department of Game and Fish be 
mandated to remove elk to minimize grazing impacts on the critical 
habitat?
    Our Response: No. The designation of critical habitat does not 
impose grazing requirements or restrictions. 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. Such 
designation does not require implementation of restoration, recovery, 
or enhancement measures by non-Federal landowners. Where a State 
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. See our response to Comment 35, above.
    (62) Comment: Does the Endangered Species Act abrogate the Treaty 
of Guadalupe Hildalgo?
    Our Response: No. The Treaty of Guadalupe Hidalgo resulted in 
grants of land made by the Mexican government in territories previously 
appertaining to Mexico, and remaining for the future within the limits 
of the United States. These grants of land were respected as valid, to 
the same extent that the same grants would have been valid within the 
territories if the grants of land had remained within the limits of 
Mexico.
    The designation of critical habitat has no impact on non-Federal 
actions taken on private land (e.g., land grants), unless those 
activities involve Federal lands, Federal funding, a Federal permit 
(e.g., grazing permits), or other Federal action. If such a Federal 
nexus exists and the action affects the designated critical habitat, we 
will review the action under section 7 of the Act with the appropriate 
Federal agency. In these cases, a Federal agency action that may affect 
the listed species or its designated critical habitat would be required 
to consult with the Service to ensure that their action does not 
jeopardize the continued existence of the species, and if critical 
habitat is designated, to ensure that their action is not likely to 
destroy or adversely modify critical habitat. Therefore, we do not 
believe that designation of critical habitat for the jumping mouse 
abrogates any treaty of the United States, including the Treaty of 
Guadalupe Hidalgo.
    (63) Comment: There is no evaluation of conservation easements or 
whether private lands are subject to county land use restrictions that 
would prevent the threat of development. This indicates that the 
Service has not made the required findings under the Act of designating 
only ``determinable'' critical habitat. The Service should forgo 
designating private lands and work with landowners on a voluntary 
basis.
    Our Response: The Service recognizes the vital importance of 
voluntary, nonregulatory conservation measures in achieving the 
recovery of endangered species. However, we found no conservation 
easements or State, Federal, or local regulations that might provide 
some protection to the jumping mouse or its habitat (see section 5.3 
``Protective Regulations'' in the SSA Report (Service 2014)). 
Therefore, we are unaware of any protective regulations to prevent 
ongoing losses of jumping mouse habitat or are unlikely to prevent 
further future declines of the subspecies, which is why the species is 
currently listed as endangered.
    In regards to county land use restrictions, 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 require implementation of 
restoration, recovery, or enhancement measures by non-Federal 
landowners. If there is not a Federal nexus for activities taking place 
on private or State lands, then critical habitat designation does not 
restrict any actions that destroy or adversely modify critical habitat.
    Section 4(a)(3)(A) of the Act, and implementing regulations (50 CFR 
424.12), require us to designate critical habitat to the maximum extent 
prudent and determinable. Regulations at 50 CFR 424.12(a)(2) state that 
critical habitat is not determinable when one or both of the following 
exist: (1) Information sufficient to perform required analyses of the 
impacts of the designation is lacking, or (2) the biological needs of 
the subspecies are not sufficiently well known to permit identification 
of an area as critical habitat. We found in our June 20, 2013 (78 FR 
37328), proposed rule to designate critical habitat that the biological 
needs of the subspecies and habitat characteristics where this 
subspecies is located are sufficiently well known. Further, we 
conducted an economic analysis, an environmental assessment to comply 
with NEPA, and a takings implications assessment to assess the impacts 
of the designation. This and other information represent the best 
scientific and commercial data available and led us to conclude that 
the designation of critical habitat is prudent and determinable for the 
jumping mouse. Therefore, we are required to designate critical habitat 
for this subspecies to fulfill our legal and statutory obligations.
    (64) Comment: Given the misperceptions of the impact of the Act, 
and possible intentional damage to jumping mouse habitat on public land 
by livestock grazing interests, we suggest the Service consider the 
economic impacts and benefits of a voluntary grazing permit retirement 
program as a viable solution to land-use conflicts impacting this and 
other imperiled species.
    Our Response: We did not conduct an analysis of a voluntary grazing 
permit retirement program. Because we do not anticipate that this 
designation will result in a voluntary grazing permit retirement 
program, it is beyond the scope of the environmental assessment and 
economic analysis.
    (65) Comment: The Service should exclude the area proposed as 
critical habitat in Unit 7 because it would have significant economic 
impacts. The Service should also exclude lands owned by the Arizona 
Game and Fish Department in Unit 5.
    Our Response: We have not excluded Unit 7 or Unit 5 from designated 
critical habitat. The Service is not aware of any conservation plans 
for Unit 7 or Unit 5.

[[Page 14278]]

Further, our economic analysis did not find any incremental costs for 
grazing in Unit 7 and estimated only $5,000 for additional 
administrative costs for consultation on the operations of the Lemon 
Dam in Unit 7, the only other possible incremental cost. The economic 
analysis estimated $9,940,000 of incremental costs for grazing and all 
other consultation activities in Unit 5 that would only be associated 
with Forest Service lands and no lands owned by the Arizona Game and 
Fish Department. Our environmental assessment did not find significant 
impacts to the human environment. In addition, we are not aware of any 
national security impacts or any other relevant impacts of the 
designation of critical habitat. Consequently, neither Unit 7 nor Unit 
5 were excluded from this designation under section 4(b)(2) of the Act. 
The commenters did not provide any additional information for the 
Service to consider. See Consideration of Impacts under Section 4(b)(2) 
of the Act, below, for additional information.
    (66) Comment: One commenter requested that the upstream extent of 
critical habitat in Unit 7 should be moved farther downstream, as the 
Florida Ditch's main headgate is regularly maintained and does not 
currently, nor will it in the future, contain PCEs.
    Our Response: We reviewed photographs provided by the commenter, as 
well as imagery from Google Earth, and we agree that this segment at 
the proposed upstream boundary of Unit 7 does not contain the physical 
and biological features essential to the conservation of the jumping 
mouse. It is unoccupied, and is not likely to provide habitat in the 
future. Therefore, we removed this area from this final critical 
habitat designation by moving the upstream extent of designated 
critical habitat along the Florida River 68.6 m (225 ft) downstream of 
the Florida Ditch's main headgate (see the Summary of Changes from the 
Proposed Rule section, below). We determined that the area around 
Florida Ditch's main headgate is unsuitable for the jumping mouse 
because it is frequently devoid of vegetation and contains irrigation 
diversion structure, creating unsuitable conditions.
    (67) Comment: Populations of the jumping mouse along the Florida 
River have been supported by existing land uses without regulatory 
intervention. Consequently, the Service cannot demonstrate any benefits 
from the proposed designation of Unit 7 that is predominately composed 
of private lands, indicating that the designation would be ``prudent.''
    Our Response: Regulations at 50 CFR 424.12(a)(1) state that the 
designation of critical habitat is not prudent when one or both of the 
following situations exist: (1) The species is threatened by taking or 
other activity and the identification of critical habitat can be 
expected to increase the degree of threat to the species; or (2) the 
designation of critical habitat would not be beneficial to the species. 
We found in our June 20, 2013, proposed rule (78 FR 37328) that 
designation of critical habitat was prudent. There is no indication 
that the jumping mouse is threatened by collection, and there are no 
likely increases in the degree of threats to the subspecies if critical 
habitat is designated. This subspecies is not the target of collection, 
and the majority of the area we are designating in Unit 7 is privately 
owned with restricted public access. For these reasons, the designation 
of critical habitat is unlikely to increase the degree of threats to 
the jumping mouse.
    In the absence of finding that the designation of critical habitat 
would increase threats to a species, if there are any benefits to a 
critical habitat designation, then a prudent finding is warranted. The 
potential benefits of critical habitat to the jumping mouse include: 
(1) Protection under section 7(a)(2) 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 in 
unoccupied areas (for example, Federal agencies were not aware of the 
potential impacts of an action on the subspecies or, in this case, the 
majority of habitat along the Florida River that is unoccupied by the 
subspecies); (2) implementation of section 7(a)(1) of the Act by 
identifying areas where Federal agencies can focus their conservation 
programs and use their authorities to further the purposes of the Act; 
(3) identification of areas where other conservation partners, such as 
State and local governments, nongovernmental organizations, and 
individuals, can focus their conservation efforts; (4) provision of 
educational benefits to State or county governments, or private 
entities; (5) provision of early conservation planning guidance, to 
bridge the gap until the Service can complete more thorough recovery 
planning, because designation of critical habitat occurs near the time 
of listing; and (6) improvement of awareness to prevent people from 
causing inadvertent harm to the subspecies. Therefore, we found 
designation of critical habitat to be prudent (78 FR 37328; June 20, 
2013).
    (68) Comment: The Service did not explain how the general rationale 
provided justifies designating critical habitat in Units 7 and 8. There 
is no unit-specific analysis demonstrating that the enormous portion of 
unoccupied lands in Units 7 and 8 is ``essential to the conservation of 
the species'' and that limiting the designation to occupied areas 
``would be inadequate to ensure the conservation of the species.'' 
Therefore, the broad area proposed for these units is arbitrary and 
capricious.
    Our Response: As we presented in the SSA Report (Service 2014), the 
jumping mouse occurs within eight geographic management areas, which 
are defined by the external boundaries of the geographic distribution 
of historical populations. Each critical habitat unit is within one of 
the eight geographic management areas. Rangewide, we determined that 
the jumping mouse needs at least two resilient populations (where at 
least two existed historically) within each of eight identified 
geographic management areas (i.e., critical habitat units). This number 
and distribution of resilient populations is expected to provide the 
subspecies with the necessary redundancy and representation to provide 
for viability.
    Units 7 and 8 are considered partially occupied. Currently the 
jumping mouse is known only from one location within each of these 
geographic management areas (Units 7 and 8). Further, the current 
population in the occupied critical habitat units is represented by 
habitat patches that are undersized, isolated, and too small to be 
resilient. Consequently, unoccupied critical habitat is needed to allow 
for the expansion of the current population and for the establishment 
of new populations. These unoccupied areas are essential to the 
conservation of the jumping mouse because they contain current and 
restorable PCEs that will allow for the expansion of the existing 
populations and allow for the establishment of new populations. 
Therefore, unoccupied areas are included in the designation under 
section 3(5)(A)(ii) of the Act. Further description is provided in the 
SSA Report in sections 3.3 ``Rangewide Subspecies Needs'' and 4.2 
``Habitat Connectivity and Patch Sizes'' (Service 2014).
    (69) Comment: Examination of satellite imagery shows that the 100-m 
(330-ft) lateral extent of proposed critical habitat units contains a 
great deal of land in some areas that is under

[[Page 14279]]

cultivation, or otherwise does not contain riparian dense herbaceous 
vegetation, and does not have flowing water. Therefore, this larger 
area does not include any of the PCEs and should not be part of the 
designation. Alternatively, other commenters believed that the proposed 
100-m (330-ft) lateral extent of proposed critical habitat did not 
accurately reflect limits of the jumping mouse habitat and is likely to 
leave individual jumping mice or the entire subpopulation outside of 
critical habitat areas (e.g., Unit 6), seasonally or even permanently.
    Our Response: The Act defines critical habitat as (1) specific 
areas within the geographical area occupied by the [sub]species, at the 
time it is listed, on which are found those physical or biological 
features essential to the conservation of the [sub]species and which 
may require special management considerations or protection; and (2) 
specific areas outside the geographical area occupied by the 
[sub]species at the time it is listed, upon a determination that such 
areas are essential for the conservation of the [sub]species. The areas 
that are unoccupied at the time of listing are not required to contain 
the PCEs essential to conservation of the subspecies. However, all 
unoccupied areas we are designating as critical habitat have seasonally 
perennial flowing water with saturated soils and have the potential to 
be restored to suitable habitat, including the 100-m (330-ft) lateral 
extent that captures upland areas necessary for hibernation that are 
outside the regularly inundated floodplain.
    Areas used for hibernation likely do not include lands under 
cultivation, yet little research has been done on hibernacula 
(hibernation burrows) of the jumping mouse. It is assumed that they are 
similar to other subspecies of meadow jumping mouse. Preble's meadow 
jumping mice dig their own hibernation burrows and are solitary 
hibernators (Service 2003, p. 8). Only one hibernation nest has ever 
been observed for the New Mexico meadow jumping mouse (Wright and Frey 
2011, p. 3). The hibernaculum was below ground and beneath woody debris 
under a seep willow (Baccharis spp.) (Wright and Frey 2011, p. 8). The 
site was dry, with an absence of herbaceous vegetation, which was 
similar to maternal nest sites selected by females (Wright and Frey 
2011, pp. 8, 11; Frey and Wright 2012, p. 28).
    We acknowledge that some jumping mice may use areas outside of the 
mapped boundary of designated critical habitat. However, the best 
available scientific and commercial information indicates that a 100-m 
(330-ft) lateral extent of critical habitat in occupied areas contains 
the physical or biological features essential to the jumping mouse and 
in unoccupied areas is essential for the conservation of the subspecies 
(see our response to Comment 68, above). As stated in the SSA Report 
(Service 2014), individual jumping mice also need intact upland areas 
that are up-gradient and beyond the floodplain of rivers and streams 
and adjacent to riparian areas and wetlands because this is where they 
build nests or use burrows to give birth to young in the summer and to 
hibernate over the winter. Trainor et al. (2012, p. 433) found that 97 
percent of the normal daily movements and resource requirements of 
Preble's meadow jumping mice occurred within 110 m (361 ft) from the 
edge of streams; this includes areas outside of the immediate riparian 
zones. Extensive movements beyond this distance were limited to less 
than 3 percent of the home range sizes in Preble's meadow jumping mouse 
(Trainor et al. 2012, p. 433). We assume that regular use of these 
adjacent uplands areas would be similar with the jumping mouse. 
Therefore, we are designating the adjacent floodplain and upland areas 
extending approximately 100 m (330 ft) outward from the boundary 
between the active water channel and the floodplain (as defined by the 
bankfull stage of streams) or from the top edge of the ditch or canal.
    (70) Comment: The Service should investigate alternatives within 
proposed Subunit 6C (Unit 6 in this final rule) that would reduce or 
eliminate any additional water flow requirements at any of the points 
where the Middle Rio Grande Conservancy District delivers water to 
Bosque del Apache NWR. What are the specific flow requirements for 
critical habitat?
    Our Response: The designation of critical habitat does not impose 
water flow requirements or restrictions. 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. Our 
environmental assessment found that it is unlikely that section 7 
consultations will result in flow requirements solely for avoiding 
adverse modification of critical habitat because the flows would 
already be necessary for avoiding jeopardy to the jumping mouse in the 
occupied segments along each stream (Harris Environmental 2014, p. 63). 
In our economic analysis, we also found it is unlikely that critical 
habitat on Bosque del Apache NWR would generate additional requests for 
conservation efforts beyond what would be required due to the listing 
of the species because the subunit is partially occupied by the jumping 
mouse (IEc 2014, entire). Nevertheless, future section 7 consultations 
will evaluate whether proposed actions jeopardize the continued 
existence of the jumping mouse or adversely modify or destroy critical 
habitat.
    (71) Comment: The Service should exclude the subunits proposed as 
critical habitat in Unit 6 (Middle Rio Grande, New Mexico).
    Our Response: Section 4(b)(2) of the Act states that the Secretary 
may exclude areas from the final critical habitat after considering the 
economic impact, impact on national security, or any other relevant 
impact of the designation. In our June 20, 2013, proposed rule (78 FR 
37328), Unit 6 consisted of three subunits: 6A (Isleta Marsh), 6B 
(Ohkay Owingeh), and 6C (Bosque del Apache NWR). Proposed Subunits 6A 
and 6B are excluded from this final designation under section 4(b)(2) 
of the Act because the benefits of exclusion outweigh the benefits of 
including these areas as critical habitat. For more information, see 
Consideration of Impacts under Section 4(b)(2) of the Act, below. 
Proposed Subunit 6C, Bosque del Apache NWR, is occupied by the 
subspecies and is under Federal ownership. The Service's draft 4(b)(2) 
guidance states that we will generally not exclude Federal lands from 
critical habitat designation. Consequently, proposed Subunit 6C was not 
considered for exclusion in our proposed rule (78 FR 37328; June 20, 
2013), and is not excluded in this final rule. As a result, proposed 
Subunit 6C is renamed Unit 6 in this rule. The commenter did not 
provide any additional information for the Service to consider.
    (72) Comment: The Service should exclude proposed Subunit 3C (Rio 
de las Vacas, New Mexico) because it is unoccupied and there is no 
scientific basis for the designation.
    Our Response: We conclude that this area is essential to the 
conservation of the jumping mouse because: (1) The areas occupied by 
the jumping mouse since 2005 do not contain enough suitable, connected 
habitat to support resilient populations of jumping mouse; (2) the 
currently unoccupied segments within individual stream reaches or 
waterways need to be of sufficient size to allow for the expansion of 
populations and provide connectivity (active season movements and

[[Page 14280]]

dispersal) between multiple populations as they become established; (3) 
additional areas need habitat protection to allow restoration of the 
necessary herbaceous vegetation for possible future reintroductions; 
and (4) multiple local populations along streams are important to 
maintaining genetic diversity within the populations and for providing 
sources for recolonization if local populations are extirpated. 
Therefore, all of the partially occupied or completely unoccupied areas 
are included in the designation under section 3(5)(A)(ii) of the Act.
    The Service is not aware of any conservation plans for Subunit 3C. 
The economic analysis estimated $3,400,000 of incremental costs for 
grazing and all other consultation activities in Subunit 3C associated 
with Forest Service lands. Our environmental assessment did not find 
significant impacts to the human environment. In addition, we are not 
aware of any national security impacts or any other relevant impacts of 
the designation of critical habitat. Consequently, we did not exclude 
Subunit 3C from this designation. See Consideration of Impacts under 
Section 4(b)(2) of the Act, below. The commenter did not provide any 
additional information for the Service to consider.
    (73) Comment: Morrison (1990, entire) reported that grazing may be 
compatible with maintenance of jumping mouse populations. Moreover, in 
the environmental impact statement for the San Diego Range Allotment, 
the Forest Service found that maintaining 10 cm (4 in) of stubble 
height in grazed areas would not cause a trend toward Federal listing 
of the jumping mouse.
    Our Response: Morrison (1990, p. 142) found that moderate livestock 
grazing that is carefully monitored could be compatible. Unfortunately, 
little monitoring has occurred over the last few decades within jumping 
mouse habitat on National Forest lands. Morrison (1990, p. 142) also 
reported that livestock grazing had the highest potential for impacting 
streamside riparian vegetation and wet meadow habitat. See our response 
to Comment 46, above, about livestock grazing and the jumping mouse.
    We found that current forage utilization guidelines of the Forest 
Service have limited the availability of adequate vertical cover of 
herbaceous vegetation and significantly affected jumping mouse habitat 
in areas that are not protected from livestock (Forest Service 2013, 
entire; Frey 2005a, entire; 2007b, pp. 16-17; 2011, p. 43; Service 
2007, entire).
    We have no information that indicates that livestock grazing is 
likely to be reduced in the future or that areas adjacent to recently 
documented populations would be managed to provide suitable habitat for 
expansion of jumping mouse populations. Morrison (2014, p. 2) indicates 
that grazing is one of the most problematic factors affecting jumping 
mouse habitat and this issue must be addressed in conjunction with 
critical habitat and recovery of the subspecies. Consequently, the 
designation of critical habitat will ensure that livestock management 
practices authorized by Federal agencies are not conducted without 
required consultation.
    (74) Comment: The Service must identify specific areas or sections 
as critical habitat rather than long stretches of San Antonio Creek 
(Subunit 3A), Rio Cebolla (Subunit 3B), and Rio de las Vacas (Subunit 
3C).
    Our Response: When we conduct a critical habitat analysis, we use 
the best available scientific and commercial data to determine 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 for the conservation of 
the species which may require special management considerations or 
protection. We also analyze whether specific areas outside the 
geographical area occupied by a species at the time it is listed are 
essential for the conservation of the species. As stated in the 
proposed rule (78 FR 37328; June 20, 2013) and the SSA Report (Service 
2014), in considering the area needed for maintaining resilient 
populations of adequate size with the ability to endure adverse events 
(such as floods or wildfire), we estimate that resilient populations of 
jumping mice need connected areas of suitable habitat in the range of 
at least 27.5 to 73.2 ha (68 to 181 ac), along 9 to 24 km (5.6 to 15 
mi) of flowing streams, ditches, or canals. We selected upstream and 
downstream boundaries that would avoid including highly degraded areas 
that are not likely restorable, areas that were permanently dewatered 
or permanently developed (i.e., natural vegetation removed), or areas 
in which there was some other indication that suitable habitat no 
longer existed and was not likely to be restored. These unoccupied 
areas are essential to the conservation of the jumping mouse because 
they will allow for the expansion of the existing populations and allow 
for the establishment of new populations. See our responses to Comments 
1, 68, and 69, above, for additional information.
    (75) Comment: There is not enough information known on the 
biological needs of the jumping mouse to designate critical habitat, 
especially because almost nothing is known about the populations along 
the Florida River (Unit 7) and Sambrito Creek (Unit 8).
    Our Response: The Act requires us, to the maximum extent prudent 
and determinable, to designate critical habitat at the time the species 
is determined to be an endangered or threatened species based on the 
best scientific and commercial data available. It is often the case 
that biological information may be limited for rare species; however, 
we reviewed all available information and incorporated it into this 
final rule.
    (76) Comment: There are ongoing efforts by Colorado Parks and 
Wildlife to revitalize and enhance the wetlands of Sambrito Creek. 
Accordingly, section 7 consultation requirements for proposed Unit 8 
would impact the ability to complete the project in a timely matter and 
result in increased administrative and substantive costs.
    Our Response: Our understanding from Colorado Parks and Wildlife is 
that the project is complete and there were no increased administrative 
and substantive costs.
    (77) Comment: What dams, diversions, wells, and management 
activities involve a Federal nexus? What areas proposed as critical 
habitat have privately owned water rights associated with them?
    Our Response: Section 7(a)(2) of the Act requires 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 in unoccupied 
areas. The Service conducted outreach efforts to other Federal agencies 
and limited interviews with relevant stakeholders concerning the likely 
effects of critical habitat. The U.S. Army Corps of Engineers 
anticipated section 7 consultation for the rehabilitation of Lake 
Dorothey and Lake Alice in Unit 1 (partially occupied by the 
subspecies). In addition, the Service anticipates consulting on the 
operations of the Lemon Dam in Unit 7 (partially occupied by the 
subspecies), which is owned by the Bureau of Reclamation. Lastly, the 
Service anticipates the re-initiation of a programmatic consultation 
for water use and management activities on the Middle Rio Grande in 
Unit 6 (partially occupied by the subspecies) (Harris Environmental 
Inc., 2014, pp. 59-61;

[[Page 14281]]

IEc 2014, pp. 14-16). The Service did not receive any further 
information on water management structures. Per section 7 of the Act, 
it is the responsibility of the respective Federal agencies to 
determine whether any of their ongoing or proposed actions may affect 
jumping mouse critical habitat and to consult with the Service. We did 
not conduct an analysis of privately owned water rights because it is 
beyond the scope of the environmental assessment and economic analysis. 
Nevertheless, the economic analysis found that no significant economic 
impacts are likely to result from the designation of critical habitat 
for the jumping mouse. As the Act's critical habitat protection 
requirements apply only to Federal agency actions, few conflicts 
between critical habitat and private property rights should result from 
this designation.
    (78) Comment: Many private land inholdings are unfenced and managed 
as part of a grazing unit with Forest Service lands.
    Our Response: In these instances, the Forest Service will determine 
whether actions on private lands are interrelated or interdependent 
with the Federal permit authorizing grazing on public lands. If the 
action is interrelated or interdependent and may affect the listed 
species or its designated critical habitat, then section 7 consultation 
under the Act will be necessary.
    (79) Comment: The proposed critical habitat designation would 
conflict with Executive Order 13563 (Improving Regulation and 
Regulatory Review), which says that our regulatory system must protect 
public health, welfare, safety, and the environment, while promoting 
economic growth, innovation, competitiveness, and job creation.
    Our Response: We have developed this rule in a manner consistent 
with these requirements. See the Regulatory Planning and Review 
(Executive Orders 12866 and 13563) statement in this final rule, below.
    (80) Comment: It is impossible to maintain an average stubble 
height of greater than 61 cm (24 in) throughout the growing season 
because plants die back each year and because site potential or year-
to-year variability in growing conditions will preclude plants reaching 
this height every year.
    Our Response: The designation of critical habitat does not require 
management or maintenance of the PCEs, such as vegetation height. This 
suitable habitat, of average stubble height of greater than 61 cm (24 
in), is found only when wetland vegetation achieves full growth 
potential associated with seasonally perennial flowing water and moist 
soils.
    (81) Comment: At three locations along the East Fork of the Little 
Colorado River, Arizona, herbaceous riparian vegetation that was 
ungrazed did not average 61 cm (24 in) in height. Site potential and 
yearly variability in growing conditions will preclude plants achieving 
maximum expression of height on every site and in every year.
    Our Response: We acknowledge and agree that site potential and 
yearly growing conditions will influence the height of dense herbaceous 
riparian vegetation. The designation of critical habitat does not 
require the management or maintenance of the PCEs, such as vegetation 
height. 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 61, above, for additional 
information on section 7 consultation.
    (82) Comment: There is significant uncertainty and lack of 
scientific evidence demonstrating that the jumping mouse exists or 
existed in the Florida River, Colorado (Unit 7); therefore, critical 
habitat should not be designated there.
    Our Response: The best available scientific evidence confirms the 
existence of New Mexico meadow jumping mice from the Florida River, 
Colorado. Frey (2008c, pp. 36, 42, 44) verified three museum specimens 
(one from 1945 and two from 2007) from Florida River, La Plata County. 
Two of these jumping mice were captured from private property along the 
Florida River (Museum of Southwestern Biology 2007, entire; 2007a, 
entire; Frey 2008c, pp. 42-45, 56; 2011a, pp. 19, 33). Another peer 
reviewer and subspecies expert, Dr. Jason Malaney (Malaney et al. 2012, 
p. 695; Appendix S1), genetically verified specimens collected in 2007 
along the Florida River as New Mexico meadow jumping mice (museum 
numbers 1154917 and 155117). Recent genetic and morphological studies 
also conclusively found that the New Mexico meadow jumping mouse is a 
distinct subspecies and is genetically discrete from other Zapus 
hudsonius subspecies (King et al. 2006, pp. 4336-4348; Vignieri et al. 
2006, p. 242; Frey 2008c, p. 34; Malaney et al. 2012, p. 695; Figure 
1).
    (83) Comment: The proposed Unit 7 (Florida Unit) extends over 9.7 
km (6 mi) upriver from where the two jumping mice were captured; this 
distance is not supported by scientific information regarding habitat 
requirements or reported movements by the subspecies.
    Our Response: We used the best available scientific and commercial 
information in designating critical habitat based on the physical and 
biological features and PCEs of occupied areas; and unoccupied areas 
that were essential to the conservation of the subspecies, as specified 
in section 4 of the Act. See our response to Comment 1, above, which 
describes our method of designating critical habitat. As stated in the 
SSA Report (Service 2014, entire) and this final rule, additional 
populations are needed to provide connectivity and expand jumping mouse 
populations throughout the drainage. Since there is currently limited 
suitable habitat of only 0.15 ha (0.37 ac), we included 13.6 km (8.4 
mi) in the unit, which would provide the needed size and connectivity 
of suitable habitat of the jumping mouse in the Florida River and 
provide population redundancy and resiliency essential to the 
conservation of the subspecies.
    (84) Comment: There is no evidence that, even if the specimens from 
the Florida River (Unit 7) are New Mexico meadow jumping mice, this 
northern, outlier area is critical to the survival of the subspecies.
    Our Response: See our response to Comment 82, above, about the 
existence of the subspecies in the Florida River. As stated in the SSA 
Report (Service 2014), the subspecies' overall level of extinction risk 
is high, given the ongoing and likely future losses of habitat in 
conjunction with the disjunct and isolated nature of populations. 
Rangewide, we concluded that the jumping mouse needs at least two 
resilient populations (where at least two existed historically) within 
each of eight identified geographic management areas. This number and 
distribution of resilient populations is expected to provide the 
subspecies with the necessary redundancy and representation to provide 
for viability. Conservation of each of the currently remaining 29 
populations is vital for maintaining the overall redundancy and 
representation for the subspecies. Because jumping mouse populations 
are currently small and isolated from one another, the survival and 
recovery of the subspecies will require expanding the size of currently 
occupied areas containing suitable habitat into currently unoccupied 
areas that need to reestablish suitable conditions. The ability of 
jumping mouse populations to be resilient to adverse stochastic events 
depends on the robustness of a population and the ability to recolonize

[[Page 14282]]

if populations are extirpated. In this designation, each of the eight 
critical habitat units is essential for critical habitat to serve its 
intended purpose; loss of functionality of even one unit would severely 
impair the conservation functionality of the entire designation. This 
is further explained in section 3.3 ``Rangewide Subspecies Needs'' of 
the SSA Report (Service 2014).
    (85) Comment: The prohibition against adversely modifying critical 
habitat under section 9 of the Act, irrespective of a Federal nexus, 
will affect private landowners.
    Our Response: Section 9 of the Act does not pertain to critical 
habitat. The prohibition against ``take'' of a listed species under 
section 9 of the Act applies to individuals of an endangered or 
threatened species.

Comments on Environmental Assessment

    (86) Comment: The environmental assessment should address the type 
and extent of monitoring that will be needed for jumping mouse 
populations and habitat.
    Our Response: The environmental assessment analyzes the 
environmental consequences that may result from the designation of 
critical habitat for the jumping mouse. The designation of critical 
habitat does not require monitoring of populations or habitat of the 
jumping mouse. This is beyond the scope of the environmental 
assessment, but will likely be part of the forthcoming recovery plan.
    (87) Comment: Multiple factors, including significance of impacts, 
controversy, regulatory takings implications, and environmental 
justice, indicate that an environmental impact statement is required 
under NEPA.
    Our Response: An environmental impact statement is required only in 
instances where a proposed Federal action is expected to have a 
significant impact on the human environment. In order to determine 
whether designation of critical habitat would have such an effect, we 
prepared an environmental assessment of the effects of the proposed 
designation. On April 8, 2014, we announced the availability of the 
draft environmental assessment in the Federal Register (79 FR 19307) 
and asked for public comment. Following consideration of public 
comments, we prepared a final environmental assessment that determined 
that the critical habitat designation for the jumping mouse does not 
constitute a major Federal action having a significant impact on the 
human environment. That determination is the basis for our finding of 
no significant impact (FONSI). Both the final environmental assessment 
and FONSI are available for public on http://www.regulations.gov under 
Docket No. FWS-R2-ES-2013-0014.
    (88) Comment: There has been no consideration of excluding areas of 
critical habitat based on other relevant impacts to the cultural and 
historic traditions of the people within northern New Mexico.
    Our Response: In the draft environmental assessment, we evaluated 
impacts to cultural and historical resources from the designation of 
critical habitat for the jumping mouse. We found that negative impacts 
on human health or the natural environment are not anticipated.
    In the draft economic analysis, we evaluated impacts to cultural 
and historical resources from the designation of critical habitat for 
the mouse. Project modifications to avoid adverse modification of 
unoccupied critical habitat (Service 2013c), which may affect cultural 
resources, include: (1) Relocate the project to an area outside of 
jumping mouse critical habitat; (2) reduce the size and configuration 
of the proposed project to avoid, reduce, or eliminate the effects to 
unoccupied critical habitat; and (3) avoid ground-disturbing activities 
or reduce project elements that would preclude the development of 
habitat patches containing dense herbaceous riparian vegetation.
    These project modifications are unlikely to affect cultural 
resource projects. Similar project modifications also would apply to 
many other types of projects (e.g., highway reconstruction, 
development, water management) and would serve to protect cultural 
resources from impacts caused by these other projects. Any ground-
disturbing actions to protect critical habitat (e.g., exclosure 
fencing) would require cultural and archaeological surveys and be 
subject to separate cultural resource and NEPA analysis. In our draft 
environmental assessment, we analyzed potential impacts on unique 
cultural and historic resources in the area and found no impacts 
(Harris Environmental 2014, p. 118).
    In the draft environmental assessment, we found that costs 
associated with designation of critical habitat for the jumping mouse 
are not likely to have a significant impact on low-income or minority 
populations because: (1) Total costs are estimated to be less than $100 
million in any one year (and were estimated to be $23 million per year 
in 2014), and (2) costs would be distributed among multiple agencies 
and private parties. Therefore, significant disproportionately high and 
adverse impacts to minority or low-income populations, or to cultural 
and historic traditions, are unlikely to occur.
    (89) Comment: Several commenters stated that the Service cannot 
propose a critical habitat designation prior to the analysis of 
alternatives under NEPA and a draft economic analysis. On August 28, 
2013 (78 FR 53058), the Service revised regulations implementing the 
Act to provide that a draft 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 did not complete an 
economic analysis and make it available for public comment at the time 
of publication of a proposed rule to designate critical habitat for 
jumping mouse.
    Our Response: The Service published our proposed rule to designate 
critical habitat for the jumping mouse on June 20, 2013 (78 FR 37328), 
more than 2 months prior to the publication of the final rule revising 
the regulations for impact analyses of critical habitat (78 FR 53058; 
August 28, 2013), and more than 4 months prior to that final rule's 
effective date (October 30, 2013). On June 20, 2013, our 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 interpreted ``after proposing'' to 
mean after publication of the proposed critical habitat rule. 
Consequently, when we published the jumping mouse proposed critical 
habitat rule, we followed the regulations that were current at that 
time.
    The draft environmental assessment is used to decide whether 
critical habitat will be designated as proposed or if further 
refinements or analyses are needed. The Council on Environmental 
Quality's regulations for implementing the procedural provisions of 
NEPA (40 CFR 1501.3) state that ``Agencies may prepare an environmental 
assessment on any action at any time in order to assist agency planning 
and decisionmaking.'' This same statement is reiterated in the 
Department of the Interior's regulations for implementing NEPA (43 CFR 
46.300(b)). Therefore, we are not required to prepare an environmental 
assessment prior to the publication of a proposed critical habitat 
designation. In addition, the Departmental regulations state that

[[Page 14283]]

``bureaus may seek comments on an environmental assessment if they 
determine it to be appropriate'' (43 CFR 46.305(b)). As such, on April 
8, 2014, we announced the availability of, and solicited public comment 
on, the draft environmental assessment of the proposed critical habitat 
designation in the Federal Register (79 FR 19307).
    (90) Comment: The Service must perform a more thorough analysis of 
the oil and gas potential in proposed Unit 7 because new geological 
information and technologies may reveal deposits that currently have no 
or low potential.
    Our Response: We have used the best scientific and commercial data 
available at the time in developing this critical habitat designation 
and associated documents such as the environmental assessment and 
economic analysis. In our draft environmental assessment, we found that 
conventional oil and gas extraction does not currently occur within the 
proposed critical habitat, and we are aware of no proposed oil or gas 
extraction beyond coalbed methane. As stated in the environmental 
assessment, coalbed methane exploration and production has the 
potential to fragment or eliminate habitat of the jumping mouse within 
Sugarite Canyon, New Mexico, and the Florida River and Sambrito Creek, 
Colorado (Harris Environmental 2014, pp. 76-81). Within Unit 7, there 
are only 2.5 ha (6 ac) of critical habitat in areas with potential for 
coalbed methane development on BLM lands. The BLM does not anticipate 
consultation for coalbed methane development on any of the critical 
habitat units (BLM 2013, entire). There is no critical habitat on 
Forest Service lands within Unit 7. This indicates consultation 
concerning coalbed methane development is not likely.
    Consequently, an analysis of potential impacts to conventional oil 
and gas extraction is not warranted. The ``Energy Resources'' section 
of the draft environmental assessment provides further discussion 
regarding this topic.
    (91) Comment: The designation of critical habitat will have a 
greater impact than the mere listing of the subspecies because it 
contains large areas not occupied by the jumping mouse and will result 
in additional consultations with Federal agencies that might not have 
otherwise occurred.
    Our Response: The designation of unoccupied critical habitat may 
result in additional consultations. However, only those projects that 
may affect critical habitat and have a Federal nexus would require 
section 7 consultations with the Service. During these consultations, 
it is the responsibility of the Federal action agency to consult with 
the Service, not the private individual or company. If there is not a 
Federal nexus for a given action or if critical habitat is not 
affected, then critical habitat designation does not restrict any 
actions that destroy or adversely modify critical habitat including on 
private lands. Our environmental assessment found that the effects of 
proposed critical habitat designation for the jumping mouse would 
likely only result in minor increases in administrative effort for 
section 7 consultations (Harris Environmental 2014, pp. 115-116). See 
our response to Comment 35, above, for further information on section 7 
consultation for critical habitat. See also Consideration of Impacts 
under Section 4(b)(2) of the Act, below.
    (92) Comment: Several commenters asked that we not designate 
critical habitat if it would compromise water rights or otherwise 
adversely impact farmers or other agricultural interests such as 
livestock grazing, irrigation ditches, acequias, or Rio Grande Compact 
delivery obligations within critical habitat units.
    Our Response: Pursuant to the Act, we are statutorily required to 
designate critical habitat for a federally listed species if it is 
determined to be both prudent and determinable. We made a determination 
that critical habitat was both prudent and determinable in our proposed 
rule (78 FR 37328; June 20, 2013). 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 State, tribal, local, or 
private lands. Such designation does not require implementation of 
restoration, recovery, or enhancement measures by non-Federal 
landowners. If there is not a Federal nexus for activities taking place 
on private or State lands, then critical habitat designation does not 
restrict those actions. 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. The mere promulgation of a 
regulation, like designating critical habitat, does not take private 
property unless the regulation on its face denies the property owners 
all economically beneficial or productive use of their land, which is 
not the case with critical habitat. The Act does not restrict all uses 
of critical habitat, but only imposes requirements under section 
7(a)(2) on Federal agency actions that may result in destruction or 
adverse modification of designated critical habitat. These requirements 
do not apply to private actions that do not need Federal approvals, 
permits, or funding. Furthermore, as mentioned above, if a biological 
opinion concludes that a proposed action is likely to result in 
destruction or modification of critical habitat, we are required to 
suggest reasonable and prudent alternatives. See our response to 
Comment 35, above.
    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 
Service has considered these factors; see Consideration of Impacts 
under Section 4(b)(2) of the Act, below. We are unaware of any 
instances where water rights or other agricultural interests would be 
significantly impacted by this designation. Our environmental 
assessment found that the designation of critical habitat would not 
have a significant impact on the human environment and that potential 
impacts on environmental resources, both beneficial and adverse, would 
be minor. Impacts of critical habitat designation on natural resources 
within the areas proposed as jumping mouse critical habitat were 
analyzed and discussed in chapter 3 of the environmental assessment. 
Applying the analysis of impacts to the significance criteria 
identified in chapter 3, the Service concluded that the adverse impacts 
of critical habitat designation would not be significant (Harris 
Environmental 2014, pp. 115-116).
    Further, our final economic analysis did not indicate any 
disproportionate economic impacts resulting from the designation, and 
no impacts to national security or other relevant impacts were 
identified with the exception of Isleta Pueblo and Ohkay Owingeh (see 
Tribal Lands--Exclusions Under Section 4(b)(2) of the Act, below). The 
economic analysis also addresses impacts to livestock grazing in 
section 4 and impacts on water management in section 3.

[[Page 14284]]

Comments on Economic Analysis

    (93) Comment: The designation of critical habitat for the jumping 
mouse in the Middle Rio Grande, New Mexico (Unit 6), would result in an 
increase in time and cost for consultations and impact water 
diversions, the use of water, and agriculture.
    Our Response: In our economic analysis, we anticipate the re-
initiation of a programmatic consultation for water use and management 
activities on the Middle Rio Grande, which would include critical 
habitat on Bosque del Apache NWR. This re-initiation is expected to 
occur regardless of critical habitat designation because Unit 6 is 
partially occupied by the subspecies. It is unlikely that additional 
project modification would be required to avoid adversely modifying or 
destroying critical habitat, because the subspecies is tied so closely 
to its habitat. Our incremental effects memo provides a detailed 
description of the information used for the analysis (Service 2014, 
entire). Therefore, incremental costs are likely limited to the 
additional administrative costs associated with addressing adverse 
modification in the consultation. This incremental administrative 
effort due to the designation of critical habitat should not impact the 
timeliness of consultation.
    (94) Comment: Any increase in water demand to maintain flow 
requirements for critical habitat on Bosque del Apache NWR will result 
in less water for consumptive use within the middle Rio Grande in New 
Mexico.
    Our Response: In our economic analysis, we found it is unlikely 
that critical habitat on Bosque del Apache NWR would generate 
additional requests for conservation efforts beyond what would be 
required due to the listing of the subspecies because the subspecies is 
tied so closely to its habitat. It is unlikely that additional project 
modification would be required to avoid adversely modifying or 
destroying critical habitat. See our response to Comment 93, above.
    (95) Comment: The Service is bound by law to provide a more 
complete economic analysis of the impacts and not just the draft 
economic screening memorandum.
    Our Response: The economic screening memorandum is our economic 
analysis of the proposed critical habitat designation (IEc 2014, 
entire). This analysis provides us with information on the potential 
for the proposed critical habitat rule to result in costs exceeding 
$100 million in a single year. The draft economic analysis addressed 
potential economic impacts of critical habitat designation for the 
jumping mouse. To that end, the analysis estimates impacts to 
activities, including grazing, water use, and recreation, that may 
experience the greatest impacts in compliance with section 4(b)(2) of 
the Act. The draft screening memo is provided to the public for review 
and comment. Following the close of the comment period, we reviewed and 
evaluated all information submitted during the comment period that may 
pertain to our consideration of the probable economic impacts of this 
critical habitat designation. We conclude that critical habitat 
designation for the jumping mouse is unlikely to generate costs 
exceeding $100 million in a single year. Information relevant to the 
probable economic impacts of critical habitat designation for the 
jumping mouse is available in the screening analysis (IEc 2014), 
available at http://www.regulations.gov.
    (96) Comment: The economic analysis fails to consider consultation 
with Federal Emergency Management Agency and Natural Resources 
Conservation Service in proposed Unit 7 that would affect farmers on 
private land that get loans, grants, subsidies, and technical 
assistance.
    Our Response: We contacted these agencies via letter and requested 
information to serve as a basis for conducting an economic analysis of 
the proposed critical habitat designation for the jumping mouse. We 
received no information on anticipated consultations relating to this 
critical habitat designation from these two Federal agencies. 
Consequently, based on the best available scientific and commercial 
data, the economic analysis did not forecast any consultations 
occurring with Federal Emergency Management Agency or Natural Resources 
Conservation Service in Unit 7.
    (97) Comment: The Southern Ute Tribe receives water from the 
Florida Project in proposed Unit 7 (Florida River) to irrigate land 
within the reservation. The Southern Ute Tribe is concerned that the 
Service did not evaluate the economic impacts related to consultation 
with the Bureau of Reclamation and whether the designation of critical 
habitat may impair their abilities to divert and manage water.
    Our Response: Our economic analysis found that it is unlikely that 
critical habitat would generate additional requests for conservation 
efforts beyond what would be required due to the listing of the 
subspecies because the needs of the subspecies are tied so closely to 
its habitat. It is unlikely that additional project modification would 
be required to avoid adversely modifying or destroying critical 
habitat. See our response to Comment 93, above. Therefore, incremental 
costs to this project are likely limited to the additional 
administrative costs associated with addressing adverse modification in 
the consultation.
    (98) Comment: Lemon Dam upstream of Unit 7 (Florida River) is 
principally managed by the Bureau of Reclamation. Consequently, there 
is a concern that routine maintenance and operations may trigger 
section 7 consultation, which may impact timely dam repairs and water 
releases.
    Our Response: Our economic analysis anticipated that we will 
undergo a formal consultation on the operations of the Lemon Dam in 
Unit 7, which is owned by the Bureau of Reclamation (IEc 2014, p. 15). 
As described in the economic screening memorandum, it is unlikely that 
critical habitat would generate additional requests for conservation 
efforts beyond what would be required due to the listing of the 
subspecies because the subspecies is so closely tied to its habitat. 
Unit 7 is partially occupied by the jumping mouse (IEc 2014, p. 15). It 
is unlikely that additional project modification would be required to 
avoid adversely modifying or destroying critical habitat. See our 
response to Comment 93, above. Therefore, incremental costs to this 
project are likely limited to about $5,000, the additional 
administrative costs associated with addressing adverse modification in 
the consultation (IEc 2014, pp. 15, 17). This incremental 
administrative effort due to the designation of critical habitat should 
not impact the timeliness of repairs and water releases.
    (99) Comment: Private landowners within the proposed critical 
habitat units are opposed to the designation due to the economic 
impacts that will result.
    Our Response: We completed an economic analysis of the likely 
impacts of designating critical habitat for the jumping mouse on water 
use and management, transportation, recreation, development, and 
subspecies and habitat management. The economic analysis provides us 
with the information on the potential for the proposed critical habitat 
rule to result in costs exceeding $100 million in a single year. This 
analysis estimated direct (section 7) and indirect costs likely to 
result from the proposed critical habitat designation for the jumping 
mouse undertaken by or permitted by Federal agencies within proposed 
critical habitat. The total quantifiable

[[Page 14285]]

incremental section 7 costs associated with the proposed designation 
was estimated to be $23,000,000 per year in 2014. 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. In addition, the 
analysis concluded that the designation of critical habitat is unlikely 
to trigger additional indirect requirements under State or local 
regulations. Further, this analysis is supplemented by a separate 
memorandum assessing the potential perceptional effects on grazing. 
This analysis concludes that the aggregate value of all activities on 
these lands is less than $100 million. Therefore, we conclude that 
critical habitat designation for the jumping mouse is unlikely to 
generate costs exceeding $100 million in a single year. Based on this 
information, we did not find any areas warranted exclusion from 
designation of critical habitat based on economic impacts (see our 
response to Comment 88, above).
    (100) Comment: The incremental effects memorandum and economic 
screening memorandum were available for public comment for only 30 
days, rather than the required 60 days under 50 CFR 424.16(c)(2).
    Our Response: Under 50 CFR 424.16(c)(2), we are required to allow 
at least 60 days for public comment following publication of a rule 
proposing the designation of critical habitat. This regulation applies 
to the proposed rulemaking, not the economic analysis or environmental 
assessment. We requested written comments from the public on the 
proposed designation of critical habitat during two comment periods. 
The first comment period rule associated with the publication of the 
proposed rule (78 FR 37328) opened on June 20, 2013, and closed on 
August 19, 2013. We also requested comments on the proposed critical 
habitat designation and associated draft economic analysis and draft 
environmental assessment during a comment period that opened April 8, 
2014, and closed on May 8, 2014 (79 FR 19307).
    We provided the normal 30-day comment period for the announcement 
of the availability of these associated documents. We contacted 
appropriate Federal and State agencies, State congressional 
representatives, local governments, tribes, scientific experts and 
organizations, and other interested parties and invited them to comment 
on the proposed rule and associated draft economic analysis and draft 
environmental assessment. On August 15, 2013, we also held an 
informational meeting in Durango, Colorado, after receiving requests 
from interested parties. Similarly, we held informational meetings in 
Ca[ntilde]on, New Mexico, on April 24, 2014; Durango, Colorado, on 
April 28, 2014; and Alamogordo, New Mexico, on May 28, 2014.
    (101) Comment: No attempt was made by the Service to notify any 
stakeholders or prior commenters on the proposed rule when the Service 
made available the draft environmental assessment and draft economic 
analysis for public comment.
    Our Response: We sent letters to Federal and State agencies, State 
congressional representatives, local governments, and interested 
parties, including all individuals that commented on the June 20, 2013, 
proposed rule and those that signed in and provided their full 
addresses to us during the informational meetings (see our response to 
Comment 58, above), and we issued a news release on our Web site. 
Similarly, we held informational meetings in Ca[ntilde]on, New Mexico, 
on April 24, 2014; Durango, Colorado, on April 28, 2014; and 
Alamogordo, New Mexico, on May 28, 2014.
    (102) Comment: A full analysis of economic impacts has not been 
completed and disseminated for public comment.
    Our Response: In order to consider economic impacts, we prepared an 
incremental effects memorandum and screening analysis, which together 
with our narrative and interpretation of effects, was our draft 
economic analysis of the proposed critical habitat designation (IEc 
2014, entire). The draft analysis, dated February 18, 2014, along with 
the draft environmental assessment, was made available for public 
review from April 8, 2014, through May 8, 2014 (79 FR 19307). See our 
responses to Comments 100 and 101, above, that address our outreach 
efforts. The draft environmental assessment addressed potential 
economic impacts of critical habitat designation for the jumping mouse. 
Following the close of the comment period, we reviewed and evaluated 
all information submitted during the comment period that may pertain to 
our consideration of the probable economic impacts of this critical 
habitat designation. The economic analysis provides us with information 
on the potential for the proposed critical habitat rule to result in 
costs exceeding $100 million in a single year. We conclude that 
critical habitat designation for the jumping mouse is unlikely to 
generate costs exceeding $100 million in a single year. Information 
relevant to the probable economic impacts of critical habitat 
designation for the jumping mouse is available in the screening 
analysis (IEc 2014), available at http://www.regulations.gov.
    (103) Comment: The cost estimates presented in the economic 
analysis should be adjusted to account for errors in the land ownership 
information presented in the proposed rule within Subunit 4B.
    Our Response: Federal and private land ownership acreages for 
Subunit 4B were presented incorrectly in Exhibit 1 of the economic 
screening memorandum as a result of a reporting error. However, the 
economic analysis was conducted using the correct ownership acreages, 
namely 118 ha (291 ac) of Federal land and 18 ha (44 ac) of private 
land.
    (104) Comment: The economic analysis does not follow the binding 
legal precedent in the Tenth Circuit by evaluating only the incremental 
effects of critical habitat designation.
    Our Response: As stated in the Service's 2013 revisions to the 
regulations for impact analyses conducted for designations of critical 
habitat under the Act (78 FR 53058, August 28, 2013, see p. 53062), 
``because the primary purpose of an economic analysis is to facilitate 
the mandatory consideration of the economic impact of a designation of 
critical habitat, to inform the discretionary 4(b)(2) exclusion 
analysis, and to determine compliance with relevant statutes and 
Executive Orders, the economic analysis should focus on the incremental 
impact of the designation.'' Therefore, our analysis focuses on 
incremental impacts.
    (105) Comment: The economic screening memorandum does not include 
an analysis of impacts on small businesses.
    Our Response: Under the Regulatory Flexibility Act (5 U.S.C. 601 et 
seq.), Federal agencies are only required to evaluate the potential 
incremental impacts of a 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 adversely modify 
critical habitat. Therefore, under section 7, only Federal action 
agencies are directly subject to

[[Page 14286]]

the specific regulatory requirement (avoiding destruction and adverse 
modification) imposed by critical habitat designation. Under these 
circumstances, it is the Service's position that only Federal action 
agencies will be directly regulated by this designation. Therefore, 
because Federal agencies are not small entities, the Service may 
certify that the proposed critical habitat rule will not have a 
significant economic impact on a substantial number of small entities. 
Because certification is possible, no regulatory flexibility analysis 
is required.
    (106) Comment: The economic analysis is limited to ``a point in 
time'' and does not allow for future changes in pricing for cattle, 
costs for fencing and fence maintenance, inflation, jumping mouse 
population growth, and expansion of suitable habitat.
    Our Response: The economic analysis provides information to the 
Service on the potential for the proposed critical habitat rule to 
result in costs exceeding $100 million in a single year. Many of the 
anticipated impacts, such as animal unit month (AUM) reductions, are 
expected to occur in 2016, following the designation of critical 
habitat for the jumping mouse. In addition, the economic analysis 
conservatively assigns all other impacts, such as fencing, to one year, 
even though some of these costs may occur at a later date, which would 
reduce the actual impact occurring in a single year. Therefore, it is 
appropriate to use current prices.
    (107) Comment: The economic analysis fails to fully consider the 
impact of the designation on State agencies, which may be required to 
consult with the Service on activities that receive Federal funding. 
These activities may include operation and maintenance activities at 
Seven Springs Fish Hatchery, habitat modification or water diversion 
projects on State lands, and removal of nuisance beaver on private or 
public lands.
    Our Response: It is the responsibility of the respective Federal 
agencies, not the State agency, private individual, or company, to 
determine whether any of their ongoing or proposed actions may affect 
jumping mouse critical habitat and to consult with the Service. As 
stated in the economic screening memorandum, critical habitat could 
result in incremental section 7 impacts to State agencies if a Federal 
nexus is present (e.g., if a State agency receives Federal funding). 
However, based on information provided to the Service from Federal 
agency stakeholders and outreach to other stakeholders, we did not 
identify any situations where State agencies receiving Federal funding 
would be affected by the proposed critical habitat designation. 
Incremental costs associated with consultation on operations and 
maintenance activities at the Seven Springs Fish Hatchery in Subunit 3B 
would be limited to administrative costs of consultation because, as 
noted in the proposed rule, this area is partially occupied by the 
subspecies and consultation would occur regardless of the designation 
of critical habitat. Should consultation be required for habitat 
projects or removal of nuisance beaver, the costs of these 
consultations are likely to be minimal because all of the critical 
habitat units are partially occupied. Therefore, the incremental costs 
associated with consultation on these State-led activities are likely 
limited to the additional administrative costs of considering critical 
habitat as part of the informal consultations and would not result in a 
substantial increase in the total costs estimated in the economic 
analysis.
    (108) Comment: The incremental effects memorandum cannot be 
considered an economic analysis as required under section 4(b)(2) of 
the Act as it does not address the potential land use sectors that may 
be affected by the designation and does not estimate costs to directly 
and indirectly impacted entities.
    Our Response: The purpose of the Service's incremental effects 
memorandum is to provide information to serve as a basis for conducting 
the economic analysis of the proposed critical habitat designation. The 
economic screening memorandum (complete title is ``Consideration of 
Economic Impacts: Screening Analysis of the Likely Economic Impacts of 
Critical Habitat Designation for the New Mexico Meadow Jumping Mouse'') 
provides information on the potential for the proposed critical habitat 
rule to result in costs exceeding $100 million in a single year. To 
that end, the analysis in the economic screening memorandum estimates 
impacts to activities (i.e., potential land use sectors) that may 
experience the greatest impacts in compliance with section 4(b)(2) of 
the Act, including grazing, water use, and recreation. We did not find 
that these or any other activities (i.e., potential land use sectors) 
would result in significant economic impacts. See our response to 
Comment 107, above, regarding cost to directly and indirectly impacted 
entities.
    (109) Comment: The designation of critical habitat for the jumping 
mouse will place restrictions on future land uses, causing a reduction 
in property values.
    Our Response: Section 4 of the economic screening memorandum 
includes a discussion of the possible impacts of public perception on 
private property values. The analysis considered the impact that the 
designation of critical habitat may have on grazing, which is 
considered the highest value use of these lands. To evaluate the 
possible magnitude of such costs, the analysis estimates the total 
perpetuity value of the cattle that could be supported by all privately 
owned land and associated Federal leases in the proposed critical 
habitat designation and concludes that it is unlikely to exceed $100 
million. Thus, should property values be affected by the designation, 
the diminution in value could not exceed the total value of the 
properties. Data limitations prevent the estimation of the degree to 
which values might decrease; however, given current property values, 
such costs would not exceed $100 million when combined with the other 
costs estimated in the screening analysis.
    (110) Comment: A more localized analysis of the economic impacts of 
the designation is necessary as the affected communities are quite 
different from one another.
    Our Response: The economic analysis provides us with the 
information on the potential for the proposed critical habitat rule to 
result in costs exceeding $100 million in a single year. To that end, 
the analysis in the economic screening memorandum estimates impacts to 
activities, including grazing, water use, and recreation, that may 
experience the greatest impacts in compliance with section 4(b)(2) of 
the Act. The economic analysis focuses on activities with a Federal 
nexus because an action with no Federal nexus, including actions on 
private lands, is not affected by a designation of critical habitat. A 
key focus of this economic analysis is whether the designation of 
critical habitat would trigger project modifications to avoid adverse 
modification that would be above and beyond any modifications triggered 
by adverse effects to the species itself.
    (111) Comment: The economic analysis fails to consider the economic 
impacts of the proposed critical habitat designation on the holders of 
grazing leases whose allotments are within the proposed critical 
habitat area and must be revised to consider these impacts. One 
commenter suggests that these impacts should be quantified as a 
reduction in the market value of allotments and provides a reference to 
the approach of Hawkes and Libbin (2014) to estimate the market value.

[[Page 14287]]

    Our Response: The economic analysis includes an assessment of 
impacts to grazing (see section 3 of the economic screening 
memorandum). Specifically, the analysis estimates costs associated with 
AUM reductions and fencing where allotments overlap proposed critical 
habitat. AUM reductions represent a high-cost conservation alternative; 
lower cost alternatives may be available, including shifting cattle 
rotation patterns and developing alternative water sources. In line 
with this threshold analysis approach, we focus our analysis on the 
highest possible cost impact. Total costs associated with grazing 
activities are estimated to be $23 million. (The draft screening 
memorandum estimate is $15 million. However, based on public comments, 
additional analysis regarding water developments, cattle guards, and 
NEPA processes was conducted.)
    Despite the fact that a section 7 nexus is unlikely for grazing 
activities conducted on private lands, the ranching community may 
perceive that the designation of certain parcels as critical habitat 
will limit future grazing activities in those areas. In addition, 
private landowners hold renewable leases that are both inheritable and 
transferrable with the sale of the land, or in the case of Forest 
Service permits, the transfer of livestock (pending the approval of the 
Forest Service). In the ``Supplemental Information on Perceptional 
Effects on Grazing--Critical Habitat Designation for the New Mexico 
Meadow Jumping Mouse'' (supplemental memorandum) we evaluated the 
possible magnitude of such costs. Based on the analysis presented in 
this memorandum, the value of grazing activities is unlikely to exceed 
$100 million.
    To quantify these impacts, the economic analysis: (1) Identifies 
reductions in the number of cattle that will be allowed to graze in the 
form of reductions in AUMs; and (2) estimates costs associated with 
these reductions using the permit value per AUM in perpetuity. Permit 
value can be used as a measure of rancher wealth tied up in grazing 
permits, and forced reductions in AUMs can be represented by a loss in 
permit value. We rely on estimates of permit value, in perpetuity, of 
grazing on Forest Service lands from nine published studies to 
determine an average permit value per AUM. This approach has been 
applied in previous economic analyses of proposed critical habitat 
designations promulgated by the Service and has been the subject of 
technical review by academic experts.
    (112) Comment: Multiple commenters state that the designation of 
critical habitat will have a significant economic impact on ranchers 
who own allotments on National Forest lands. This impact will result 
from the Forest Service reducing stocking rates and limiting livestock 
access to water. The commenters assert that without access to water, 
ranchers may be put out of business, which would have a larger effect 
on the economies of the region.
    Our Response: See our response to Comment 111, above, regarding 
economic impact on ranchers. We acknowledge that if fencing limits 
access to water, costs could be higher than what was estimated in the 
screening analysis. Therefore, we incorporate costs associated with the 
development of alternative water sources for cattle based on 
information provided by the Forest Service (see our response to Comment 
114, below).
    (113) Comment: The commenters state that the assumption applied in 
the economic analysis that AUM reductions due to jumping mouse 
conservation are proportional to the percentage of allotment area 
proposed for critical habitat designation is incorrect. One commenter 
notes that this assumption does not take into account the fact that 
fencing riparian areas also fences off water and other areas that are 
not proposed as critical habitat.
    Our Response: The assumption that AUM reductions are proportional 
to the percentage of allotment area proposed for critical habitat 
designation could understate or overstate costs. However, absent 
specific information on forecast AUM reductions, we believe that this 
is a reasonable assumption. This assumption has been applied in 
previous economic analyses that were peer-reviewed by subject experts. 
In addition, the estimated total value of the AUMs of all allotments 
intersecting the proposed designation is approximately $2.0 million, 
and, therefore, even in the unlikely scenario that fencing of riparian 
areas results in the full loss of AUMs from allotments intersecting 
proposed critical habitat, the total impacts would not approach the 
$100 million threshold. Lastly, in response to information provided by 
the Forest Service, we incorporate costs associated with the 
development of alternative water sources for cattle that may be 
required if fencing limits access to water (see our response to Comment 
114, below).
    (114) Comment: One commenter suggests that costs must be added to 
the economic analysis associated with management for the jumping mouse 
and its habitat within the National Forests. In particular, water 
developments will be necessary if fencing around streams occurs, at a 
cost of up to $500,000 within the Apache-Sitgreaves National Forest and 
$400,000 within the Lincoln National Forest. In addition, within the 
Lincoln National Forest, cattleguards would be needed where fencing 
intersects roads and trails, at a cost of $310,000. Also within the 
Lincoln National Forest, costs associated with employing an on-site 
fire crew and law enforcement during fence installation are estimated 
to cost $3,500 per day. Similar water development, cattleguard, and 
fire protection costs are anticipated within the Santa Fe National 
Forest. Finally, the high-end cost for completing the NEPA process to 
address critical habitat for the mouse is estimated to be $200,000 for 
each National Forest.
    Our Response: Based on information provided by the Southwestern 
Region of the Forest Service, we conservatively assumed that water 
developments, cattle guards, and NEPA processes would be required as a 
result of the proposed critical habitat designation for the jumping 
mouse, and this cost has been included in the economic analysis. At 
this time, it is unknown whether on-site fire crews and law enforcement 
will be needed during future fence installation, and therefore this was 
not included in the economic analysis. We estimated a cost of $200,000 
per forest for NEPA processes, totaling $600,000. In addition, we 
estimated costs of $100,000 per pasture for water developments within 
five pastures in the Apache-Sitgreaves National Forest, four pastures 
in the Lincoln National Forest, and six pastures in Santa Fe National 
Forest, for a total of $1.5 million. The Apache-Sitgreaves National 
Forest and Lincoln National Forest provided the estimates of the number 
of pastures requiring water developments, and we conservatively assumed 
that all pastures intersecting the proposed designation in Santa Fe 
National Forest will require water developments. We applied the high-
end cost estimate of $100,000 per-development provided by the Forest 
Service for each anticipated water development. In addition, we 
estimated costs of $310,000 per forest for cattleguards. Santa Fe and 
Apache-Sitgreaves National Forests were not able to provide cost 
estimates for cattleguards, so we assumed that their needs will be 
similar to those in the Lincoln National Forest, which estimated that 
20 road and 5 trail cattleguards will be needed. In total, the 
estimated cost of the conservation measures described above is $2.7 
million. This estimate is likely to overstate incremental costs, as 
some of

[[Page 14288]]

these conservation measures may be implemented in occupied habitat; the 
costs in occupied areas would not be incremental costs due to the 
designation of critical habitat. The addition of these conservation 
costs, as well as updates to the number of permitted AUMs in Apache-
Sitgreaves National Forest (described below in Comment 118), yields a 
revised incremental impacts estimate of $23 million, which does not 
approach the $100 million threshold, even when combined with 
information about the total value of grazing rights in the proposed 
critical habitat designation (see our response to Comment 111, above, 
regarding potential perception effects).
    (115) Comment: It is incorrect to assume that allotments with less 
than 5 percent of their total area overlapping proposed critical 
habitat will be able to shift grazing activities away from the critical 
habitat areas at minimal cost and without affecting the overall grazing 
within the allotment. Because grazing does not occur equally across the 
allotment and habitat conditions vary considerably within each 
allotment, grazing pressure can vary.
    Our Response: This assumption has been applied in previous economic 
analyses that were peer-reviewed by subject experts. To test the effect 
of this assumption on our overall cost estimate, we updated our 
analysis to include those allotments with less than 5 percent of their 
total area overlapping proposed critical habitat and find that the 
total cost of AUM reductions in these additional areas would be less 
than $40,000.
    (116) Comment: The commenter states that exhibit 3 of the economic 
analysis is incorrect in stating that AUM reductions are not 
anticipated for allotments for which the number of permitted AUMs is 
unknown.
    Our Response: Exhibit 3 indicates that AUM reductions are not 
anticipated for these allotments because the percentage of overlap of 
these allotments with the proposed critical habitat does not exceed the 
5 percent threshold.
    (117) Comment: The costs of replacing fencing lost due to the 
Wallow Fire in areas where the species is present should be included in 
the economic analysis.
    Our Response: Guidelines issued by the U.S. Office of Management 
and Budget (OMB) for the economic analysis of regulations direct 
Federal agencies to measure the costs and benefits of a regulatory 
action against a baseline. Costs incurred in areas where the species is 
present are baseline costs, meaning that these actions would occur 
without critical habitat designation. Impacts that are incremental to 
the baseline are those that are solely attributable to the designation 
of critical habitat. This screening analysis focuses on the likely 
incremental effects of the critical habitat designation for the jumping 
mouse.
    (118) Comment: Several commenters assert that the AUMs reported in 
the economic analysis do not accurately reflect the permitted AUMs for 
each allotment. One commenter states that given the multiple-year 
drought impacting these areas, using the current AUMs significantly 
underestimates AUMs associated with each allotment and the analysis 
should use the full permitted AUMs. A second commenter provides a more 
accurate reflection of the permitted AUMs for allotments within the 
Apache-Sitgreaves National Forest.
    Our Response: The grazing analysis described in the economic 
screening memorandum is based on the best available information at the 
time of writing. For the Apache-Sitgreaves National Forest, specific 
permitted AUMs were not available, so the analysis used estimated AUMs 
based on the Apache-Sitgreaves National Forest's annual operating 
instructions. We have updated our analysis to include the more accurate 
permitted AUM data provided by the Apache-Sitgreaves National Forest 
during the public comment period. Using this information, we find that 
the overall results of the economic analysis were not significantly 
affected and the costs we estimated in 2014 do not approach the $100 
million threshold.
    (119) Comment: The designation of critical habitat will result in 
increased operating costs associated with altering the current grazing 
system within allotments. The commenter believes that changes to the 
grazing system will result in increased labor and travel costs, and 
excessive handling of cattle may result in lower weaning weights, 
increased calf losses, and lower reproductive rates.
    Our Response: The economic analysis estimates costs associated with 
AUM reductions and fencing of riparian areas (including alternative 
water sources for cattle). As described in section 3 of the economic 
screening memorandum, these costs represent a high-cost estimate. Lower 
cost options may be available, including shifting cattle rotation 
patterns and developing alternative water sources. The estimated total 
value of the AUMs of all allotments intersecting the proposed 
designation is approximately $2.0 million, and, therefore, even in the 
unlikely scenario that lower weaning weights, increased calf losses, 
and lower reproductive rates result in the full loss of AUMs from 
allotments intersecting proposed critical habitat, the total impacts 
would not approach the $100 million threshold.
    (120) Comment: Under section 9 of the Act, notwithstanding Federal 
nexus, a farmer or rancher may be prohibited from grazing cattle or 
conducting other agricultural activities. The commenter asserts that 
costs stemming from this requirement should be included in the economic 
analysis.
    Our Response: Section 9 of the Act prohibits take of any species 
listed as an endangered species and makes it illegal for any person 
subject to the jurisdiction of the United States to harass, harm, 
pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to 
attempt any of these, such species. Section 9 is not applicable to 
critical habitat. 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. Therefore, costs related to the 
requirements of section 9 of the Act are not incremental impacts of the 
proposed critical habitat designation and are not included in the 
economic analysis.
    (121) Comment: Several commenters note that project modifications 
to water development and use activities may disrupt the availability of 
water for agriculture, reducing agricultural productivity. The 
commenters state that the economic analysis should include an 
assessment of impacts to agricultural productivity on all lands 
irrigated by water management infrastructure included in the proposed 
critical habitat designation.
    Our Response: In section 3 of the economic screening memorandum, we 
address potential impacts to water management projects, including the 
Bernalillo to Belen Levees project in excluded Subunit 6A, the Lake 
Dorothey and Lake Alice projects in Unit 1, the Lemon Dam in Unit 7, 
and water use and management activities on the Middle Rio Grande. 
Overall, we find that the designation of critical habitat for the 
jumping mouse will not result in incremental changes to water 
management activities, and, therefore, the designation is not expected 
to result in impacts to agricultural productivity.
    (122) Comment: The commenters state that the economic analysis 
underestimates the impacts associated with water management in proposed 
Unit 7 (Florida River) and should include costs associated with

[[Page 14289]]

consultation on the Florida Project and any operating restrictions that 
may result in decreased water availability to end-users. Additionally, 
the economic analysis must consider costs associated with managing the 
Lemon Reservoir on the Florida River.
    Our Response: The economic analysis includes an assessment of 
potential incremental effects on the Lemon Dam, which is the principal 
feature of the Florida Project (see section 3 of the economic screening 
memorandum). Specifically, the analysis forecasts costs associated with 
a consultation between the Service and the Bureau of Reclamation to 
consider the effects of the operations of the Lemon Dam in Unit 7. As 
described in the economic screening memorandum, as Unit 7 is partially 
occupied by the species, it is unlikely that critical habitat would 
generate additional requests for conservation efforts beyond what would 
be required due to the listing of the species, and, therefore, the 
incremental costs to this project are likely limited to administrative 
consultation costs associated with addressing adverse modification in 
the consultation.
    (123) Comment: Ongoing efforts by the Bureau of Reclamation to 
enhance wetlands within Unit 8 (Sambrito Creek) will be affected by 
section 7 consultation requirements. The commenters assert that these 
costs should be included in the economic analysis.
    Our Response: While the Bureau of Reclamation's wetland restoration 
efforts in Unit 8 may require section 7 consultation with the Service, 
the administrative costs associated with addressing adverse 
modification in a consultation would be minor (approximately $5,000 for 
a formal consultation). As the unit is partially occupied it is 
unlikely that critical habitat would generate additional requests for 
conservation efforts beyond what would be required due to the listing 
of the species. In addition, because the purpose of these activities is 
to benefit the habitat, the Service does not expect to recommend 
conservation measures above and beyond those already required by the 
Bureau of Reclamation as part of the project.
    (124) Comment: The economic analysis should evaluate the impact of 
fencing areas on elk populations and the associated impact on hunting. 
Through limiting the availability of water, there is a potential for a 
decrease in elk herd sizes leading to decreases in hunting revenue.
    Our Response: The Forest Service does not expect pipe fencing to 
affect elk populations because elk will be able to jump over the 
fencing. In addition, elk and other game will be able to access water 
developments, provided by the Forest Service, installed in pastures 
with fencing around streams. Costs related to these water developments 
are discussed in our response to Comment 114, above.
    (125) Comment: The conclusion of the economic analysis that impacts 
to recreation will likely be minor to moderate is inaccurate because 
recreationists on Forest Service lands are drawn to areas with water. 
Restricting off-trail uses, including angling, may cause recreationists 
to travel to other areas and reduce income to communities that depend 
on the recreation industry.
    Our Response: See our response to Comment 35, above.
    (126) Comment: Several commenters state that the economic analysis 
is incorrect in saying that the proposed critical habitat designation 
is located in areas where development pressure is low and that in fact 
development pressure is significant along the Florida River (Unit 7) 
and is likely to grow. The commenters state that the analysis does not 
consider the impacts of critical habitat designation on highly valuable 
private property in Unit 7 and Unit 8, and does not consider that many 
private landowners hold inheritable and transferable grazing leases for 
the land that may affect the value of connected private holdings or 
property rights.
    Our Response: One comment references La Plata County Planning 
Department maps that show potential land use opportunities for 
subdivisions or commercial development projects. However, the commenter 
did not provide the maps, and we were unable to locate these maps. We 
consulted available La Plata County Planning Department land use plans 
and noted that the land use plan for Florida Mesa District, which 
includes Unit 7, specifically includes an objective to discourage 
future building in the 100-year flood plains, noting benefits to 
recreation and wildlife. See our response to Comment 47, above, for a 
response to private holdings and property rights.
    In section 4 of the economic screening memorandum, we analyze 
potential perceptional effects of the proposed designation on private 
grazing lands and associated grazing permits on public lands. We 
conclude that the total value of grazing supported by privately owned 
land and Federal leases within the proposed designation is unlikely to 
exceed $100 million. Thus, should property values be affected by the 
designation, the diminution in value could not exceed the total value 
of the properties. Data limitations prevent the estimation of the 
degree to which values might decrease; however, given current property 
values, such costs would not exceed $100 million when combined with the 
other costs estimated in the screening analysis. See our response to 
Comment 111, above, for information regarding grazing and grazing 
leases.
    (127) Comment: The economic analysis should consider how potential 
future energy development could be impacted by the designation, 
including impacts on leases held in proposed Units 7 and 8, job 
impacts, and revenue impacts. New geological information and advances 
in exploration and production technologies may reveal that areas 
proposed for critical habitat designation currently regarded as having 
no or low potential for oil and gas development could actually have 
much higher potential in the future.
    Our Response: Our economic analysis includes ``reasonably 
foreseeable'' impacts of the proposed designation. The Service 
conducted outreach efforts to other Federal agencies concerning the 
likely effects of critical habitat and limited interviews with relevant 
stakeholders. We received no response on anticipated consultations 
relating to oil and gas development within critical habitat designation 
for the jumping mouse. Consequently, based on the best available 
scientific and commercial data, the economic analysis did not forecast 
any consultations related to oil and gas.
    (128) Comment: The economic analysis should consider impacts to the 
U.S. Army Corps of Engineers (Corps) associated with future 
consultations.
    Our Response: The Corps' Albuquerque District provided the Service 
with feedback on ongoing and planned activities within the proposed 
critical habitat units, which include species and habitat management 
activities and water management projects. Exhibit 6 in the economic 
analysis presents the total incremental costs by subunit associated 
with the forecast consultations with the Forest Service and the Corps 
(IEc 2014, pp. 16-17). These costs include the administrative costs 
associated with the consultations, as well as the costs of potential 
conservation measures, where applicable. Total costs are estimated to 
be $4.1 million over the next 20 years, or $360,000 on an annualized 
basis (7 percent discount rate).
    (129) Comment: Due to the designation of critical habitat, county 
and State governments may develop regulations regarding private lands 
that

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restrict future land uses, such as development.
    Our Response: Section 4 of the economic screening memorandum 
discusses the potential for indirect incremental costs to occur outside 
of the section 7 consultation process. These types of costs include 
triggering additional requirements or project modifications under State 
laws or regulations, and perceptional effects on markets. The jumping 
mouse is provided some level of protection in each of the States 
containing proposed critical habitat designation (see exhibit 8 in the 
economic screening memorandum). Although protective status for the 
subspecies may not require implementation of conservation efforts 
sufficient to protect the subspecies' habitat, these designations 
suggest that State agencies are likely to be aware of the presence of 
the subspecies. We therefore assume that the designation of critical 
habitat is unlikely to trigger State- or county-level impacts as a 
result of increased awareness of the subspecies and its habitat in 
States where the jumping mouse is currently afforded some protective 
status. We are not aware of any effects of this type associated with 
prior designations of critical habitat for other species in the region. 
Therefore, absent specific additional information related to the 
probability of local governments developing such regulations, and the 
specific restrictions that could be imposed, we are unable to quantify 
impacts.
    (130) Comment: The benefits listed in the economic screening 
memorandum are lacking specificity and are incapable of being 
evaluated.
    Our Response: As stated in section 5 of the economic screening 
memorandum, benefits resulting from incremental conservation efforts 
include direct benefits associated with the primary goal of species 
conservation and ancillary benefits that derive from conservation 
efforts but are not the purpose of the Act. In order to quantify and 
monetize these benefits, information is needed to determine the 
incremental change in the probability of jumping mouse conservation 
expected to result from the designation and the public's willingness to 
pay for such beneficial changes. We were not able to identify any 
published studies that estimate the value the public places on 
preserving the jumping mouse. In addition, we do not have information 
on the expected change in the subspecies' population levels that may 
result from critical habitat designation for the jumping mouse. We 
therefore provide a qualitative summary of the expected benefits.

Summary of Changes from the Proposed Rule

    In this rule, we are designating a total of approximately 5,657 ha 
(13,973 ac) along 272.4 km (169.3 mi) of flowing streams, ditches, and 
canals as critical habitat for the jumping mouse. This amounts to a 
reduction of 235 ha (587 ac) from what we proposed to designate on June 
20, 2013 (78 FR 37328). We reviewed a number of site-specific comments 
related to critical habitat for the jumping mouse during the comment 
periods. In addition, we completed our analysis of areas considered for 
exclusion under section 4(b)(2) of the Act, completed the final 
environmental assessment and the finding of no significant impact, and 
completed the economic analysis of the designation. We fully considered 
all comments we received from the public, peer reviewers, States, and 
Federal agencies on the proposed rule and the associated environmental 
assessment and economic analysis to develop this final designation of 
critical habitat for the jumping mouse. We received requests to both 
reduce and expand the designation within many units. Except for minor 
boundary modifications and two exclusions, we did not receive any 
information that resulted in modification of our original proposal to 
designate critical habitat. Our final designation of critical habitat 
reflects the following changes from the proposed rule:
    (1) We updated the primary constituent elements (PCEs) for the 
jumping mouse by removing reed canarygrass from the list of plants and 
by revising the description of ``tall'' vegetation to mean an average 
stubble height of herbaceous vegetation of at least 61 cm (24 inches). 
The removal of reed canarygrass from the PCEs is a minor technical 
correction based on a comment from one peer reviewer that indicated 
that inclusion of reed canarygrass was unusual and based on outdated 
information. In the proposed rule, we defined average stubble height as 
measured with a ruler to be 69 cm (27 inches), and vertical cover as 
measured with a Robel pole to be 61 cm (24 inches). As stubble height 
and vertical cover are highly correlated, we have revised ``tall'' 
vegetation to reflect the measurements made with a Robel pole, which is 
a more rapid technique and would thus allow for both height and 
vertical density of vegetation to be assessed. Because of these 
changes, the PCEs for the jumping mouse in this rule state that the 
jumping mouse uses areas that support tall (average stubble height of 
herbaceous vegetation of at least 61 cm (24 inches)) and dense 
herbaceous riparian vegetation composed primarily of sedges (Carex spp. 
or Schoenoplectus pungens) and forbs.
    (2) Based on recently finalized map data that were still in draft 
form during our initial analysis, we revised mapping errors at the 
terminus of Subunit 4A and Unit 7. These minor corrections did not 
reduce the size of Subunit 4A, but reduced Unit 7 by 3 ha (8 ac).
    (3) Based on a review of land ownership acres, we reversed the land 
ownership values in Subunit 4B (Upper Pe[ntilde]asco), which was 
incorrectly presented in the proposed rule as 18 ha (44 ac) Forest 
Service, 118 ha (291 ac) Private. The correct land ownership values are 
118 ha (291 ac), 18 ha (44 ac) Private.
    (4) Based on a comment and new information we received, we changed 
the upstream boundary of Unit 7 (Florida River, in the State of 
Colorado) because the area in our proposal included manmade structures 
and lands that do not contain suitable habitat or restorable habitat 
for the subspecies. Our subsequent analysis of Unit 7 determined that 
approximately 3 ha (8 ac) of unoccupied critical habitat that we 
proposed is not essential for the conservation of the jumping mouse. 
This area contains a manmade water diversion structure and associated 
lands that are not likely restorable habitat and therefore unlikely to 
ever support the jumping mouse. Accordingly, we made minor changes to 
the critical habitat boundary and revised the Unit 7 map to remove this 
area because this area does not meet our definition of critical 
habitat. The final revised critical habitat in Unit 7 consists of 253 
ha (626 ac) of private lands.
    (5) We carefully considered the benefits of inclusion and the 
benefits of exclusion, under section 4(b)(2) of the Act, of the 
specific areas identified in the proposed critical habitat rule, 
particularly in areas where a management plan specific to the jumping 
mouse is in place, and also where the maintenance and fostering of 
important conservation partnerships were a consideration. Based on the 
results of our analysis, we are excluding approximately 94 ha (230 ac) 
of Subunits 6A and 6B from this final critical habitat designation for 
the jumping mouse (see Tribal Lands--Exclusions Under Section 4(b)(2) 
of the Act, below). Due to these changes in our final critical habitat 
designation, proposed critical habitat Subunit 6C is now Unit 6 in this 
rule.

[[Page 14291]]

    Exclusion from critical habitat should not be interpreted as a 
determination that these areas are unimportant, that they do not 
provide physical or biological features essential to the conservation 
of the species (for occupied areas), or are not otherwise essential for 
conservation (for unoccupied areas); exclusion merely reflects the 
Secretary's determination that the benefits of excluding those 
particular areas outweigh the benefits of including them in the 
designation.
    (5) We corrected an error in our area calculations for Subunit 6C, 
Bosque del Apache NWR (now Unit 6). In the proposed rule (78 FR 37328; 
June 20, 2013), we identified 201 ha (496 ac) as critical habitat on 
the Bosque del Apache NWR. This final rule correctly identifies 403 ha 
(995 ac) of critical habitat.
    (6) We corrected an error in our area calculations for Unit 1. In 
the proposed rule (78 FR 37328; June 20, 2013), we erroneously 
identified Unit 1 as having 344 ha (849 ac) of private lands within 
critical habitat. However, there are not any private lands designated 
as critical habitat within Unit 1. The proposed rule identified 687 ha 
(1,698 ac) for the total area of Unit 1. The corrected total in this 
final rule for Unit 1 is 343 ha (849 ac).
    (7) Descriptions and critical habitat maps can be found later in 
this document. This final designation of critical habitat represents a 
reduction of 235 ha (587 ac) from our proposed critical habitat for the 
jumping mouse for the reasons detailed above.

Critical Habitat

Background

    Critical habitat is defined in section 3 of the Act as:
    (1) The specific areas within the geographical area occupied by the 
species, at the time it is listed in accordance with the Act, on which 
are found those physical or biological features:
    (a) Essential to the conservation of the species and
    (b) Which may require special management considerations or 
protection; and
    (2) Specific areas outside the geographical area occupied by the 
species at the time it is listed, upon a determination that such areas 
are essential for the conservation of the species.
    Conservation, as defined under section 3 of the Act, means to use 
and the use of all methods and procedures that are necessary to bring 
an endangered or threatened species to the point at which the measures 
provided under the Act are no longer necessary. Such methods and 
procedures include, but are not limited to, all activities associated 
with scientific resources management such as research, census, law 
enforcement, habitat acquisition and maintenance, propagation, live 
trapping, and transplantation, and, in the extraordinary case where 
population pressures within a given ecosystem cannot be otherwise 
relieved, may include regulated taking.
    Critical habitat receives protection under section 7 of the Act 
through the requirement that Federal agencies ensure, in consultation 
with the Service, that any action they authorize, fund, or carry out is 
not likely to result in the destruction or adverse modification of 
critical habitat. The designation of critical habitat does not affect 
land ownership or establish a refuge, wilderness, reserve, preserve, or 
other conservation area. Such designation does not allow the government 
or public to access private lands. Such designation does not require 
implementation of restoration, recovery, or enhancement measures by 
non-Federal landowners. Where a landowner requests Federal agency 
funding or authorization for an action that may affect a listed species 
or critical habitat, the consultation requirements of section 7(a)(2) 
of the Act would apply, but even in the event of a destruction or 
adverse modification finding, the obligation of the Federal action 
agency and the landowner is not to restore or recover the species, but 
to implement reasonable and prudent alternatives to avoid destruction 
or adverse modification of critical habitat.
    Under the first prong of the Act's definition of critical habitat, 
areas within the geographical area occupied by the species at the time 
it was listed are included in a critical habitat designation if they 
contain physical or biological features (1) which are essential to the 
conservation of the species and (2) which may require special 
management considerations or protection. For these areas, critical 
habitat designations identify, to the extent known using the best 
scientific and commercial data available, those physical or biological 
features that are essential to the conservation of the species (such as 
space, food, cover, and protected habitat). In identifying those 
physical and biological features within an area, we focus on the 
principal biological or physical constituent elements (primary 
constituent elements such as roost sites, nesting grounds, seasonal 
wetlands, water quality, tide, soil type) that are essential to the 
conservation of the species. Primary constituent elements are the 
specific elements of physical or biological features that provide for a 
species' life-history processes, and are essential to the conservation 
of the species.
    Under the second prong of the Act's definition of critical habitat, 
we can designate critical habitat in areas outside the geographical 
area occupied by the species at the time it is listed, upon a 
determination that such areas are essential for the conservation of the 
species. For example, an area currently occupied by the species but 
that was not occupied at the time of listing may be essential to the 
conservation of the species and may be included in the critical habitat 
designation. We designate critical habitat in areas outside the 
geographic 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 and commercial 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 (for 
the jumping mouse, as reviewed in the SSA Report (Service 2014)) and 
the proposed and final rules for listing the species. Additional 
information sources may include 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

[[Page 14292]]

necessary for the recovery of the species. For these reasons, a 
critical habitat designation does not signal that habitat outside the 
designated area is unimportant or may not be needed for recovery of the 
species. Areas that are important to the conservation of the species, 
both inside and outside the critical habitat designation, will continue 
to be subject to: (1) Conservation actions implemented under section 
7(a)(1) of the Act, (2) regulatory protections afforded by the 
requirement in section 7(a)(2) of the Act for Federal agencies to 
ensure their actions are not likely to jeopardize the continued 
existence of any endangered or threatened species, and (3) 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, or other species 
conservation planning efforts if new information available at the time 
of these planning efforts calls for a different outcome.

Physical or Biological Features

    In accordance with section 3(5)(A)(i) and 4(b)(1)(A) of the Act and 
regulations at 50 CFR 424.12, in determining which areas within the 
geographical area occupied by the species at the time of listing to 
designate as critical habitat, we consider the physical or biological 
features that are essential to the conservation of the species and 
which may require special management considerations or protection. 
These include, but are not limited to:
    (1) Space for individual and population growth and for normal 
behavior;
    (2) Food, water, air, light, minerals, or other nutritional or 
physiological requirements;
    (3) Cover or shelter;
    (4) Sites for breeding, reproduction, or rearing (or development) 
of offspring; and
    (5) Habitats that are protected from disturbance or are 
representative of the historical, geographic, and ecological 
distributions of a species.
    We derive the specific physical or biological features required for 
the jumping mouse from studies of this species' habitat, ecology, and 
life history as described below. Unfortunately, there have been 
relatively few studies on the jumping mouse and its natural life 
history, and information gaps remain. However, we have used the best 
available information as described in the SSA Report (Service 2014). To 
identify the physical and biological needs of the jumping mouse, we 
relied on conditions at currently occupied locations where the jumping 
mouse has been observed during surveys, and the best information 
available on the species and its close relatives. Below, we summarize 
the physical and biological features needed by foraging, breeding, and 
hibernating New Mexico meadow jumping mice. For a complete review of 
the physical and biological features required by the jumping mouse, see 
chapter 2 in the SSA Report (Service 2014).
    For the jumping mouse to be considered viable, individual mice need 
specific vital resources for survival and completion of their life 
history. One of the most important aspects of the jumping mouse's life 
history is that it hibernates about 8 or 9 months out of the year, 
longer than most mammals. Conversely, it is only active 3 or 4 months 
during the summer. Within this short timeframe, it must breed, birth, 
raise young, and store up sufficient fat reserves to survive the next 
year's hibernation period. In addition, New Mexico meadow jumping mice 
only live 3 years or less and have one small litter annually with 7 or 
fewer young, so the subspecies has limited capacity for high population 
growth rates due to this low fecundity. As a result, if resources are 
not available in a single season, jumping mice populations will be 
greatly impacted.
    The jumping mouse has exceptionally specialized habitat 
requirements to support these life-history needs and maintain adequate 
population sizes. Habitat requirements are characterized by tall 
(averaging at least 61 cm (24 in)), dense herbaceous (plants with no 
woody tissue) riparian vegetation composed primarily of sedges and 
forbs. This suitable habitat is found only when wetland vegetation 
achieves full growth potential associated with seasonally perennial 
(persistent water during the vegetation growing season) flowing water 
and saturated soils. This vegetation is an important resource need for 
the jumping mouse because it provides vital food sources (insects and 
seeds), as well as the structural material for building day nests that 
are used for shelter from predators. It is imperative that the jumping 
mouse have rich abundant food sources during the summer so that it can 
accumulate sufficient fat reserves to survive the long hibernation 
period because the subspecies does not cache food for the winter. In 
addition, individual New Mexico meadow jumping mice also need intact 
upland areas adjacent to riparian wetland areas because this is where 
they build nests or use burrows to give birth to young in the summer 
and to hibernate over the winter.
    These suitable habitat conditions need to be in appropriate 
locations and of adequate sizes to support healthy populations of the 
jumping mouse. Historically, these wetland habitats would have been in 
large patches located intermittently along long stretches of streams. 
The ability of jumping mouse populations to be resilient to adverse 
stochastic events depends on the robustness of a population and the 
ability to recolonize if populations are extirpated. Because counting 
individual New Mexico meadow jumping mice to assess population sizes is 
very difficult and data are unavailable, we can best measure population 
health by the size of the intact, suitable habitat available. We 
estimate that resilient populations of New Mexico meadow jumping mice 
need at least 27.5 to 73.2 ha (68 to 181 ac) of suitable habitat along 
9 to 24 km (5.6 to 15 mi) of flowing streams, ditches, or canals. This 
distribution and amount of suitable habitat will support multiple 
subpopulations of New Mexico meadow jumping mice throughout each of the 
waterways and would provide for sources of recolonization if some areas 
were extirpated due to disturbances, thereby increasing the chance of 
jumping mouse populations surviving the elimination or alteration of 
suitable habitat from a variety of sources and persisting while the 
necessary vegetation is restored. The suitable habitat patches must be 
relatively close together because the jumping mouse has limited 
dispersal capacity for natural recolonization. In our SSA Report 
(Service 2014), we determined that rangewide, the jumping mouse needs 
at least two resilient populations (where at least two existed 
historically) within each of eight identified geographic management 
areas. The eight geographic management areas are defined by the 
external boundaries of the geographic distribution of historical 
populations. We use the term geographic management area to describe the 
geographic region where populations of jumping mice are located. This 
number and distribution of resilient populations is expected to provide 
the subspecies

[[Page 14293]]

with the necessary redundancy and representation to provide for 
viability.
    Populations of New Mexico meadow jumping mice with a high 
likelihood of long-term viability require functionally connected areas 
throughout stream reaches, ditches, or canals. This continuous suitable 
habitat is necessary to attain the population sizes and densities 
needed to increase the probability that populations of the subspecies 
will persist in the face of natural or manmade events and seasonal 
fluctuations of food resources. Because the subspecies occurs only in 
areas that are water-saturated, populations have a high potential for 
extirpation when habitat dries due to ground and surface water 
depletion, draining of wetlands, or drought. Jumping mouse habitat is 
subject to dynamic changes that result from flooding and drying of 
these waterways and the ensuing fluctuations (loss and regrowth) in the 
quantity and location of dense herbaceous riparian vegetation over 
time. Consequently, fluctuating water levels may create circumstances 
in which New Mexico meadow jumping mouse population sizes and locations 
within a waterway vary over time, and populations may be periodically 
extirpated and subsequently recolonized. To encompass the daily and 
seasonal movements of the majority of individual New Mexico meadow 
jumping mice and allow for the occasional inter-population dispersal to 
occur unimpeded, appropriately sized patches of suitable habitat should 
be no more than 200 m (656 ft) apart within designated waterways (see 
section 2.7.2 ``Habitat Patch and Population Sizes'' in the SSA Report 
(Service 2014)).

Primary Constituent Elements

    Under the Act and its implementing regulations, we are required to 
identify the physical or biological features essential to the 
conservation of the jumping mouse in the geographic area occupied by 
the species at the time of listing, focusing on the features' primary 
constituent elements (PCEs). Primary constituent elements are those 
specific elements of physical or biological features that provide for a 
species' life-history processes and that 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 (see chapter 2 in the SSA Report (Service 
2014)), we determine that the PCEs specific to the jumping mouse 
consist of the following:
    (1) Riparian communities along rivers and streams, springs and 
wetlands, or canals and ditches that contain:
    (a) Persistent emergent herbaceous wetlands especially 
characterized by presence of primarily forbs and sedges (Carex spp. or 
Schoenoplectus pungens); or
    (b) Scrub-shrub riparian areas that are dominated by willows (Salix 
spp.) or alders (Alnus spp.) with an understory of primarily forbs and 
sedges; and
    (2) Flowing water that provides saturated soils throughout the 
jumping mouse's active season that supports tall (average stubble 
height of herbaceous vegetation of at least 61 cm (24 inches)) and 
dense herbaceous riparian vegetation composed primarily of sedges 
(Carex spp. or Schoenoplectus pungens) and forbs, including, but not 
limited to, one or more of the following associated species: Spikerush 
(Eleocharis macrostachya), beaked sedge (Carex rostrata), rushes 
(Juncus spp. and Scirpus spp.), and numerous species of grasses such as 
bluegrass (Poa spp.), slender wheatgrass (Elymus trachycaulus), brome 
(Bromus spp.), foxtail barley (Hordeum jubatum), or Japanese brome 
(Bromus japonicas), and forbs such as water hemlock (Circuta 
douglasii), field mint (Mentha arvense), asters (Aster spp.), or 
cutleaf coneflower (Rudbeckia laciniata); and
    (3) Sufficient areas of 9 to 24 km (5.6 to 15 mi) along a stream, 
ditch, or canal that contain suitable or restorable habitat to support 
movements of individual New Mexico meadow jumping mice; and
    (4) Adjacent floodplain and upland areas extending approximately 
100 m (330 ft) outward from the boundary between the active water 
channel and the floodplain (as defined by the bankfull stage of 
streams) or from the top edge of the ditch or canal.
    This designation is designed to support the necessary life-history 
functions of the subspecies and the areas containing those PCEs in the 
appropriate quantity and spatial arrangement essential for the 
conservation of the subspecies. We determined that these primary 
constituent elements provide for the physiological, behavioral, and 
ecological requirements of the subspecies. New Mexico meadow jumping 
mice require herbaceous riparian vegetation associated with seasonally 
perennial flowing water and adjacent uplands that can support the 
necessary habitat components needed by foraging, breeding, and 
hibernating individuals. Jumping mice must also have sufficient cover 
within which to forage in an appropriate configuration and proximity to 
day, maternal, and hibernation nesting sites. This vegetation enables 
jumping mice to find adequate food resources not only to successfully 
raise young, but also to accumulate sufficient body fat for survival 
during hibernation. The appropriate configuration is provided by 
protecting multiple local subpopulations throughout a minimum length of 
stream, ditch, or canal of 9 to 24 km (5.6 to 15 mi) of suitable 
habitat, as described above, which will ensure sufficient resiliency of 
populations such that the species will be able to withstand and recover 
from periodic disturbances. Therefore, this amount of suitable habitat 
will support multiple local populations throughout each of the 
waterways, thereby increasing the chance of jumping mouse populations 
surviving periodic temporary disturbances of suitable habitat.
    Populations of New Mexico meadow jumping mice with a high 
likelihood of long-term viability require functionally connected areas 
throughout stream reaches, ditches, or canals. This continuous suitable 
habitat is necessary to attain the population sizes and densities 
needed to ensure that the subspecies will persist in the face of 
stochastic events and seasonal fluctuations of food resources. This 
configuration of suitable habitat will encompass the daily and seasonal 
movements of the majority of individual jumping mice and will allow 
occasional inter-population dispersal to occur.

Special Management Considerations or Protection

    When designating critical habitat, we assess whether the specific 
areas within the geographic area occupied by the species at the time of 
listing contain features that are essential to the conservation of the 
species and which may require special management considerations or 
protection. The features essential to the conservation of this species 
may require special management considerations or protection to reduce 
the following threats: Excessive grazing pressure, water use and 
management, highway reconstruction, commercial and residential 
development, severe wildland fires, unregulated recreation, and the 
reduction in the distribution and abundance of beaver ponds. These 
activities have the potential to affect the PCEs if they are conducted 
within or adjacent to units designated as critical habitat.
    Management activities that could ameliorate these threats include, 
but are not limited to: (1) Maintaining occupied jumping mouse sites 
with active

[[Page 14294]]

management to continue the protection of these areas from livestock 
grazing; (2) restoring, enhancing, and managing additional habitat 
through fencing of riparian areas, especially the Santa Fe, Lincoln, 
and Apache-Sitgreaves National Forests (this will facilitate 
restoration of the required vegetative components and support the 
expansion of populations of the jumping mouse into areas that were 
historically occupied by the species, but where natural expansion is 
currently unlikely because no suitable habitat remains); (3) restoring 
habitat on Bosque del Apache NWR or other areas by carefully managing 
mowing (e.g., not mowing during the active season) and removing willows 
older than 5 years to maintain early seral habitat conditions along 
irrigation canals and ditches; and (4) developing and implementing a 
beaver management or restoration plan for occupied and historic jumping 
mouse localities where appropriate. In addition, Federal agencies 
should look to guidance provided by the completed recovery outline 
(available online at http://www.regulations.gov under Docket No. FWS-
R2-ES-2013-0023) and the recovery plan that will be developed for the 
jumping mouse. A more complete discussion of the threats to the jumping 
mouse and its habitats can be found in the SSA Report (Service 2014).

Criteria Used To Identify Critical Habitat

    The following discussion describes the process and methodology that 
we used to identify the areas to propose and finalize critical habitat 
units for the jumping mouse. As required by section 4(b)(2) of the Act, 
we used the best scientific data available to designate critical 
habitat. For this rule, we relied heavily on the analysis of biological 
information reviewed in the SSA Report (Service 2014). In accordance 
with section 3(5)(A) of the Act and its implementing regulation at 50 
CFR 424.12(b), we determined the specific areas within the geographical 
area occupied by the species, at the time it is listed, where are found 
the physical or biological features that are essential to the 
conservation of the species and which may require special management 
considerations or protections. Next, we determined the specific areas 
outside the geographical area occupied by the species at the time it is 
listed that are found to be essential for the conservation of the 
species. Finally, we described how we determined the lateral extent and 
mapping processes used in developing the critical habitat units.
Occupied Areas--Section 3(5)(A)(i) of the Act
    Our initial step was to determine what areas are within the 
geographic area occupied by the jumping mouse at the time of listing 
(occupied areas). In reviewing all of the available data on jumping 
mouse occurrences, we decided that verified collections of the species 
between 2005 to 2014 would be used to identify the areas considered 
occupied by the jumping mouse at the time of listing. This timeframe 
was selected because we found no capture records of jumping mice 
between 1996 and 2005. For a detailed review of this assessment, see 
chapter 3 of the SSA Report (Service 2014), where we referenced 
historical records as those from the 1980s and 1990s, and current 
records as those verified from 2005 to 2014. This assessment resulted 
in 29 locations of the jumping mouse considered occupied at the time of 
listing. However, there is uncertainty regarding the current status of 
the 29 populations that have been found since 2005 because 11 of the 29 
populations and their habitat have been substantially compromised since 
2011 (due to water shortages, grazing, or wildfire and postfire 
flooding), and these populations could already be extirpated. Moreover, 
an additional seven populations may continue to experience loss of 
habitat from postfire flooding in the near term. Nevertheless, there is 
no information that shows the jumping mouse to be extirpated from any 
of these 29 locations, so we conclude that the best available 
information supports that these areas are within the geographic area 
occupied by the jumping mouse at the time of listing.
    The areas considered occupied include the 29 locations that contain 
suitable habitat plus an additional 0.8-km (0.5-mi) segment upstream 
and downstream of these capture localities. These additional 0.8-km 
(0.5-mi) segments are considered occupied because this is approximately 
the maximum distance travelled between two successive points by all 
radio-collared jumping mice on Bosque del Apache NWR, which was 744 m 
(2,441 ft) (Frey and Wright 2012, pp. 16, 109; Figure 9). Although the 
subspecies usually exhibits extreme site fidelity with regular daily 
and seasonal movements of less than 100 m (330 feet) (Frey and Wright 
2012, pp. 16, 109), these additional 0.8-km (0.5-mi) segments have the 
potential to be occupied during the active season of the subspecies if 
a jumping mouse moves the known maximum distance beyond the protective 
herbaceous cover found within the 29 locations. For each of the 
occupied areas, we next decided whether these areas contain the PCEs of 
the physical and biological features, which may require special 
management considerations or protections. As noted, all of the 29 
locations found since 2005 are considered currently occupied by the 
jumping mouse and contain the PCEs 1 and 2. Each of these 29 locations 
documented since 2005 occur within eight critical habitat units. Three 
of these eight units have multiple subunits, bringing the total number 
of units and subunits to 21. Two of these subunits are considered 
unoccupied (discussed below), and the remaining 19 subunits contain the 
29 locations documented since 2005. For a site-by-site analysis of the 
29 locations, see chapter 4 of the SSA Report (Service 2014).
Partially Occupied Areas--Section 3(5)(A)(ii) of the Act
    We then decided which areas that are outside the geographic area 
occupied by the species at the time of listing (unoccupied areas) are 
essential for the conservation of the jumping mouse. We first 
determined that, because of the loss of a substantial number 
(approximately 70) of historically occupied locations of the jumping 
mouse (Service 2014, chapter 4), the number and distribution of 
populations need to increase at all of the currently occupied areas for 
the jumping mouse to be viable. Increased populations at these areas 
are needed to maintain sufficient redundancy and representation to 
provide for the subspecies' viability (see chapters 3 and 6 of the SSA 
Report (Service 2014)). However, the areas occupied by the mouse since 
2005 do not contain enough suitable, connected habitat to support 
resilient populations of jumping mouse (see chapter 3 of the SSA Report 
(Service 2014)).
    Because the subspecies needs multiple local populations along 
streams and other waterways to maintain genetic diversity and provide 
sources for recolonization when local populations are extirpated, areas 
adjacent to the 29 locations (including the 0.8-km (0.5-mi) areas) are 
essential to the conservation of the subspecies to provide for 
population resiliency and subspecies viability. We found that it is 
essential for the conservation of the jumping mouse to expand its 
occupied habitats into areas considered currently unoccupied, but 
within its historical range. The inclusion of essential but unoccupied 
areas will not only protect these areas and provide habitat for 
population expansion from the 29 locations documented since 2005, but

[[Page 14295]]

also provide sites for possible future reintroduction that will improve 
the subspecies' status through added population resiliency. For 
example, when unoccupied habitat is restored, the jumping mouse would 
have the ability to expand beyond the 0.8-km (0.5-mi) areas surrounding 
each of the 29 locations and populate the additional areas along the 
individual stream reaches or waterways. Consequently, the currently 
unoccupied areas within individual stream reaches or waterways need to 
be of sufficient size to allow for the expansion of current and future 
populations and provide connectivity (active season movements and 
dispersal) between multiple populations as they become established.
    So for each of the 19 units (encompassing 29 locations) considered 
occupied, we include areas that are considered unoccupied that are 
adjacent to the occupied areas in designated critical habitat units. 
The currently occupied areas contain PCEs 1 and 2. However, the 
unoccupied areas are essential for the conservation of the subspecies, 
and the all of the PCEs (1, 2, 3, and 4) can be restored along streams 
and other waterways within these unoccupied areas. Each of these 19 
units are considered ``partially occupied'' because they include some 
small areas (within the 0.8-km (0.5-mi) areas) that have been occupied 
by the species since 2005, and other larger areas upstream or 
downstream (beyond the 0.8-km (0.5-mi) areas) that are not known to be 
occupied by the jumping mouse at the time of listing.
    To decide what geographic areas of unoccupied habitat upstream and 
downstream adjacent to occupied areas should be included in critical 
habitat units, we focused on areas that had historical collection 
records confirmed to be the jumping mouse. Historic capture locations 
were then used to approximate previously occupied habitat and guide our 
designation of unoccupied critical habitat areas. Within the historic 
range of the subspecies, we then identified areas of potential habitat 
that have been recently restored, areas that likely still contain the 
habitat characteristics sufficient to support the life history of the 
subspecies, and areas where functionally connected patches of suitable 
habitat will be required to provide for resilient populations and to 
conserve the subspecies.
    In considering how much area to include in critical habitat units 
we considered how much suitable habitat might be needed to support 
resilient populations. Based upon review of the available information, 
jumping mouse populations generally need connected areas of suitable 
habitat along at least 9 to 24 km (5.6 to 15 mi) of continuous suitable 
habitat to support viable populations of jumping mice with a high 
likelihood of long-term persistence (see section 2.7 of the SSA Report 
(Service 2014)). This stream length will increase the probability of 
the populations to withstand catastrophic events such as wildfire. We 
used this length as a general guide for determining critical habitat 
units and subunits along waterways, but each unit and subunit were 
evaluated on a site-by-site basis to determine the best configuration 
of critical habitat to support jumping mouse populations in that unit 
or subunit.
    In designating critical habitat boundaries, we also considered the 
need for movement and dispersal to occur between suitable habitat areas 
within a critical habitat unit or subunit. We do not anticipate that 
suitable habitat containing dense riparian herbaceous vegetation will 
be continuous throughout each of the critical habitat units, but 
rather, that suitable habitat should be dispersed throughout waterways 
in the critical habitat units to allow for natural behaviors and 
perhaps occasional longer distance (i.e., from 200 to 700 m (656 to 
2,297 ft)) exploratory movements (Frey and Wright 2012, p. 109), 
including dispersal.
    These movement and dispersal corridors are needed to connect 
occupied sites to one another within individual units (see section 2.6 
of the SSA Report (Service 2014)). Historically, populations were 
likely distributed throughout drainages, with a series of 
interconnected local populations (also called subpopulations) occupying 
suitable habitat patches within individual streams. Interconnected 
local populations were likely arranged within suitable habitat patches 
along streams in such a way that individuals could fulfill their daily 
and seasonal movements of about 200 m (656 ft), but also occasionally 
move greater distances (i.e., 200 to 744 m (656 to 2,441 ft)) to 
disperse to other habitat patches within stream areas (Frey and Wright 
2012, p. 109). This ability to have multiple local populations is 
important to maintaining genetic diversity within the populations along 
streams and providing sources for recolonization when local populations 
are extirpated. For example, if a site is extirpated, recolonization 
from persisting local source populations within the same general area 
would have to occur along riparian corridors that contain suitable 
habitat (Frey 2011, p. 41).
    Based on the above information, the most likely routes for 
dispersal of jumping mice among sites would occur along perennial or 
intermittent drainages where suitable habitat is present or restorable. 
Although we did not select specific areas in which to designate 
movement corridors (but rather geographic areas of suitable habitat 
along at least 9 to 24 km (5.6 to 15 mi)), we assumed perennial 
drainages are better movement corridors than ephemeral or intermittent 
drainages, and the ephemeral or intermittent drainages are better 
movement corridors than upland routes. We also assume that, if all else 
is equal, the shorter the route the more likely New Mexico meadow 
jumping mice will successfully move. Because jumping mouse habitat is 
subject to the dynamic process of flooding, inundation, and drought, 
the extent and location of riparian corridors along streams and rivers 
may not remain constant and, depending on local conditions, are likely 
to expand and contract. Nevertheless, areas containing suitable habitat 
should be no more than 200 m (656 ft) apart within these waterways, 
which would encompass the majority of daily and seasonal movements of 
individual jumping mice (Wright and Frey 2012, p. 109). This 
configuration of habitat provides for a local population to be 
``functionally connected'' (as described in the SSA Report (Service 
2014)), such that the movements of the majority of individual jumping 
mice and perhaps occasional interpopulation dispersal occur unimpeded.
    As a result of this analysis, we have determined that some of the 
areas within the critical habitat units are essential for the 
conservation of the species even though they do not contain currently 
suitable habitat and are more than 0.8 km (0.5 mi) away from occupied 
sites. For example, within Unit 2, we include the Harold Brock Fishing 
Easement that is located between the two sites that we consider 
occupied on Coyote Creek. The fishing easement is considered unoccupied 
because there are no current records indicating this area is occupied, 
it does not currently contain suitable habitat, and it is beyond the 
distance travelled by jumping mice for the majority of daily and 
seasonal movements within the two occupied sites along Coyote Creek. 
Restoring currently degraded habitat in units like Coyote Creek is 
essential to the conservation of the subspecies because it expands the 
available habitat within a given unit that can be occupied by the 
subspecies and

[[Page 14296]]

provides for potentially increasing population size within that 
riparian system. Increased population sizes are essential to conserving 
the subspecies as higher numbers of individuals in the populations 
increases the likelihood of the persistence of the populations over 
time, increasing population resiliency.
Completely Unoccupied Areas--Section 3(5)(A)(ii) of the Act
    We next considered whether there were any other areas within the 
species' historical range but outside of the geographic area occupied 
at the time of listing (in other words completely unoccupied areas) 
that are essential for the conservation of the jumping mouse. We 
examined whether resilient populations at the 19 partially occupied 
units and subunits (with 29 locations occupied since 2005) would be 
sufficient to provide for viability of the jumping mouse. We reviewed 
the current and historical distribution of the subspecies within each 
of the eight geographic management areas across its range and the need 
for sufficient redundancy for the jumping mouse (see chapter 3 of the 
SSA Report (Service 2014)). We found five of the eight geographic 
management areas would have sufficient populations to support species 
viability if the current jumping mouse areas were expanded to provide 
for resilient populations. The three exceptions where the historic 
distribution is not adequately represented by recently located 
populations were in the Jemez Mountains, the Sacramento Mountains, and 
the Rio Grande geographic management areas. We found that the 
conservation of the subspecies requires increasing the number and 
distribution of populations of the jumping mouse to allow for the 
restoration of new populations and expansion of current populations 
into areas that were historically occupied within the Jemez Mountains, 
Sacramento Mountains, and the middle Rio Grande.
    On June 20, 2013 (78 FR 37328), we proposed four subunits (3C, 4B, 
6A, and 6B) within three geographic management areas that are 
completely unoccupied, but are essential for the conservation of the 
jumping mouse. Inclusion of these areas provides for expansion of the 
overall geographic distribution of the species and increases the 
redundancy within these geographic management areas. Much of the 
habitat within these four unoccupied subunits contained New Mexico 
meadow jumping mice as recently as the late 1980s (Morrison 1985, 
entire; 1988, pp. 22-35; 1989, pp. 7-23; 1992, p. 311; Frey 2005a, p. 
7). In this rule, we have excluded proposed subunits 6A and 6B (Isleta 
Pueblo and Ohkay Owingeh) from the final designation under section 
4(b)(2) of the Act because the benefits of exclusion outweigh the 
benefits of including these areas as critical habitat (see Tribal 
Lands--Exclusions Under Section 4(b)(2) of the Act, below).
    In evaluating what areas are essential for jumping mouse, we are 
not designating as critical habitat a number of historical locations of 
the jumping mouse because we do not think they are essential for 
conservation of the species. These omitted locations are, compared to 
other habitat segments, of lesser quality, have a low potential of 
being restored, and would not contribute to connectivity, stability, or 
protection against catastrophic loss. Consequently, we are not 
designating other historical locations along riparian areas as critical 
habitat because we did not find them to be essential for conservation 
of the jumping mouse. The currently unoccupied units that are included 
in this final designation (Subunits 3C and 4B) both contain perennial 
flowing water with saturated soils, making these units highly 
restorable and essential for the conservation of the species.
Lateral Extent
    To allow normal behavior, to ensure protection of the jumping mouse 
and the physical and biological habitat features, and to ensure 
maintenance of sufficient PCEs on which the subspecies depends, the 
outward, lateral extent of critical habitat from the riparian habitats 
should at least approximate the 100-year floodplain. Unfortunately, 
floodplains have not been mapped for many streams within the jumping 
mouse's range. While alternative delineation of critical habitat based 
on geomorphology and existing vegetation could accurately portray the 
presence and extent of required habitat components, we lack the 
explicit data to allow us to conduct such a delineation of critical 
habitat on a site-by-site basis. To address these issues, we use a set 
distance of 100 m (328 ft) outward from either side of the bankfull 
stage, which is defined as the boundary between the active water 
channel (i.e., river or stream) and the floodplain (Moody et al. 2003, 
entire). Moreover, some locations are associated with canals and 
ditches (e.g., Bosque del Apache NWR) that are manmade and do not have 
any associated floodplain. For ditches or canals we use a set distance 
of 100 m (328 ft) outward from the top edge of the ditch or canal 
because there is no bankfull stage. We consider this width necessary to 
accommodate not only stream meandering and high flows within natural 
waterways, but also to capture essential upland areas to ensure that 
this designation contains the features essential to all of the life-
history stages (e.g., foraging, breeding, and hibernation) and the 
conservation of the subspecies (see chapter 3 of the SSA Report 
(Service 2014)). While this lateral extent of critical habitat may not 
extend outward to all areas used by individual jumping mice over time, 
we expect that it will support the full range of PCEs essential for 
conservation of jumping mouse populations in these reaches.
    Bankfull stage is defined as the upper level of the range of 
channel-forming flows, which transport the bulk of available sediment 
over time. Bankfull stage is generally considered to be that level of 
stream discharge reached just before flows spill out onto the adjacent 
floodplain. The discharge that occurs at bankfull stage, in combination 
with the range of flows that occur over a length of time, govern the 
shape and size of the river channel (Rosgen 1996, pp. 2-2 to 2-4). The 
use of bankfull stage and 100 m (328 ft) on either side recognizes the 
naturally dynamic nature of riverine systems, recognizes that 
floodplains are an integral part of the stream ecosystem, and contains 
the area and associated features essential to the conservation of the 
subspecies. The location of the bankfull stage is not an ephemeral 
feature, meaning it does not disappear. Bankfull stage can be 
determined and delineated for any stream and for the canals and ditches 
we are designating as critical habitat. There are consistent indicators 
or physical evidence (e.g., deposition features, slopes of stream 
banks, and vegetation) and regional relationships that help to identify 
the bankfull stage in the arid southwest (Moody et al. 2003, entire). 
We acknowledge that the bankfull stage of any given segment may change 
depending on the magnitude of a flood event, but it is a definable and 
standard measurement for stream systems. Following high flow events, 
stream channels can move from one side of a canyon to the opposite 
side, for example. If we were to designate critical habitat based on 
the location of the stream on a specific date, the area within the 
designation could be a dry channel in less than 1 year from the 
publication of the determination, should a high flow event occur.
Mapping
    The critical habitat units were first delineated by creating rough 
areas for each unit by screen-digitizing polygons using Google Earth. 
We then digitized and refined the units using ArcMap version 10 
(Environmental Systems

[[Page 14297]]

Research Institute, Inc.), a computer GIS program. The polygons were 
created by using current (2005 to 2014) and historical (1985 to 1996) 
species location points. No New Mexico meadow jumping mice were 
captured between 1996 and 2005, and so the delineation of current and 
historic is based on dates of capture records or lack of capture 
records. These current and historic location points were then used in 
conjunction with hydrology, vegetation, and expert opinion.
    We set the limits of each critical habitat unit by identifying 
landmarks (islands, confluences, roadways, crossings, dams) that 
clearly delineated each area. Stream confluences are often used to 
delineate the boundaries of a unit for an aquatic species because the 
confluence of a tributary typically marks a significant change in the 
size or habitat characteristics of the stream. Stream confluences are 
also logical and recognizable termini. When a named tributary was not 
available, or if another landmark provided a more recognizable 
boundary, we used that landmark as a boundary.
    When current or historical locations of New Mexico meadow jumping 
mice were used to delineate upstream and downstream boundaries of 
critical habitat, we extended the boundaries by about 0.8 km (0.5 mi) 
to encompass areas that have the potential to be occupied during the 
active season of the species. We then refined the starting and end 
points by evaluating appropriate habitat conditions based on the 
presence or absence of perennial water or suitable vegetation. We 
selected upstream and downstream cutoff points that would avoid 
including highly degraded areas that are not likely restorable. For 
example, we did not include areas that were permanently dewatered or 
permanently developed (i.e., natural vegetation removed), or areas in 
which there was some other indication that suitable habitat no longer 
existed and was not likely to be restored.
    When determining critical habitat boundaries, we also made every 
effort to avoid including developed areas such as lands covered by 
buildings, pavement, and other structures because such lands lack 
physical or biological habitat features for the jumping mouse. 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 final rule and are not designated as critical 
habitat. Therefore, a Federal action involving these lands would not 
trigger section 7 consultation with respect to critical habitat and the 
requirement of no adverse modification unless the specific action would 
affect the physical or biological features in the adjacent critical 
habitat.
Summary
    In summary, we are designating as critical habitat those geographic 
areas that we have determined to be occupied by the jumping mouse at 
the time of listing and that contain sufficient elements of physical or 
biological features to support life-history processes essential for the 
conservation of the species and require special management. We are also 
designating as critical habitat additional areas that are considered 
presently unoccupied, but are essential to the conservation of the 
jumping mouse.
    The critical habitat designation is defined by the maps, as 
modified by any accompanying regulatory text, presented in the 
Regulation Promulgation section of this rule. We will make the 
coordinates or plot points or both on which each map is based available 
to the public on http://www.regulations.gov under Docket No. FWS-R2-ES-
2013-0014, at http://www.fws.gov/southwest/es/NewMexico/, and at the 
New Mexico Ecological Services Field Office (see FOR FURTHER 
INFORMATION CONTACT, above).

Final Critical Habitat Designation

    We are designating approximately 5,657 hectares (13,973 acres) 
along 272.4 kilometers (169.3 miles) of flowing streams, ditches, and 
canals in eight units as critical habitat for the jumping mouse in the 
States of Colorado, New Mexico, and Arizona. Units 3, 4, and 5 have 
subunits, resulting in a total of 21 subunits and units designated. The 
critical habitat areas we describe below constitute our current best 
assessment of areas that meet the definition of critical habitat for 
the jumping mouse. The units we designate as critical habitat and the 
approximate area of each critical habitat unit and land ownership are 
shown in Table 1. A summary of the areas by land ownership and State 
are provided in Table 2.

                     Table 1--Critical Habitat Units for the New Mexico Meadow Jumping Mouse
                    [Area estimates reflect all land within critical habitat unit boundaries]
----------------------------------------------------------------------------------------------------------------
                                     Occupied at the time                            Length of
          Stream segment                  of listing           Land ownership      unit, km (mi)   Area, ha (ac)
----------------------------------------------------------------------------------------------------------------
                                             Unit 1--Sugarite Canyon
----------------------------------------------------------------------------------------------------------------
Chicorica Creek...................  Partial...............  State of New Mexico.  ..............       229 (567)
                                                            State of Colorado...  ..............       114 (282)
                                                                                 -------------------------------
    Total Unit 1..................  ......................  ....................      13.0 (8.1)       344 (849)
----------------------------------------------------------------------------------------------------------------
                                              Unit 2--Coyote Creek
----------------------------------------------------------------------------------------------------------------
Coyote Creek......................  Partial...............  State of New Mexico.  ..............         26 (64)
                                                            Private.............  ..............       213 (527)
                                                                                 -------------------------------
    Total Unit 2..................  ......................  ....................      11.8 (7.4)       239 (591)
----------------------------------------------------------------------------------------------------------------
                                             Unit 3--Jemez Mountains
----------------------------------------------------------------------------------------------------------------
Subunit 3A--San Antonio:
    San Antonio Creek.............  Partial...............  Forest Service......  ..............       223 (550)
                                                            Private.............  ..............         10 (26)
                                                            Other Federal Agency  ..............           1 (3)

[[Page 14298]]

 
        Total Subunit 3A..........  ......................  ....................      11.5 (7.1)       234 (579)
                                                                                 -------------------------------
Subunit 3B--Rio Cebolla:
    Rio Cebolla...................  Partial...............  Forest Service......  ..............       278 (686)
                                                            Private.............  ..............        76 (187)
                                                            State of New Mexico.  ..............        76 (187)
                                                                                 -------------------------------
        Total Subunit 3B..........  ......................  ....................     20.7 (12.9)     429 (1,060)
Subunit 3C--Rio de las Vacas:
    Rio de las Vacas..............  No....................  Forest Service......  ..............       332 (820)
                                                            Private.............  ..............       122 (302)
                                                                                 -------------------------------
        Total Subunit 3C..........  ......................  ....................     23.3 (14.5)     454 (1,122)
                                                                                 -------------------------------
            Total Unit 3..........  ......................  ....................     55.5 (34.5)   1,118 (2,761)
----------------------------------------------------------------------------------------------------------------
                                          Unit 4--Sacramento Mountains
----------------------------------------------------------------------------------------------------------------
Subunit 4A--Silver Springs:
    Silver Springs Creek..........  Partial...............  Forest Service......  ..............         28 (70)
                                                            Private.............  ..............        77 (190)
                                                                                 -------------------------------
        Total Subunit 4A..........  ......................  ....................       5.2 (3.2)       105 (260)
Subunit 4B--Upper Pe[ntilde]asco:
    Rio Pe[ntilde]asco............  No....................  Forest Service......  ..............       118 (291)
                                                            Private.............  ..............         18 (44)
                                                                                 -------------------------------
        Total Subunit 4B..........  ......................  ....................       6.4 (4.0)       136 (335)
Subunit 4C--Middle Pe[ntilde]asco:
    Rio Pe[ntilde]asco............  Partial...............  Forest Service......  ..............         26 (65)
                                                            Private.............  ..............       238 (587)
                                                                                 -------------------------------
        Total Subunit 4C..........  ......................  ....................      11.4 (7.1)       264 (652)
Subunit 4D--Wills Canyon:
    Mauldin Springs...............  Partial...............  Forest Service......  ..............        65 (162)
                                                            Private.............  ..............        46 (113)
                                                                                 -------------------------------
        Total Subunit 4D..........  ......................  ....................       5.5 (3.4)       111 (275)
Subunit 4E--Agua Chiquita Canyon:
    Agua Chiquita Creek...........  Partial...............  Forest Service......  ..............       161 (398)
                                                                                 -------------------------------
        Total Subunit 4E..........  ......................  ....................       7.7 (4.8)       161 (398)
                                                                                 -------------------------------
            Total Unit 4..........  ......................  ....................     36.2 (22.5)     777 (1,920)
----------------------------------------------------------------------------------------------------------------
                                             Unit 5--White Mountains
----------------------------------------------------------------------------------------------------------------
Subunit 5A--Little Colorado:
    Little Colorado River.........  Partial...............  Forest Service......  ..............     445 (1,100)
                                                            Private.............  ..............         33 (81)
                                                                                 -------------------------------
    Total Subunit 5A..............  ......................  ....................     22.6 (14.0)     478 (1,181)
Subunit 5B--Nutrioso:
    Nutrioso River................  Partial...............  Forest Service......  ..............       142 (351)
                                                            Private.............  ..............       271 (670)
                                                                                 -------------------------------
        Total Subunit 5B..........  ......................  ....................     20.4 (12.7)     413 (1,021)
Subunit 5C--San Francisco:
    San Francisco River...........  Partial...............  Forest Service......  ..............        68 (167)
                                                            Private.............  ..............       184 (455)
                                                                                 -------------------------------
        Total Subunit 5C..........  ......................  ....................      11.8 (7.3)       252 (622)
Subunit 5D--East Fork Black:
    East Fork Black River.........  Partial...............  Forest Service......  ..............     421 (1,040)
                                                                                 -------------------------------
        Total Subunit 5D..........  ......................  ....................     20.3 (12.6)     421 (1,040)
Subunit 5E--West Fork Black:
    West Fork Black River.........  Partial...............  Forest Service......  ..............     415 (1,025)
                                                            Private.............  ..............         17 (43)

[[Page 14299]]

 
                                                            State of Arizona....  ..............        49 (120)
                                                                                 -------------------------------
        Total Subunit 5E..........  ......................  ....................     23.0 (14.3)     481 (1,188)
Subunit 5F--Boggy and Centerfire:
    Boggy and Centerfire Creeks...  Partial...............  Forest Service......  ..............       197 (485)
                                                                                 -------------------------------
        Total Subunit 5F..........  ......................  ....................       8.9 (5.5)       197 (485)
Subunit 5G--Corduroy:
    Corduroy Creek................  Partial...............  Forest Service......  ..............       104 (256)
                                                                                 -------------------------------
        Total Subunit 5G..........  ......................  ....................       4.8 (3.0)       104 (256)
Subunit 5H--Campbell Blue:
    Campbell Blue Creek...........  Partial...............  Forest Service......  ..............       100 (247)
                                                            Private.............  ..............           2 (6)
                                                                                 -------------------------------
        Total Subunit 5H..........  ......................  ....................       4.8 (3.0)       102 (253)
                                                                                 -------------------------------
            Total Unit 5..........  ......................  ....................    116.6 (72.4)   2,448 (6,046)
----------------------------------------------------------------------------------------------------------------
                                          Unit 6--Bosque del Apache NWR
----------------------------------------------------------------------------------------------------------------
Canal.............................  Partial...............  Service.............  ..............       403 (995)
                                                                                 -------------------------------
    Total Unit 6..................  ......................  ....................     21.1 (13.1)       403 (995)
----------------------------------------------------------------------------------------------------------------
                                                 Unit 7--Florida
----------------------------------------------------------------------------------------------------------------
Florida River.....................  Partial...............  Private.............  ..............       251 (620)
                                                            Bureau of Land Mgt..  ..............           3 (6)
                                                                                 -------------------------------
    Total Unit 7..................  ......................  ....................      13.6 (8.4)       253 (626)
----------------------------------------------------------------------------------------------------------------
                                             Unit 8--Sambrito Creek
----------------------------------------------------------------------------------------------------------------
Sambrito Creek....................  Partial...............  State of Colorado...  ..............        61 (150)
                                                            Private.............  ..............         14 (35)
                                                                                 -------------------------------
    Total Unit 8..................  ......................  ....................       4.6 (2.9)        75 (185)
                                                                                 -------------------------------
        Grand Total All Units.....  ......................  ....................   272.4 (169.3)  5,657 (13,973)
----------------------------------------------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.


 Table 2--Critical Habitat Units for the New Mexico Meadow Jumping Mouse, Summarized by Land Ownership and State
----------------------------------------------------------------------------------------------------------------
                                                                      Land ownership, ha (ac)
                      State                      ---------------------------------------------------------------
                                                      Federal          State          Private          Total
----------------------------------------------------------------------------------------------------------------
New Mexico......................................   1,635 (4,040)       331 (818)     800 (1,976)   2,766 (6,834)
Arizona.........................................   1,892 (4,671)        49 (120)     507 (1,255)   2,448 (6,046)
Colorado........................................           3 (6)       175 (432)       265 (655)     443 (1,093)
                                                 ---------------------------------------------------------------
    Total.......................................   3,530 (8,717)     555 (1,370)   1,572 (3,886)  5,657 (13,973)
----------------------------------------------------------------------------------------------------------------

Unit Descriptions

    We present brief descriptions of each of the critical habitat 
units, and reasons why they meet the definition of critical habitat for 
the jumping mouse, below. For additional information on each unit, see 
chapter 4 in the SSA Report (Service 2014).
    We consider the 29 locations where the jumping mouse has been found 
since 2005 to be within the geographic area occupied at the time of 
listing (occupied areas). All of these 29 occupied areas are contained 
within 19 of the 21 critical habitat units that we refer to as 
partially occupied in Table 1. There are two completely unoccupied 
subunits (Subunit 3C--Rio de las Vacas, and Subunit 4B--Upper 
Pe[ntilde]asco). We specifically describe each of the occupied areas 
within the critical habitat unit descriptions presented below. All of 
these occupied areas contain suitable habitat with one or more of the 
essential physical or biological features that may require special 
management and are, therefore, included in the designation under 
section 3(5)(A)(i) of the Act. All of these occupied areas exhibit both 
PCE 1--

[[Page 14300]]

appropriate wetland vegetation communities, and PCE 2--flowing water 
with tall herbaceous vegetation. The occupied areas within these 19 
units may require special management or protection to address the 
direct or indirect loss or alteration of the essential physical and 
biological features. These special management considerations or 
protections may be needed to address water development, recreational 
use, livestock grazing, road reconstruction, the loss of beaver ponds, 
and vegetation mowing.
    Every critical habitat unit contains areas outside the geographic 
area occupied by the species at the time of listing (unoccupied areas) 
that we conclude are essential for the conservation of the jumping 
mouse. As noted, two of these units (Subunits 3C and 4B) are considered 
completely unoccupied. The remaining 19 critical habitat subunits 
include unoccupied areas that are upstream or downstream of the 
occupied areas, but do not currently have the necessary vegetation to 
protect jumping mice from predators or to provide food sources. We 
describe these subunits containing both occupied and unoccupied areas 
within the same stream reach as partially occupied (Table 1). All of 
the completely or partially occupied areas currently have flowing water 
to allow for future restoration of the PCEs 1 and 2, as well as PCE 3--
sufficient areas of streams, ditches, or canals; and PCE 4--adjacent 
floodplain and upland areas that would collectively provide the needed 
physical and biological features of habitat required to sustain the 
species' life-history processes.
    We conclude that all of these areas, whether they are within 
partially occupied or completely unoccupied units, are essential to the 
conservation of the jumping mouse because: (1) The areas occupied by 
the mouse since 2005 do not contain enough suitable, connected habitat 
to support resilient populations of jumping mouse; (2) the currently 
unoccupied segments within individual stream reaches or waterways need 
to be of sufficient size to allow for the expansion of populations and 
provide connectivity (active season movements and dispersal) between 
multiple populations as they become established; (3) additional areas 
need habitat protection to allow restoration of the necessary 
herbaceous vegetation for possible future reintroductions; and (4) 
multiple local populations along streams are important to maintaining 
genetic diversity within the populations and for providing sources for 
recolonization if local populations are extirpated. Therefore, all of 
the partially occupied or completely unoccupied areas are included in 
the designation under section 3(5)(A)(ii) of the Act.
Unit 1--Sugarite Canyon
    Unit 1 consists of 344 ha (849 ac) along 13.0 km (8.1 mi) of 
streams on private lands and areas owned by the States of Colorado and 
New Mexico. The Colorado stream areas are found within Las Animas 
County, Colorado, and the New Mexico stream areas are found within 
Colfax County, New Mexico. The unit begins 0.6 km (0.4 mi) north of the 
headwaters of Lake Dorothey, Colorado, along the East Fork and 1.1 km 
(0.7 mi) north of the headwaters of Lake Dorothey along the West Fork 
of Schwacheim Creek and follows the drainage downstream, to include a 
2.0-km (1.25-mi) segment of Chicorica Creek that is a tributary flowing 
into the headwaters of Lake Maloya and a 0.8-km (0.5-mi) segment of 
Segerstrom Creek, which is a tributary flowing into the western edge of 
Lake Maloya, New Mexico. The unit continues through Lake Maloya and 
includes about 1.8 km (1.1 mi) of the small western tributary Soda 
Pocket Creek, which flows into and includes lower Chicorica Creek below 
Lake Maloya Dam downstream to the terminus of the area at Lake Alice 
Dam within Sugarite Canyon State Park.
    Based upon captures of the jumping mouse since 2005 (Frey 2006d, 
pp. 19-21, 67; Frey and Kopp 2013, entire; Colorado Parks and Wildlife 
2013a, p. 1) approximately 2.8 ha (7 ac) within Unit 1 are considered 
occupied at the time of listing and contain suitable habitat. The 
occupied areas occur within Sugarite Canyon State Park in New Mexico 
along Sugarite Canyon at five locations: (1) Chicorica Creek 0.6 km 
(0.4 mi) below Lake Maloya Dam; (2) Segerstrom Creek just above the 
western confluence with Lake Maloya; (3) the headwaters of Lake Alice; 
and (4) Soda Pocket Creek and Campground along the two streams (2 
separate locations) that cross the open meadow on Barlett Mesa near the 
campfire program area and behind campsite number 16 (Frey 2006d, pp. 
19-21, 67; Frey and Kopp 2013, entire; Colorado Parks and Wildlife 
2013a, p. 1). In 2011, the Track Fire burned nearly the entire 
watershed of Sugarite Canyon, significantly impacting the population at 
Sugarite Canyon State Park (Frey and Kopp 2013, entire; Service 2013c, 
entire). We consider this area within the geographical area occupied by 
the jumping mouse at the time of listing. The features essential to the 
conservation of this subspecies may require special management 
considerations or protection to reduce the following threats: Severe 
wildland fires, recreation, grazing, water use and management, floods, 
the reduction in the distribution and abundance of beaver ponds, and 
coalbed methane development. The occupied areas are centered around the 
five capture locations plus an additional 0.8-km (0.5-mi) segment 
upstream and downstream of each of these areas where the physical and 
biological features of critical habitat are found. The remaining 
unoccupied areas within Unit 1 are found both upstream and downstream 
of the occupied areas, and are considered essential to the conservation 
of the jumping mouse (as described under the heading Unit Descriptions, 
above).
Unit 2--Coyote Creek
    Unit 2 consists of 239 ha (591 ac) along 11.8 km (7.4 mi) of Coyote 
Creek on private lands and an area owned by the State of New Mexico 
within Mora County. The unit begins at the confluence of Little Blue 
Creek and Coyote Creek and extends downstream to about the terminus 
just south of the Village of Guadalupita.
    Based upon captures of the jumping mouse since 2006 (Frey 2006d, 
pp. 24, 70; Frey 2012, p. 6), approximately 1.7 ha (4.3 ac) within Unit 
2 are considered occupied at the time of listing and contain suitable 
habitat. The occupied areas occur within Coyote Creek State Park and 
several miles north of the park along Highway 434 in New Mexico at two 
locations along Coyote Creek including: (1) An area that contains 
extensive beaver ponds, dams, and canals and is located between the 
only vehicle bridge within the southwestern part of Coyote Creek State 
Park and the southern boundary of the park; and (2) within another area 
that contains extensive beaver activity about 1.9 km (1.2 mi) south of 
the confluence of Little Blue Creek and Coyote Creek. The features 
essential to the conservation of this subspecies may require special 
management considerations or protection to reduce the following 
threats: Severe wildland fires, recreation, grazing, water use and 
management, floods, the reduction in the distribution and abundance of 
beaver ponds, and development. The occupied areas are centered around 
the two capture locations plus an additional 0.8-km (0.5-mi) segment 
upstream and downstream of these areas where the physical and 
biological features of critical habitat are found. The remaining 
unoccupied areas within Unit 2 are found both upstream and downstream 
of the occupied areas, and are considered essential to the conservation

[[Page 14301]]

of the jumping mouse (as described under the heading Unit Descriptions, 
above).
Unit 3--Jemez Mountains
    Unit 3 consists of 1,118 ha (2,761 ac) along 55.5 km (34.5 mi) of 
streams within three subunits on private lands and areas owned by the 
Forest Service and the State of New Mexico within Sandoval County, New 
Mexico. Areas designated as critical habitat for the jumping mouse in 
this unit incorporate the only habitat known to be occupied by the 
species since 2005 within the Jemez Mountains with the capability to 
support the breeding and reproduction of the species.
    Subunit 3A--San Antonio: Subunit 3A consists of 234 ha (579 ac) 
along 11.5 km (7.1 mi) of San Antonio Creek on private lands and areas 
owned by the Forest Service. This subunit begins along the northern 
part of San Antonio Creek where it exits the boundary of the Valles 
Caldera National Preserve and follows the creek through mostly Forest 
Service lands where it meets private land immediately downstream of the 
San Antonio Campground.
    Based upon the capture of one jumping mouse since 2005 (Frey 2005a, 
pp. 15, 24, 58), approximately 0.4 ha (1 ac) within Subunit 3A are 
considered occupied at the time of listing and contain suitable 
habitat. The occupied area is located along San Antonio Creek within a 
wet meadow near the southwestern part of San Antonio Campground (Frey 
2005a, pp. 15, 24, 58). The features essential to the conservation of 
this subspecies may require special management considerations or 
protection to reduce the following threats: Severe wildland fires, 
recreation, grazing, floods, and the reduction in the distribution and 
abundance of beaver ponds. The occupied area is centered around the one 
capture location plus an additional 0.8-km (0.5-mi) segment upstream 
and downstream of this area where the physical and biological features 
of critical habitat are found. The remaining unoccupied areas within 
Subunit 3A are found both upstream and downstream of the occupied area, 
and are considered essential to the conservation of the jumping mouse 
(as described under the heading Unit Descriptions, above).
    Subunit 3B--Rio Cebolla: Subunit 3B consists of 429 ha (1,060 ac) 
along 20.7 km (12.9 mi) of the Rio Cebolla on private lands and areas 
owned by the Forest Service and the State of New Mexico. This subunit 
extends from an old beaver dam about 0.6 km (0.4 mi) north of Hay 
Canyon downstream about where it meets the Rio de las Vacas.
    Based upon captures of the jumping mouse since 2005 (Frey 2005a, 
pp. 23-28, 37-38; Frey 2007b, p. 11), approximately 10.7 ha (26.4 ac) 
within Subunit 3B are considered occupied at the time of listing and 
contain suitable habitat. The occupied areas occurs on State of New 
Mexico and Forest Service lands in New Mexico at six locations along 
the Rio Cebolla: (1) Near the western edge of the northwestern pond 
along the access road within the New Mexico Department of Game and 
Fish's Seven Springs Hatchery; (2) within Fenton Lake State Park at the 
upper end of Fenton Lake Marsh above Highway 126 and the New Mexico 
Highway 126 bridge; (3) within Fenton Lake State Park Day Use Area at 
the mouth of a small tributary that enters the southwest side of Fenton 
Lake; (4) within Lake Fork Canyon inside a livestock exclosure above 
the bridge on Forest Road 376; (5) within a network of channels, beaver 
ponds, and wet meadows about 0.9 km (0.6 mi) southwest of Forest Road 
376 bridge; and (6) about 2.7 km (1.7 mi) north of the confluence of 
the Rio Cebolla and the Rio de las Vacas (Frey 2005a, pp. 23-28, 37-38; 
Frey 2007b, p. 11). The features essential to the conservation of this 
subspecies may require special management considerations or protection 
to reduce the following threats: Severe wildland fires, recreation, 
grazing, floods, the reduction in the distribution and abundance of 
beaver ponds, development, and highway reconstruction. The occupied 
areas are centered around the six capture locations plus an additional 
0.8-km (0.5-mi) segment upstream and downstream of these areas where 
the physical and biological features of critical habitat are found. The 
remaining unoccupied areas within Subunit 3B are found both upstream 
and downstream of the occupied areas, and are considered essential to 
the conservation of the jumping mouse (as described under the heading 
Unit Descriptions, above).
    Subunit 3C--Rio de las Vacas: Subunit 3C consists of 454 ha (1,122 
ac) along 23.3 km (14.5 mi) of the Rio de las Vacas on private lands 
and areas owned by the Forest Service. This subunit starts about 0.8 km 
(0.5 mi) north of Forest Road 94 adjacent to Burned Canyon and extends 
downstream to the confluence with Subunit 3B.
    Although much of the habitat was historically occupied with 
individuals detected as recently as 1989 (Morrison 1985; 1992, p. 311; 
Frey 2005a, p. 7), no New Mexico meadow jumping mice were captured 
during surveys in 2005 (Frey 2005a, p. 18). The entire subunit is 
considered unoccupied at the time of listing. This subunit has 
perennial flowing water with saturated soils and a high potential of 
being restored to suitable habitat. It has the potential for natural 
recolonization of jumping mice populations through individuals that 
naturally disperse. This subunit would provide connectivity to Subunit 
3B and allow for possible expansion of jumping mice from that currently 
occupied subunit, which is contiguous with Subunit 3C, into 
historically occupied habitat along the Rio de las Vacas drainage. We 
found this entire stream section would provide further connectivity to 
the adjacently occupied habitat within Subunit 3B and increase the 
length and size of the suitable habitat. All of the areas within 
Subunit 3C are considered essential to the conservation of the jumping 
mouse (as described under the heading Unit Descriptions, above).
Unit 4--Sacramento Mountains
    Unit 4 consists of 777 ha (1,920 ac) along 36.2 km (22.5 mi) of 
streams within five subunits on private lands and areas owned by the 
Forest Service within Otero County, New Mexico. Areas designated as 
critical habitat for the jumping mouse in this unit incorporate the 
only habitat known to be occupied by the species since 2005 within the 
Sacramento Mountains with the capability to support the breeding and 
reproduction of the species.
    Subunit 4A--Silver Springs: Subunit 4A consists of 105 ha (260 ac) 
along 5.2 km (3.2 mi) of Silver Springs Creek on private lands and 
areas owned by the Forest Service. This subunit begins about 0.3 km 
(0.2 mi) north of the intersection of Forest Road 162 and New Mexico 
Highway 244 and follows Silver Springs Creek downstream to the boundary 
of Forest Service and Mescalero Apache lands.
    Based upon the capture of one jumping mouse since 2005 (Frey 2005a, 
p. 31), approximately 5.4 ha (13.3 ac) within Subunit 4A are considered 
occupied at the time of listing. The occupied area is located on Forest 
Service lands in New Mexico within a grazing exclosure containing well-
developed riparian habitat about 7.4 km (4.6 mi) north of Cloudcroft 
along middle Silver Springs Creek, at Junction of Turkey Pen Canyon and 
Forest Road 405 (Frey 2005a, pp. 31, 38). The features essential to the 
conservation of this subspecies may require special management 
considerations or protection to reduce the following threats: Severe 
wildland fires, grazing, floods, and the reduction in the distribution 
and abundance of beaver

[[Page 14302]]

ponds. The occupied area is centered around one capture location plus 
an additional 0.8-km (0.5-mi) segment upstream and downstream of this 
area where the physical and biological features of critical habitat are 
found. The remaining unoccupied areas within Subunit 4A are found both 
upstream and downstream of the occupied area, and are considered 
essential to the conservation of the jumping mouse (as described under 
the heading Unit Descriptions, above).
    Subunit 4B--Upper Pe[ntilde]asco: Subunit 4B consists of 136 ha 
(335 ac) along 6.4 km (4.0 mi) of the Rio Pe[ntilde]asco on private 
lands and areas owned by the Forest Service. This subunit begins at the 
junction of Forest Service Road 164 and New Mexico Highway 6563 and 
follows the Rio Pe[ntilde]asco drainage downstream to about 2.4 km (1.5 
mi) below Bluff Spring at the boundary of private and Forest Service 
lands.
    Although much of the habitat was historically occupied with 
individuals detected as recently as 1988 (Morrison 1989, pp. 7-10, Frey 
2005a, pp. 30-31), no New Mexico meadow jumping mice were captured 
during surveys in 2005 (Frey 2005a, pp. 19-20, 32-34). The entire 
subunit is considered unoccupied at the time of listing. This subunit 
contains perennial flowing water with saturated soils and has a high 
potential of being restored to suitable habitat. It would augment the 
current size and connectivity of suitable habitat to increase the 
distribution of the jumping mouse in the Sacramento Mountains and 
provide population redundancy and resiliency. All of the areas within 
Subunit 4B are considered essential to the conservation of the jumping 
mouse (as described under the heading Unit Descriptions, above).
    Subunit 4C--Middle Pe[ntilde]asco: Subunit 4C consists of 264 ha 
(652 ac) along 11.4 km (7.1 mi) of the Rio Pe[ntilde]asco on private 
lands and areas owned by the Forest Service. This subunit begins at the 
junction of Wills Canyon and Forest Service Road 169 and follows the 
Rio Pe[ntilde]asco drainage downstream to the junction of Forest Road 
212.
    Based upon the capture of two jumping mice in 2012, following the 
cessation of grazing for 2 years (Forest Service 2012a, entire; 2012c, 
entire; Forest Service 2012h, pp. 2-4; Service 2012d; U.S. Army Corps 
of Engineers 2012, entire; 2012a, entire), approximately 0.3 ha (0.75 
ac) within Subunit 4C are considered occupied at the time of listing. 
The occupied area is located on Forest Service lands in New Mexico 
within a wetland at the junction of Cox Canyon and the Rio 
Pe[ntilde]asco (Forest Service 2012h, pp. 2-4). The features essential 
to the conservation of this subspecies may require special management 
considerations or protection to reduce the following threats: Severe 
wildland fires, recreation, grazing, floods, and the reduction in the 
distribution and abundance of beaver ponds. The occupied area is 
centered around one capture location plus an additional 0.8-km (0.5-mi) 
segment upstream and downstream of this area where the physical and 
biological features of critical habitat are found. The remaining 
unoccupied areas within Subunit 4C are found both upstream and 
downstream of the occupied area, and are considered essential to the 
conservation of the jumping mouse (as described under the heading Unit 
Descriptions, above).
    Subunit 4D--Wills Canyon: Subunit 4D consists of 111 ha (275 ac) 
along 5.5 km (3.4 mi) of streams on private lands and areas owned by 
the Forest Service. This subunit begins at upper Mauldin Spring, the 
head of the Wills Canyon, and follows the drainage downstream along 
Forest Service Road 169 to the boundary of Forest Service and private 
lands in the vicinity of Bear Spring.
    Based upon the capture of jumping mice in 2012 and 2013 (Forest 
Service 2012a, entire; 2012h, pp. 2-5; 2013a, entire; Service 2012d, 
pp. 2, 8), approximately 0.8 ha (1.9 ac) within Subunit 4D are 
considered occupied at the time of listing. The occupied area is 
located on Forest Service lands in New Mexico within the grazing 
exclosures at Mauldin Spring in Wills Canyon (Forest Service 2012a, 
entire; 2012h, pp. 2-5; 2013a, entire; Service 2012d, pp. 2, 8). The 
features essential to the conservation of this subspecies may require 
special management considerations or protection to reduce the following 
threats: severe wildland fires, grazing, floods, and the reduction in 
the distribution and abundance of beaver ponds. The occupied area is 
centered around the capture locations plus an additional 0.8-km (0.5-
mi) segment upstream and downstream of this area where the physical and 
biological features of critical habitat are found. The remaining 
unoccupied areas within Subunit 4D are found both upstream and 
downstream of the occupied area, and are considered essential to the 
conservation of the jumping mouse (as described under the heading Unit 
Descriptions, above).
    Subunit 4E--Agua Chiquita Canyon: Subunit 4E consists of 161 ha 
(398 ac) along 7.7 km (4.8 mi) of Agua Chiquita Creek on areas owned by 
the Forest Service. This subunit begins about 0.8 km (0.5 mi) upstream 
of the livestock exclosure around Barrel and Sand Springs along Agua 
Chiquita Creek and follows the canyon downstream along Forest Service 
Road 64 to Crisp, a Forest Service riparian pasture.
    Based upon multiple captures of jumping mice since 2005 (Frey 
2005a, p. 34; Forest Service 2010, entire; Service 2012d, pp. 1-2), 
approximately 4.9 ha (12.0 ac) within Subunit 4E are considered 
occupied at the time of listing. The occupied areas are located on 
Forest Service lands in New Mexico within two of four fenced livestock 
exclosures, which includes the exclosure surrounding Sand and Barrel 
Springs and the most downstream section of the second in the series of 
four exclosures (Frey 2005a, p. 34; Forest Service 2010, entire; 
Service 2012d, pp. 1-2). The features essential to the conservation of 
this subspecies may require special management considerations or 
protection to reduce the following threats: Severe wildland fires, 
recreation, grazing, floods, and the reduction in the distribution and 
abundance of beaver ponds. The occupied areas are centered around the 
two capture locations plus an additional 0.8-km (0.5-mi) segment 
upstream and downstream of these areas where the physical and 
biological features of critical habitat are found. The remaining 
unoccupied areas within Subunit 4E are found both upstream and 
downstream of the occupied areas, and are considered essential to the 
conservation of the jumping mouse (as described under the heading Unit 
Descriptions, above).
Unit 5--White Mountains
    Unit 5 consists of 2,448 ha (6,046 ac) along 116.6 km (72.4 mi) of 
streams within eight subunits on private lands and areas owned by the 
Forest Service and the State of Arizona within Greenlee and Apache 
Counties, Arizona. Areas designated as critical habitat for the jumping 
mouse in this unit incorporate the only habitat known to be occupied by 
the species since 2005 within the White Mountains with the capability 
to support the breeding and reproduction of the species.
    Subunit 5A--Little Colorado: Subunit 5A consists of 478 ha (1,181 
ac) along 22.6 km (14.0 mi) of the Little Colorado River on private 
lands and areas owned by the Forest Service. This subunit encompasses 
the East and West Forks of the Little Colorado River. The East Fork 
Segment begins 0.8 km (0.5 mi) upstream of the Phelps Research Natural 
Area and follows the drainage downstream about 3.2 km (2.0 mi) to the 
confluence of Lee Valley Creek and then runs upstream about 1.6 km (1.0 
mi) to the dam of Lee Valley Reservoir. The

[[Page 14303]]

subunit continues from the confluence of Lee Valley Creek and the East 
Fork, downstream to the confluence of the West Fork of the Little 
Colorado River, continuing to about 8.9 km (5.5 mi) upstream along the 
drainage to about 0.8 km (0.5 mi) past Sheep's Crossing.
    Based upon multiple captures of jumping mice since 2008 (Frey 2011, 
pp. 29, 87; AGFD 2012a, p. 3), approximately 0.6 ha (1.5 ac) within 
Subunit 5A are considered occupied at the time of listing. The occupied 
area is located on Forest Service lands in Arizona within a livestock 
exclosure along a short 0.4-km (0.25-mi) stream reach that is 1.8 km 
(1.1 mi) south of Greer, below Montlure Camp (Frey 2011, pp. 29, 87; 
AGFD 2012a, p. 3). In 2011, the Wallow Fire burned much of this area, 
and surveys during 2012 continued to detect New Mexico meadow jumping 
mice (AGFD 2012a, p. 3). The features essential to the conservation of 
this subspecies may require special management considerations or 
protection to reduce the following threats: Severe wildland fires, 
recreation, grazing, floods, the reduction in the distribution and 
abundance of beaver ponds, and development. The occupied areas are 
centered around the capture locations plus an additional 0.8-km (0.5-
mi) segment upstream and downstream of this area where the physical and 
biological features of critical habitat are found. The remaining 
unoccupied areas within Subunit 5A are found both upstream and 
downstream of the occupied area, and are considered essential to the 
conservation of the jumping mouse (as described under the heading Unit 
Descriptions, above).
    Subunit 5B--Nutrioso: Subunit 5B consists of 413 ha (1,021 ac) 
along 20.4 km (12.7 mi) of Nutrioso Creek on private lands and areas 
owned by the Forest Service. This subunit begins at the confluence of 
Paddy Creek about 4.8 km (3 mi) south of the town of Nutrioso and 
follows the drainage downstream about 16 km (10 mi) to Nelson 
Reservoir.
    Based upon multiple captures of jumping mice since 2008 (Frey 2011, 
pp. 29, 35, 89, 95; AGFD 2012a, p. 3), approximately 1.9 ha (4.9 ac) 
within Subunit 5B are considered occupied at the time of listing. The 
occupied area is located on Forest Service lands in Arizona along a 
short 1.3-km (0.8-mi) stream reach 3.9 km (2.4 mi) south of the town of 
Nutrioso. In 2011, the Wallow Fire burned much of this area, and 
surveys during 2012 continued to detect New Mexico meadow jumping mice 
(AGFD 2012a, p. 3). The features essential to the conservation of this 
subspecies may require special management considerations or protection 
to reduce the following threats: Severe wildland fires, grazing, 
floods, the reduction in the distribution and abundance of beaver 
ponds, highway reconstruction, and development. The occupied area is 
centered around the capture locations plus an additional 0.8-km (0.5-
mi) segment upstream and downstream of this area where the physical and 
biological features of critical habitat are found. The remaining 
unoccupied areas within Subunit 5B are found both upstream and 
downstream of the occupied area, and are considered essential to the 
conservation of the jumping mouse (as described under the heading Unit 
Descriptions, above).
    Subunit 5C--San Francisco: Subunit 5C consists of 252 ha (622 ac) 
along 11.8 km (7.3 mi) of the San Francisco River and its tributary 
Turkey (=Talwiwi) Creek on private lands and areas owned by the Forest 
Service. This subunit begins about 0.6 km (0.4 mi) west of Forest Road 
8854 along the San Francisco River and follows the drainage downstream 
about 10.5 km (6.5 mi), including a 1.3-km (0.8-mi) segment of Turkey 
(=Talwiwi) Creek that is south of Arizona Highway 180, then continues 
downstream to the headwaters of Luna Lake.
    Based upon multiple captures of jumping mice since 2008 (Frey 2011, 
pp. 29, 97, 100), approximately 0.9 ha (2.3 ac) within Subunit 5C are 
considered occupied at the time of listing. There are two occupied 
areas within this unit located on Forest Service lands in Arizona 
including: (1) A small livestock exclosure along a 0.2-km (0.1-mi) 
stream reach of upper Turkey Creek at the junction of Highway 80 and 
Forest Road 289; and (2) two fenced livestock exclosures along a 0.4-km 
(0.2-mi) stream reach at the junction of the San Francisco River and 
Forest Road 8854 (Frey 2011, p. 97). In 2011, the Wallow Fire burned 
much of this area, and surveys during 2012 did not detect New Mexico 
meadow jumping mice (AGFD 2012, entire, 2012a, p. 2). However, until 
multiple years of surveys determine that the population has been 
extirpated, we consider this area within the geographical area occupied 
by the jumping mouse at the time of listing. The features essential to 
the conservation of this subspecies may require special management 
considerations or protection to reduce the following threats: Severe 
wildland fires, grazing, floods, the reduction in the distribution and 
abundance of beaver ponds, highway reconstruction, and development. The 
occupied areas are centered around the two capture locations plus an 
additional 0.8-km (0.5-mi) segment upstream and downstream of these 
areas where the physical and biological features of critical habitat 
are found. The remaining unoccupied areas within Subunit 5C are found 
both upstream and downstream of the occupied areas, and are considered 
essential to the conservation of the jumping mouse (as described under 
the heading Unit Descriptions, above).
    Subunit 5D--East Fork Black: Subunit 5D consists of 421 ha (1,040 
ac) along 20.3 km (12.6 mi) of the East Fork of the Black River areas 
owned by the Forest Service. This subunit begins 0.8 km (0.5 mi) north 
of the intersection of Three Forks Road and Route 285 and follows the 
drainage downstream about 20.3 km (12.6 mi), where it abuts Subunit 5E.
    Based upon multiple captures of jumping mice since 2008 (Frey 2011, 
p. 97; AGFD 2012, entire, 2012a, p. 2), approximately 6.9 ha (16.9 ac) 
within Subunit 5D are considered occupied at the time of listing. The 
occupied area is located on Forest Service lands in Arizona along the 
headwaters of the East Fork Black River near the intersection of Three 
Forks Road and Route 285 (Frey 2011, p. 29, 35, 40, 104; AGFD 2012, 
entire, 2012a, p. 2). In 2011, the Wallow Fire burned much of this 
area, and surveys during 2012 continued to detect New Mexico meadow 
jumping mice (AGFD 2012a, p. 2). The features essential to the 
conservation of this subspecies may require special management 
considerations or protection to reduce the following threats: Severe 
wildland fires, grazing, floods, the reduction in the distribution and 
abundance of beaver ponds, and highway reconstruction. The occupied 
area is centered around the capture location plus an additional 0.8-km 
(0.5-mi) segment upstream and downstream of this area where the 
physical and biological features of critical habitat are found. The 
remaining unoccupied areas within Subunit 5D are found both upstream 
and downstream of the occupied area, and are considered essential to 
the conservation of the jumping mouse (as described under the heading 
Unit Descriptions, above).
    Subunit 5E--West Fork Black: Subunit 5E consists of 481 ha (1,188 
ac) along 23.0 km (14.3 mi) of the West Fork of the Black River on 
private lands and areas owned by the Forest Service and the State of 
Arizona. The subunit begins at the confluence of the West Fork of the 
Black River and Burro Creek and follows the drainage downstream where 
it abuts Subunit 5D.

[[Page 14304]]

    Based upon multiple captures of jumping mice since 2007 (Underwood, 
2007, entire; Frey 2011, pp. 29, 40, 104; AGFD 2012, p. 2), 
approximately 13.7 ha (33.9 ac) within Subunit 5E are considered 
occupied at the time of listing. The occupied areas occur on Forest 
Service lands in Arizona at four locations: (1) Along the upper West 
Fork Black River just north of Forest Road 116; (2) immediately 
adjacent to the campground along the middle Fork of the Black River; 
(3) at the junction of Forest Road 68 and the middle Fork of the Black 
River; and (4) near the junction of the lower Fork of the Black River 
and Home Creek (Underwood 2007, entire; Frey 2011, pp. 29, 40, 104; 
AGFD 2012, p. 2012a, pp. 2-3). In 2011, the Wallow Fire burned much of 
this area, and surveys during 2012 continued to detect New Mexico 
meadow jumping mice at the lower and middle sections of the West Fork 
Black River (AGFD 2012a, pp. 2-3). Although New Mexico meadow jumping 
mice were not detected at the upper West Fork Black River location, 
until multiple years of surveys determine that the population has been 
extirpated, we consider this area within the geographical area occupied 
by the jumping mouse at the time of listing. The features essential to 
the conservation of this subspecies may require special management 
considerations or protection to reduce the following threats: Severe 
wildland fires, grazing, floods, the reduction in the distribution and 
abundance of beaver ponds, and highway reconstruction. The occupied 
areas are centered around the four capture locations plus an additional 
0.8-km (0.5-mi) segment upstream and downstream of these areas where 
the physical and biological features of critical habitat are found. The 
remaining unoccupied areas within Subunit 5E are found both upstream 
and downstream of the occupied areas, and are considered essential to 
the conservation of the jumping mouse (as described under the heading 
Unit Descriptions, above).
    Subunit 5F--Boggy and Centerfire: Subunit 5F consists of 197 ha 
(485 ac) along 8.9 km (5.5 mi) of Boggy Creek and Centerfire Creek on 
areas owned by the Forest Service. The east segment of the subunit 
begins 0.8 km (0.5 mi) north of the intersection of Route 25 and Boggy 
Creek and follows the drainage downstream to the confluence with 
Centerfire Creek. The west segment begins 0.8 km (0.5 mi) north of the 
intersection of Route 25 and Centerfire Creek, and follows the drainage 
downstream to the confluence with Boggy Creek, then continues 
downstream to the confluence with the Black River.
    Based upon multiple captures of jumping mice since 2008 (Frey 2011, 
pp. 29, 104-105; AGFD 2012, pp. 3-4; 2012a, p. 3), approximately 3.0 ha 
(7.5 ac) within Subunit 5F are considered occupied at the time of 
listing. The occupied areas are located on Forest Service lands in 
Arizona within fenced livestock exclosures at the junction of Forest 
Road 25 and Boggy Creek; and within a fenced livestock exclosure at the 
junction of Forest Road 25 and Centerfire Creek (Frey 2011, pp. 29, 
104-105; AGFD 2012, pp. 3-4; 2012a, p. 3). In 2011, the Wallow Fire 
burned much of this area, and surveys during 2012 continued to detect 
New Mexico meadow jumping mice (AGFD 2012a, p. 3). The features 
essential to the conservation of this subspecies may require special 
management considerations or protection to reduce the following 
threats: Severe wildland fires, grazing, floods, and the reduction in 
the distribution and abundance of beaver ponds. The occupied areas are 
centered around the capture locations plus an additional 0.8-km (0.5-
mi) segment upstream and downstream of these areas where the physical 
and biological features of critical habitat are found. The remaining 
unoccupied areas within Subunit 5F are found both upstream and 
downstream of the occupied areas, and are considered essential to the 
conservation of the jumping mouse (as described under the heading Unit 
Descriptions, above).
    Subunit 5G--Corduroy: Subunit 5G consists of 104 ha (256 ac) along 
4.8 km (3.0 mi) of Corduroy Creek on lands owned by the Forest Service. 
The subunit begins at the headwaters about 0.8 km (0.5 mi) south of the 
intersection of County Road 24 and County Road 8184A and follows the 
drainage downstream to the confluence with Fish Creek.
    Based upon multiple captures of jumping mice since 2009 (Frey 2011, 
pp. 104-105; AGFD 2012, entire, 2012a, p. 4), approximately 0.4 ha (1.1 
ac) within Subunit 5G are considered occupied at the time of listing. 
The occupied area is located on Forest Service lands in Arizona within 
fenced livestock exclosures at the junction of Forest Road 8184A and 
Corduroy Creek (Frey 2011, pp. 104-105; AGFD 2012, entire, 2012a, p. 
4). In 2011, the Wallow Fire burned much of this area, and surveys 
during 2012 continued to detect New Mexico meadow jumping mice (AGFD 
2012a, p. 4). The features essential to the conservation of this 
subspecies may require special management considerations or protection 
to reduce the following threats: Severe wildland fires, grazing, 
floods, and the reduction in the distribution and abundance of beaver 
ponds. The occupied area is centered around the capture location plus 
an additional 0.8-km (0.5-mi) segment upstream and downstream of this 
area where the physical and biological features of critical habitat are 
found. The remaining unoccupied areas within Subunit 5G are found both 
upstream and downstream of the occupied area, and are considered 
essential to the conservation of the jumping mouse (as described under 
the heading Unit Descriptions, above).
    Subunit 5H--Campbell Blue: Subunit 5H consists of 102 ha (253 ac) 
along 4.8 km (3.0 mi) of Campbell Blue Creek on private lands and areas 
owned by the Forest Service. The subunit begins at the confluence with 
Cat Creek along Forest Road 281 and extends downstream to the 
confluence with Turkey Creek.
    Based upon multiple captures of jumping mice since 2008 (Frey 2011, 
pp. 29, 101), approximately 0.008 ha (0.02 ac) within Subunit 5H are 
considered occupied at the time of listing. The occupied area is 
located on Forest Service lands in Arizona within a livestock exclosure 
13 km (8 mi) north of the community of Blue (Frey 2011, pp. 29, 101). 
In 2011, the Wallow Fire burned much of this area, and surveys during 
2012 did not detect New Mexico meadow jumping mice (AGFD 2012, entire, 
2012a, p. 2). However, until multiple years of surveys determine that 
the population has been extirpated, we consider this area within the 
geographical area occupied by the jumping mouse at the time of listing. 
The features essential to the conservation of this subspecies may 
require special management considerations or protection to reduce the 
following threats: Severe wildland fires, grazing, floods, and the 
reduction in the distribution and abundance of beaver ponds. The 
occupied area is centered around the capture location plus an 
additional 0.8-km (0.5-mi) segment upstream and downstream of this area 
where the physical and biological features of critical habitat are 
found. The remaining unoccupied areas within Subunit 5H are found both 
upstream and downstream of the occupied area, and are considered 
essential to the conservation of the jumping mouse (as described under 
the heading Unit Descriptions, above).

[[Page 14305]]

Unit 6--Bosque del Apache National Wildlife Refuge (NWR)
    Unit 6 consists of 403 ha (995 ac) along 21.1 km (13.1 mi) of 
ditches and canals on the Service's Bosque del Apache NWR, Socorro 
County, New Mexico. This unit includes parts of a complex ditch system 
with associated irrigation of NWR management units, making habitat 
within this area unique. This unit begins in the northern part of the 
NWR and generally follows the Riverside Canal to the southern end. The 
NWR is the only locality within the middle Rio Grande considered still 
in existence (Frey and Wright 2012; Service 2014a, entire).
    Based upon multiple captures of the jumping mouse since 2009 (Frey 
and Wright 2012, entire; Service 2014a, entire), approximately 4.1 ha 
(10.1 ac) within Unit 6 are considered occupied at the time of listing. 
The occupied area is located on NWR lands in New Mexico along a 2.7-km 
(1.7-mi) segment of the Riverside Canal (Frey and Wright 2012, entire; 
Service 2014a, entire). The features essential to the conservation of 
this subspecies may require special management considerations or 
protection to reduce the following threats: Water use and management; 
severe wildland fires; and thinning, mowing, or removing tamarisk (also 
known as saltcedar, Tamarix ramosissima), decadent stands of willow 
that are greater than 3 years old or 1.5 m (4.9 ft) tall. The occupied 
area is centered around the capture locations plus an additional 0.8-km 
(0.5-mi) segment upstream and downstream of this area where the 
physical and biological features of critical habitat are found. The 
remaining unoccupied areas within Unit 6 are found both upstream and 
downstream of the occupied area, and are considered essential to the 
conservation of the jumping mouse (as described under the heading Unit 
Descriptions, above).
Unit 7--Florida
    Unit 7 consists of 253 ha (626 ac) along 13.6 km (8.4 mi) of the 
Florida River on private lands and an area owned by the Bureau of Land 
Management, La Plata County, Colorado. The unit begins at the 
irrigation diversion structure (Florida Ditch main headgate) of the 
Florida Water Conservancy District about 0.8 km (0.5 mi) northeast of 
the intersection of La Plata County Road 234 and 237 and follows the 
drainage downstream to about 0.16 km (0.1 mi) north of Ranchos Florida 
Road.
    Based upon the capture of two jumping mice since 2007 (Museum of 
Southwestern Biology 2007; 2007a; Frey 2008c, pp. 42-45, 56; 2011a, pp. 
19, 33), approximately 0.15 ha (0.37 ac) within Unit 7 are considered 
occupied at the time of listing. The occupied area is located on 
private lands in Colorado 0.9 km (0.6 mi) north of Highway 160 along 
the Florida River (Museum of Southwestern Biology 2007; 2007a; Frey 
2008c, pp. 42-45, 56; 2011a, pp. 19, 33). The features essential to the 
conservation of this subspecies may require special management 
considerations or protection to reduce the following threats: Floods, 
water use and management, development, and coalbed methane. The 
occupied area is centered around the capture location plus an 
additional 0.8-km (0.5-mi) segment upstream and downstream of this area 
where the physical and biological features of critical habitat are 
found. The remaining unoccupied areas within Unit 7 are found both 
upstream and downstream of the occupied area, and are considered 
essential to the conservation of the jumping mouse (as described under 
the heading Unit Descriptions, above).
Unit 8--Sambrito Creek
    Unit 8 consists of 75 ha (185 ac) along 4.6 km (2.9 mi) of Sambrito 
Creek on private lands and areas owned by the State of Colorado within 
Navajo State Park, near Arboles, Archuleta County, Colorado. There are 
two segments within this unit. One segment begins at Archuleta County 
Road 977, following Sambrito Creek downstream to the headwaters of 
Navajo Reservoir. The second segment starts about 0.3 km (0.2 mi) west 
of the intersection of Colorado Road 977 and 988 and follows the 
drainage about 3.9 km (2.1 mi) through the Sambrito Wetlands Area 
downstream about to the headwaters of Navajo Reservoir.
    Based upon multiple captures of jumping mice since 2012 (Colorado 
Parks and Wildlife 2012, entire, 2013, entire; Ecosphere 2014, entire), 
approximately 0.9 ha (2.3 ac) within Unit 8 are considered occupied at 
the time of listing. The occupied area is located on State of Colorado 
lands immediately south of Archuleta County Road 977 along the unnamed 
drainage through the Sambrito Wetlands Areas about 1.8 km (1.1 mi) due 
west of Sambrito Creek (Colorado Parks and Wildlife 2012, entire). The 
features essential to the conservation of this subspecies may require 
special management considerations or protection to reduce the following 
threats: Floods, grazing, water use and management, the reduction in 
the distribution and abundance of beaver ponds, development, 
recreation, and coalbed methane. The occupied area is centered around 
the capture location that is about 0.5 km (0.3 mi) south of Archuleta 
County Road 977 plus an additional 0.8-km (0.5-mi) segment upstream and 
downstream of this area where the physical and biological features of 
critical habitat are found. The remaining unoccupied areas within Unit 
8 are found both upstream and downstream of the occupied area, and are 
considered essential to the conservation of the jumping mouse (as 
described under the heading Unit Descriptions, above).

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 that 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 14306]]

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, or 
are likely to adversely affect, listed species or critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to jeopardize the continued existence of a listed species and/or 
destroy or adversely modify critical habitat, we provide reasonable and 
prudent alternatives to the project, if any are identifiable, that 
would avoid the likelihood of jeopardy and/or destruction or adverse 
modification of critical habitat. We define ``reasonable and prudent 
alternatives'' (at 50 CFR 402.02) as alternative actions identified 
during consultation that:
    (1) Can be implemented in a manner consistent with the intended 
purpose of the action,
    (2) Can be implemented consistent with the scope of the Federal 
agency's legal authority and jurisdiction,
    (3) Are economically and technologically feasible, and
    (4) Would, in the Director's opinion, avoid the likelihood of 
jeopardizing the continued existence of the listed species and/or avoid 
the likelihood of destroying or adversely modifying critical habitat.
    Reasonable and prudent alternatives can vary from slight project 
modifications to extensive redesign or relocation of the project. Costs 
associated with implementing a reasonable and prudent alternative are 
similarly variable.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where we have 
listed a new species or subsequently designated critical habitat that 
may be affected and the Federal agency has retained discretionary 
involvement or control over the action (or the agency's discretionary 
involvement or control is authorized by law). Consequently, Federal 
agencies sometimes may need to request reinitiation of consultation 
with us on actions for which formal consultation has been completed, if 
those actions with discretionary involvement or control may affect 
subsequently listed species or designated critical habitat.

Application of the ``Adverse Modification'' Standard

    The key factor related to the adverse modification determination is 
whether, with implementation of the proposed Federal action, the 
affected critical habitat would continue to serve its intended 
conservation role for the species. Activities that may destroy or 
adversely modify critical habitat are those that alter the physical or 
biological features to an extent that they appreciably reduce the 
conservation value of critical habitat for the jumping mouse. As 
discussed above, the role of critical habitat is to support life-
history needs of the subspecies and provide for the conservation of the 
subspecies.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe, in any proposed or final regulation that designates critical 
habitat, activities involving a Federal action that may destroy or 
adversely modify such habitat, or that may be affected by such 
designation.
    Activities that may affect critical habitat, when carried out, 
funded, or authorized by a Federal agency, should result in 
consultation for the jumping mouse. These activities include, but are 
not limited to:
    (1) Any activity that destroys, modifies, alters, or removes the 
herbaceous riparian vegetation that comprises the subspecies' habitat, 
as described in this final rule or within the SSA Report (Service 
2014), especially if these activities occur during the jumping mouse's 
active season. Such activities could include, but are not limited to: 
Domestic livestock grazing; land clearing or mowing; activities 
associated with construction for roads, bridges, pipelines, or bank 
stabilization; residential or commercial development; channel 
alteration; timber harvest; prescribed fires; off-road vehicle 
activity; recreational use; the removal of beaver (excluding irrigation 
ditches and canals); and other alterations of watersheds and 
floodplains. These activities may affect the physical or biological 
features of critical habitat for the jumping mouse, by removing sources 
of food, shelter, nesting or hibernation sites, or by otherwise 
impacting habitat essential for completion of its life history.
    (2) Any activity that results in changes in the hydrology of the 
critical habitat unit, including modification to any stream or water 
body that results in the removal or destruction of herbaceous riparian 
vegetation in any stream or water body. Such activities that could 
cause these effects include, but are not limited to, water diversions, 
groundwater pumping, watershed degradation, construction or destruction 
of dams or impoundments, developments or `improvements' at a spring, 
channelization, dredging, road and bridge construction, destruction of 
riparian or wetland vegetation, and other activities resulting in the 
draining or inundation of a unit.
    (3) Any activity (e.g., instream dredging, impoundment, water 
diversion or withdrawal, channelization, discharge of fill material) 
that detrimentally alters natural processes in a unit, including 
changes to inputs of water, sediment, and nutrients, or any activity 
that significantly and detrimentally alters water quantity in the unit.
    (4) Any activity that could lead to the introduction, expansion, or 
increased density of an exotic plant or animal species that is 
detrimental to the jumping mouse and to its habitat.

Exemptions

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

    Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) 
provides that: ``The Secretary shall not designate as critical habitat 
any lands or other geographic areas owned or controlled by the 
Department of Defense, or designated for its use, that are subject to 
an integrated natural resources management plan [INRMP] prepared under 
section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary 
determines in writing that such plan provides a benefit to the species 
for which critical habitat is proposed for designation.'' There are no 
Department of Defense lands within the critical habitat designation for 
the jumping mouse; therefore, we are not exempting any areas under 
section 4(a)(3)(B)(i) of the Act.

Consideration of Impacts Under 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

[[Page 14307]]

critical habitat if he determines that the benefits of such exclusion 
outweigh the benefits of specifying such area as part of the critical 
habitat, unless 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.
    When identifying the benefits of exclusion, we consider, among 
other things, whether exclusion of a specific area is likely to result 
in conservation; 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 jumping mouse, the benefits of critical habitat 
include promotion of public awareness of the presence of the jumping 
mouse and the importance of habitat protection, and in cases where a 
Federal nexus exists, potentially greater habitat protection for the 
jumping mouse due to the protection from adverse modification or 
destruction of critical habitat.
    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 the following areas from critical habitat 
designation for the jumping mouse:

               Table 3--Areas Excluded From Critical Habitat Designation by Critical Habitat Unit
----------------------------------------------------------------------------------------------------------------
                                                                   Areas meeting the
                                                                 definition of critical    Areas excluded from
           Proposed subunit                 Specific area         habitat, in hectares     critical habitat, in
                                                                        (acres)              hectares (acres)
----------------------------------------------------------------------------------------------------------------
6A...................................  Isleta Pueblo..........  43 ha (105 ac).........  43 ha (105 ac).
6B...................................  Ohkay Owingeh..........  51 ha (125 ac).........  51 ha (125 ac).
----------------------------------------------------------------------------------------------------------------

Consideration of 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 an incremental effects 
memorandum and screening analysis, which together with our narrative 
and interpretation of effects, we consider our draft economic analysis 
of the proposed critical habitat designation and related factors (IEc 
2014a, entire).
    The analysis, dated April 8, 2014, was made available for public 
review from April 8, 2014, through May 8, 2014 (79 FR 19307). The draft 
economic analysis addressed potential economic impacts of critical 
habitat designation for jumping mouse. Following the close of the 
comment period, we reviewed and evaluated all information submitted 
during the comment period that may pertain to our consideration of the 
probable incremental economic impacts of this critical habitat 
designation. Additional information relevant to the probable 
incremental economic impacts of critical habitat designation for the 
jumping mouse is summarized below and available in the screening 
analysis for the jumping mouse (IEc 2014, entire), available at http://www.regulations.gov.
    The economic screening memorandum is our economic analysis of the 
proposed critical habitat designation (IEc 2014, entire). The purpose 
of the economic analysis is to provide us with the information on the 
potential for the proposed critical habitat rule to result in costs 
exceeding $100 million in a single year. The draft economic analysis 
addressed potential economic impacts of critical habitat designation 
for the jumping mouse. To that end, the analysis estimates impacts to 
activities, including grazing, water use, and recreation, that may 
experience the greatest impacts in compliance with section 4(b)(2) of 
the Act. The draft screening memo is provided to the public for review 
and comment. Following the close of the comment period, we reviewed and 
evaluated all information submitted during the comment period that may 
pertain to our consideration of the probable economic impacts of this 
critical habitat designation. We conclude that critical habitat 
designation for the jumping mouse is unlikely to generate costs 
exceeding $100 million in a single year.

Exclusions Based on Economic Impacts

    Our economic analysis did not identify any disproportionate costs 
that are likely to result from the designation. Consequently, the 
Secretary is not exercising her discretion to exclude any areas from 
this designation of critical habitat for the jumping mouse based on 
economic impacts.
    A copy of the IEM and screening analysis with supporting documents 
may be obtained by contacting the New Mexico Ecological Services Field 
Office (see ADDRESSES) or by downloading from the Internet at http://www.regulations.gov.
    Critical habitat designation for the jumping mouse is unlikely to 
generate costs exceeding $100 million in a single year. In occupied 
areas, the economic impacts of implementing the rule through section 7 
of the Act will most likely be limited to additional administrative 
effort to consider adverse

[[Page 14308]]

modification. This finding is based on the following factors:
     Any activities with a Federal nexus occurring within 
occupied habitat will be subject to section 7 consultation requirements 
regardless of critical habitat designation, due to the presence of the 
listed species; and
     In most cases, project modifications requested to avoid 
adverse modification are likely to be the same as those needed to avoid 
jeopardy in occupied habitat.
    This analysis forecasts the total number and administrative cost of 
future consultations likely to occur for grazing, transportation, 
recreation, water management, and species and habitat management 
undertaken by or permitted by Federal agencies within the study area. 
In addition, the analysis forecasts costs associated with conservation 
efforts that may be recommended in consultation for those activities 
occurring in unoccupied areas. The total incremental section 7 costs 
associated with the proposed designation are estimated to be 
$20,000,000 in 2014, for both administrative and conservation effort 
costs; therefore, the total costs of the proposed rule are unlikely to 
exceed $100 million in a given year.
    Various economic benefits may result from the incremental 
conservation efforts identified in this analysis, including: (1) Those 
associated with the primary goal of species conservation (i.e., direct 
benefits), and (2) those additional beneficial services that derive 
from conservation efforts but are not the purpose of the Act (i.e., 
ancillary benefits). Due to existing data limitations, we are unable to 
assess the likely magnitude of these benefits.

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 
determined that no lands within the designation of critical habitat for 
the jumping mouse are owned or managed by the Department of Defense or 
Department of Homeland Security, and, therefore, we anticipate no 
impact on national security or homeland security. Consequently, the 
Secretary is not exerting 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 also consider any other 
relevant impacts resulting from the designation of critical habitat. We 
consider a number of factors including whether the landowners have 
developed any habitat conservation plans 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.

Tribal Lands--Exclusions Under Section 4(b)(2) of the Act

    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.
Land and Resource Management Plans, Conservation Plans, or Agreements 
Based on Conservation Partnerships
    We indicated in the proposed rule that our final decision regarding 
the exclusions of tribal lands under section 4(b)(2) of the Act would 
consider tribal management and the recognition of their capability to 
appropriately manage their own resources, and the government-to-
government relationship of the United States with tribal entities (79 
FR 37328; June 20, 2013). We also acknowledged our responsibilities to 
work directly with tribes in developing programs for healthy 
ecosystems, that tribal lands are not subject to the same controls as 
Federal public lands, our need to remain sensitive to Indian culture, 
and to make information available to tribes (79 FR 37328; June 20, 
2013). We identified the tribal lands of Isleta Pueblo and Ohkay 
Owingeh included within the proposal as areas we were considering for 
exclusion (79 FR 37328; June 20, 2013).
Isleta Pueblo
    On Isleta Pueblo (within Subunit 6A in the proposed rule), we 
proposed 43 ha (105 ac) of critical habitat along 3.7 km (2.3 mi) of 
ditches, canals, and marshes within Bernalillo County, New Mexico. Much 
of the habitat was historically occupied with individuals detected as 
recently as 1988 (Morrison 1988, pp. 22-27; Frey 2006c, entire); 
however, surveys within parts of the two proposed critical habitat 
segments during 2014 did not detect New Mexico meadow jumping mice 
(Bureau of Reclamation 2014, entire). The entire area is considered 
unoccupied at the time of listing.
    As analyzed below, we have excluded Isleta Pueblo from critical 
habitat based on their Riverine Management Plan and our ongoing 
conservation partnership where the benefits of exclusion from critical 
habitat outweigh the benefits of including an area within critical 
habitat. We believe that the Isleta Riverine Management Plan fulfills 
our criteria described below, and these benefits outweigh the benefits 
from inclusion as critical habitat. Moreover, Isleta Pueblo has a 
demonstrated productive working relationship on a Government-to-
Government basis with us. The designation of critical habitat on Isleta 
Pueblo would be expected to adversely impact our working relationship. 
During our discussions with Isleta Pueblo and from comments we received 
on the proposed designation of critical habitat for the jumping mouse, 
they informed us that critical habitat would be viewed as an intrusion 
on their sovereign abilities to manage natural resources in accordance 
with their own policies, customs, and laws. The perceived restrictions 
of a critical habitat designation could have a more damaging effect to 
coordination efforts, possibly preventing actions that might maintain, 
improve, or restore habitat for the jumping mouse and other endangered 
or threatened species like the southwestern willow flycatcher 
(Empidonax traillii extimus) (flycatcher) and Rio Grande silvery minnow 
(Hybognathus amarus) (silvery minnow). As a result, we found Isleta 
Pueblo would prefer to work with us on a government-to-government 
basis.
    The Pueblo of Isleta has developed and maintained a Riverine 
Management Plan that includes the flycatcher and silvery minnow 
(Service 2005; 70 FR 60955, October 19, 2005; Pueblo of Isleta 2005, 
entire; 2014, entire). The objective of this plan is to protect, 
conserve, and promote the management of the flycatcher and silvery 
minnow and their associated habitats within the

[[Page 14309]]

Pueblo's boundaries. The Pueblo recently updated and Tribal Council 
subsequently approved, the Riverine Management Plan to specifically 
include management of the jumping mouse and its habitat by: (1) 
Evaluating jumping mouse populations within their management areas; (2) 
developing science-based management actions that address and mitigate 
potential threats to the subspecies on the Pueblo; (3) prescribing 
appropriate measures to sustain existing habitat; and (4) promoting a 
comprehensive, integrated, and adaptive resource management approach 
for the riverine ecosystem administered by the Pueblo (Pueblo of Isleta 
2014, entire). The Pueblo will continue to protect its bosque and does 
not intend to develop the areas we proposed as jumping mouse critical 
habitat. Moreover, under the comprehensive Riverine Management Plan, 
the Isleta Pueblo has conducted a variety of voluntary measures, 
restoration projects, and management actions to conserve riparian 
vegetation, including not allowing cattle to graze within the bosque, 
protecting riparian habitat from fire, maintaining native vegetation, 
and preventing habitat fragmentation (Service 2005; 70 FR 60955, 
October 19, 2005; Pueblo of Isleta 2005, entire).
    We considered their current conservation plan to provide adequate 
management or protection because it meets the following criteria:
    (1) The plan is complete and provides the same or better level of 
protection from adverse modification or destruction than that provided 
through a consultation under section 7 of the Act;
    (2) There is a reasonable expectation that the conservation 
management strategies and actions will be implemented for the 
foreseeable future, based on past practices, written guidance, or 
regulations; and
    (3) The plan provides conservation strategies and measures 
consistent with currently accepted principles of conservation biology.
    For these reasons, we believe that our working relationship will be 
better maintained if Isleta Pueblo was excluded from the designation of 
jumping mouse critical habitat. We view this as a substantial benefit 
since we have developed a cooperative working relationship for the 
mutual benefit of endangered and threatened species, including the 
jumping mouse.
Benefits of Inclusion--Isleta Pueblo
    Through 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.
    Proposed Subunit 6A is unoccupied by the jumping mouse (Bureau of 
Reclamation 2014, entire); therefore, if a Federal action or permitting 
occurs, there may not be a consultation under section 7 of the Act 
unless critical habitat is designated. Our draft economic analysis 
found that if we designate critical habitat on Isleta Pueblo, it is 
expected that consultation would occur with the Bureau of Indian 
Affairs (for actions such as riparian habitat restoration, fire 
management plans, fire suppression, and fuel reduction treatments). 
Federal agencies would be required to ensure their actions do not 
destroy or adversely modify that critical habitat.
    Our economic analysis found that the incremental costs in proposed 
Subunit 6A would be limited to the administrative costs of consultation 
and none related to project modifications recommended by the Service 
during section 7 consultation. We also do not anticipate any formal 
consultations from grazing or recreation if critical habitat were 
designated, primarily because these activities do not occur in the 
proposed unit. Moreover, the types of projects we might anticipate 
(riparian habitat restoration, fire management plans, fire suppression, 
and fuel reduction treatments) would all provide long-term benefits to 
jumping mouse habitat, suggesting that effects to the jumping mouse 
from Federal projects would likely result in insignificant and 
discountable conclusions because conservation measures would be focused 
on habitat improvement and management. Because of how Isleta Pueblo 
manages and conserves their lands, we do not anticipate that Isleta 
Pueblo's actions would considerably change in the future. Therefore, 
the regulatory benefit of critical habitat designation on these lands 
is minimized.
    Another important benefit of including lands in a critical habitat 
designation is that the designation can serve to educate landowners, 
agencies, tribes, and the public regarding the potential conservation 
value of an area, and may help focus conservation efforts on areas of 
high conservation value for certain species. Any information about the 
jumping mouse that reaches a wide audience, including parties engaged 
in conservation activities, is valuable. The designation of critical 
habitat may also strengthen or reinforce some Federal laws such as the 
Clean Water Act. These laws analyze the potential for projects to 
significantly affect the environment. Critical habitat may signal the 
presence of sensitive habitat that could otherwise be missed in the 
review process for these other environmental laws.
    Isleta Pueblo is familiar with the jumping mouse and its habitat 
needs, and has a demonstrated commitment to address management and 
recovery of the flycatcher, silvery minnow, and jumping mouse through 
their revision of the Riverine Management Plan (Pueblo of Isleta 2014, 
entire). Isleta Pueblo lands and the former jumping mouse population on 
those lands has been widely known since the 1980s (Hink and Ohmart 
1984, p. 97; Morrison 1988, pp. 22-27; Frey 2006c, entire). Thus, the 
educational benefits that might follow critical habitat designation, 
such as providing information to Isleta Pueblo on areas that are 
important for the long-term survival and conservation of the 
subspecies, have already been provided. For these reasons, we believe 
there is little educational benefit or support for other laws and 
regulations attributable to critical habitat beyond those benefits 
already achieved from listing the jumping mouse under the Act (79 FR 
33119; June 10, 2014).
Benefits of Exclusion--Isleta Pueblo
    The benefits of excluding Isleta Pueblo from designated critical 
habitat include: (1) The advancement of our Federal Indian Trust 
obligations and our deference to tribes to develop and implement tribal 
conservation and natural resource management plans for their lands and 
resources, which includes the jumping mouse; (2) the conservation 
benefits to the jumping mouse and its habitat through the management 
plan that might not otherwise occur; and (3) the maintenance of 
effective collaboration and cooperation to promote the conservation of 
the jumping mouse and its habitat, and other species.
    We have an effective working relationship with Isleta Pueblo, which 
was established when we proposed critical habitat for the silvery 
minnow (67 FR 39206; June 6, 2002) and has evolved through 
consultations on the flycatcher (69 FR 60706; October 12, 2004) and 
other riparian restoration. During the comment periods, we received 
input from Isleta Pueblo expressing the view that designating jumping 
mouse critical habitat on tribal land would adversely affect the

[[Page 14310]]

Service's working relationship with the Pueblo. They noted that the 
beneficial cooperative working relationship has assisted in the 
conservation of listed species and other natural resources. They 
indicated that critical habitat designation would amount to additional 
Federal regulation of sovereign lands, and would be viewed as an 
unwarranted and unwanted intrusion. Consequently, the development of 
future voluntary management actions for the jumping mouse and other 
listed species may be compromised if these lands are designated as 
critical habitat for the jumping mouse. Thus, a benefit of excluding 
these lands is future conservation efforts that would benefit listed 
species, including the jumping mouse.
    During development of the jumping mouse critical habitat proposal 
(and coordination for other critical habitat proposals such as 
flycatcher and silvery minnow) and other efforts such as development of 
the flycatcher recovery plan, formal consultations, and during 
emergency fire suppression, we have met and communicated with the 
Pueblo to discuss how they might be affected by the regulations 
associated with endangered species management, recovery, the 
designation of critical habitat, and measures to minimize any impacts 
from planned projects as well as emergency actions such as fire 
suppression. As such, we established relationships for the management 
and conservation of endangered species and their habitats. As part of 
our relationship, we have provided technical assistance to develop 
measures to conserve endangered and threatened species and their 
habitats; we expect that the Pueblo will request similar assistance for 
the jumping mouse.
    All of 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 communications with Isleta Pueblo, we 
recognized and endorsed their fundamental right to provide for tribal 
resource management activities, including those relating to riparian 
habitat where the jumping mouse existed historically.
    The updated Riverine Management Plan will continue to provide 
guidance and oversight on the management of endangered species on 
Isleta Pueblo. We find that the Isleta Pueblo's Riverine Management 
Plan is complete and the commitment to implement conservation 
activities described provides significant conservation benefit to the 
jumping mouse, which might not otherwise occur. We believe that the 
resolution passed by the Tribal Council of the Pueblo of Isleta 
concerning the Riverine Management Plan demonstrates that the 
management plan will be implemented. The Riverine Management Plan 
specifically provides periodic updates as appropriate, including 
species updates for the flycatcher, silvery minnow, and jumping mouse.
Benefits of Exclusion Outweigh the Benefits of Inclusion--Isleta Pueblo
    The benefits of including Isleta Pueblo in the critical habitat 
designation are limited to the administrative costs of consultation, 
agency and educational awareness, and the implementation of other law 
and regulations. However, as discussed in detail above, we believe 
these benefits are minimized because they are provided for through 
other mechanisms, such as (1) The advancement of our Federal Indian 
Trust obligations; (2) the conservation benefits to jumping mouse, 
other riparian habitats, and other endangered species from 
implementation of conservation actions under the Riverine Management 
Plan; and (3) the maintenance of effective collaboration and 
cooperation to promote the conservation of the jumping mouse and its 
habitat.
    The benefits of excluding Isleta Pueblo from being designated as 
jumping mouse critical habitat are more significant and include 
encouraging the continued implementation of the Riverine Management 
Plan, which contains conservation actions for the flycatcher, silvery 
minnow, and jumping mouse. Overall, these conservation actions, 
including management of these endangered and threatened species and 
their habitat accomplishes greater conservation than would be available 
through the implementation of a designation of critical habitat on a 
project-by-project basis. Excluding the Pueblo from critical habitat 
will allow Isleta Pueblo to manage their natural resources to benefit 
riparian habitat for the jumping mouse, without the perception of 
Federal Government intrusion. This philosophy is also consistent with 
our published policies on Native American natural resource management. 
The exclusion of these areas will likely also provide additional 
benefits to other listed species that would not otherwise be available 
without the Service maintaining a cooperative working relationship and 
the Riverine Management Plan. In conclusion, we find that the benefits 
of excluding Isleta Pueblo from critical habitat designation outweigh 
the benefits of including these areas. As a result of the assurances, 
protections, and conservation benefit to the Rio Grande ecosystem, the 
flycatcher, the silvery minnow, and the New Mexico meadow jumping mouse 
and their habitats on Pueblo lands, we are excluding this area from 
jumping mouse critical habitat.
Exclusion Will Not Result in Extinction of the Species--Isleta Pueblo
    We have determined that exclusion of Isleta Pueblo will not result 
in extinction of the species. First, the jumping mouse is currently 
extirpated from these areas (Bureau of Reclamation 2014, entire). 
Second, Isleta Pueblo is committed to protecting and managing their 
lands and species found on those lands according to the Riverine 
Management Plan and their tribal, cultural, and natural resource 
management objectives, which provide conservation benefits for the 
jumping mouse and its habitat as well as other listed species. 
Therefore, Isleta Pueblo is committed to greater conservation measures 
on their land than would be available through the designation of 
critical habitat. Accordingly, we have excluded Isleta Pueblo from the 
designation of critical habitat under section 4(b)(2) of the Act 
because the benefits of exclusion outweigh the benefits of inclusion 
and will not cause the extinction of the species.

Ohkay Owingeh

    Ohkay Owingeh Pueblo is located along the Rio Grande just north of 
Espanola in Rio Arriba County, New Mexico, and adjoins the lands of 
Santa Clara Pueblo. The Ohkay Owingeh Pueblo includes the southern or 
downstream end of the Velarde reach of the Rio Grande, and comprises 
the largest contiguous area of generally intact riparian woodland, as 
well as the largest riparian area under the control of a single 
landowner within the Velarde reach. A total of about 16.6 km (10.3 mi) 
of the Rio Grande are located within the Pueblo and over 450 ha (1,100 
acres) of riparian habitat are still extant within the Pueblo 
boundaries. On Ohkay Owingeh (within Subunit 6B in the proposed rule), 
we proposed 51 ha (125 ac) of critical habitat along 4.8 km (3.0 mi) of 
ditches, canals, and marshes within Rio Arriba, County, New Mexico. 
Much of the habitat was historically occupied with individuals detected 
as

[[Page 14311]]

recently as 1988 (Morrison 1988, pp. 28-35; Frey 2006c, entire); 
however, no New Mexico meadow jumping mice were captured during surveys 
conducted recently (Morrison 2012, entire). The entire unit is 
considered unoccupied at the time of listing.
    As analyzed below, we have excluded Ohkay Owingeh from critical 
habitat based on our ongoing conservation partnership where the 
benefits of exclusion from critical habitat outweigh the benefits of 
including an area within critical habitat. We believe that Ohkay 
Owingeh has a demonstrated productive working relationship on a 
Government-to-Government basis with us. The designation of critical 
habitat on Ohkay Owingeh would be expected to adversely impact our 
working relationship. During our discussions with Ohkay Owingeh and 
from comments we received on the proposed designation of critical 
habitat for the jumping mouse, they informed us that critical habitat 
would be viewed as an intrusion on their sovereign abilities to manage 
natural resources. The perceived restrictions of a critical habitat 
designation could have a more damaging effect to coordination efforts, 
possibly preventing actions that might maintain, improve, or restore 
habitat for the jumping mouse and other endangered or threatened 
species like the flycatcher. Therefore, we are excluding Ohkay Owingeh 
based on a variety of voluntary measures, restoration projects, and 
management actions to conserve the jumping mouse and its habitat on 
their lands and their demonstrated productive working relationship on a 
Government-to-Government basis with us.
Benefits of Inclusion--Ohkay Owingeh
    Through 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.
    Proposed Subunit 6B is unoccupied by the jumping mouse (Ohkay 
Owingeh 2014, entire); therefore, if a Federal action or permitting 
occurs, there may not be a consultation under section 7 of the Act 
unless critical habitat is designated. Our draft economic analysis 
found that if we designate critical habitat on Ohkay Owingeh, it is 
expected that consultation would occur with the Bureau of Indian 
Affairs (for actions such as riparian habitat restoration, fire 
management plans, fire suppression, and fuel reduction treatments). 
Federal agencies would be required to ensure their actions do not 
destroy or adversely modify that critical habitat.
    Our section 7 consultation history for another riparian species, 
the flycatcher, shows that since listing in 1995, no formal section 7 
consultations addressing the flycatcher have occurred as a result of 
implementing Federal actions on Ohkay Owingeh. We have conducted 
informal consultations on the flycatcher with agencies implementing 
actions or providing funding and provided the technical assistance on 
project implementation. Effects to the flycatcher from Federal projects 
have all resulted in insignificant and discountable impacts due to 
conservation measures that focused on habitat improvement and 
management for the flycatcher. It would likely be the same scenario for 
the jumping mouse, which has even more restricted habitat than the 
flycatcher on Ohkay Owingeh.
    If we designate critical habitat on Ohkay Owingeh, our previous 
section 7 consultation history for the flycatcher in riparian habitat 
indicates that there could be some, but likely few, regulatory benefits 
to the jumping mouse. Even with flycatchers occurring on Ohkay Owingeh, 
no formal flycatcher-related section 7 consultations have occurred. 
Because no jumping mice currently occur on Ohkay Owingeh, it is even 
more likely that no formal jumping mouse-related section 7 
consultations would occur. Projects initiated by Federal agencies in 
the future would likely only be associated with actions pertaining to 
the implementation of grants or funding of habitat improvement projects 
that would benefit the jumping mouse. Because of how Ohkay Owingeh has 
chosen to manage and conserve their lands and the lack of a past formal 
section 7 consultation history for the flycatcher, we do not anticipate 
that Ohkay Owingeh's actions would considerably change in the future, 
generating a noticeable increase in section 7 consultations that would 
cause impacts to the jumping mouse or its habitat. Therefore, the 
effect of a critical habitat designation on these lands is minimized.
    Our economic analysis found that the incremental costs in proposed 
Subunit 6B would be limited to the administrative costs of consultation 
and none related to project modifications recommended by the Service 
during section 7 consultation. We also do not anticipate any formal 
consultations from grazing or recreation if critical habitat were 
designated, primarily because these activities do not occur in the 
proposed unit. Moreover, the types of projects we might anticipate 
(riparian habitat restoration, fire management plans, fire suppression, 
and fuel reduction treatments) would all provide long-term benefits to 
jumping mouse habitat, suggesting that effects to the jumping mouse 
from Federal projects would likely result in insignificant and 
discountable impacts because conservation measures would be focused on 
habitat improvement and management. Because of how Ohkay Owingeh 
manages and conserves their lands, we do not anticipate that Ohkay 
Owingeh's actions would considerably change in the future. Therefore, 
the regulatory benefit of critical habitat designation on these lands 
is minimized.
    Another important benefit of including lands in a critical habitat 
designation is that the designation can serve to educate landowners, 
agencies, tribes, and the public regarding the potential conservation 
value of an area, and may help focus conservation efforts on areas of 
high conservation value for certain species. Any information about the 
jumping mouse that reaches a wide audience, including parties engaged 
in conservation activities, is valuable. The designation of critical 
habitat may also strengthen or reinforce some Federal laws such as the 
Clean Water Act. These laws analyze the potential for projects to 
significantly affect the environment. Critical habitat may signal the 
presence of sensitive habitat that could otherwise be missed in the 
review process for these other environmental laws.
    Ohkay Owingeh is familiar with the jumping mouse and its habitat 
needs, and has successfully worked with the Service to address jumping 
mouse management and recovery. Further, Ohkay Owingeh lands and the 
former jumping mouse population that once inhabited them has been 
widely known since the 1980s (Morrison 1988, pp. 28-35; Frey 2006c, 
entire). Thus, the educational benefits that might follow critical 
habitat designation, such as providing information to Ohkay Owingeh on 
areas that are important for the long-term survival and conservation of 
the subspecies, have already been provided. For these reasons, we 
believe there is little educational benefit or support for other laws 
and regulations attributable to critical habitat beyond those benefits 
already achieved from listing the jumping mouse under the Act (79 FR 
33119; June 10, 2014).

[[Page 14312]]

Benefits of Exclusion--Ohkay Owingeh
    The benefits of excluding the Pueblo of Ohkay Owingeh from 
designated critical habitat include: (1) The advancement of our Federal 
Indian Trust obligations and our deference to tribes to develop and 
implement tribal conservation and natural resource management plans for 
their lands and resources, which includes the jumping mouse; (2) the 
conservation benefits to the jumping mouse and its habitat that might 
not otherwise occur; and (3) the maintenance of effective collaboration 
and cooperation to promote the conservation of the jumping mouse and 
its habitat, and other species.
    We have an effective working relationship with Ohkay Owingeh, which 
has evolved through consultations on the flycatcher (69 FR 60706; 
October 12, 2004) and other riparian restoration. As part of our 
relationship, we have provided technical assistance to develop measures 
to conserve the flycatcher and its habitat on their lands, as well as 
provided funding for managing jumping mouse habitat and conducting 
surveys. 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 Ohkay Owingeh, we 
recognized and endorsed their fundamental right to provide for tribal 
resource management activities, including those relating to riparian 
habitat.
    During the comment periods, we received input from Ohkay Owingeh 
expressing the view that designating jumping mouse critical habitat on 
tribal land would adversely affect the Service's working relationship. 
They noted that the positive cooperative working relationship has 
assisted in the conservation of listed species and other natural 
resources. They indicated that critical habitat designation would 
amount to additional Federal regulation of sovereign lands, and would 
be viewed as an unwarranted and unwanted intrusion. Consequently, the 
development of future voluntary management actions for the jumping 
mouse and other listed species may be compromised if these lands are 
designated as critical habitat for the jumping mouse. To this end, we 
found Ohkay Owingeh would prefer to work with us on a Government-to-
Government basis. For these reasons, we believe that our working 
relationship would be better maintained if they were excluded from the 
designation of jumping mouse critical habitat. We view this as a 
substantial benefit since we have developed a cooperative working 
relationship that benefits the conservation of endangered and 
threatened species.
    We have coordinated and collaborated with Ohkay Owingeh on the 
management and recovery of the flycatcher, jumping mouse, and their 
habitats and have established a conservation partnership. Many tribes 
and pueblos recognize that their management of riparian habitat and 
conservation of these endangered species are common goals they share 
with the Service. Ohkay Owingeh's management actions are evidence of 
their commitment toward measures to improve riparian habitat for 
endangered species. Some of the common management strategies are 
maintaining riparian conservation areas, preserving habitat, improving 
habitat, reducing occurrence of fire, and conducting surveys (Ohkay 
Owingeh 2005, entire; 2014, entire). Ohkay Owingeh's Environmental 
Affairs Department implements conservation measures to improve riparian 
habitat conditions.
    Ohkay Owingeh 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 the jumping mouse and other listed 
species may be compromised if these lands are designated as critical 
habitat for the jumping mouse. As a result of the cooperative working 
relationship, we are excluding this area from jumping mouse critical 
habitat.
Benefits of Exclusion Outweigh the Benefits of Inclusion--Ohkay Owingeh
    The benefits of including Ohkay Owingeh in the critical habitat 
designation 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, agency and 
educational awareness, and the improved implementation of other laws 
and regulations. However, as discussed in detail above, we believe 
these benefits are minimized because they are provided for through 
other mechanisms, such as (1) The advancement of our Federal Indian 
Trust obligations; (2) the conservation benefits to jumping mouse and 
other endangered species and riparian habitats from implementation of 
conservation actions; and (3) the maintenance of effective 
collaboration and cooperation to promote the conservation of the 
jumping mouse and its habitat.
    The benefits of excluding Ohkay Owingeh from being designated as 
jumping mouse critical habitat are more significant and include 
encouraging the continued implementation of tribal management and 
conservation measures such as monitoring, surveying, habitat management 
and protection, and fire-risk reduction activities that are planned for 
the future or are currently being implemented. Overall, these 
conservation actions and management of riparian habitat likely 
accomplish greater conservation than would be available through the 
implementation of a designation of critical habitat on a project-by-
project basis (especially when formal section 7 consultations rarely 
occur). These programs will allow Ohkay Owingeh to manage their natural 
resources to benefit riparian habitat for the jumping mouse, without 
the perception of Federal Government intrusion. This philosophy is also 
consistent with our published policies on Native American natural 
resource management. The exclusion of these areas will likely also 
provide additional benefits to other listed species that would not 
otherwise be available without the Service's maintaining a cooperative 
working relationship. In conclusion, we find that the benefits of 
excluding Ohkay Owingeh from critical habitat designation outweigh the 
benefits of including these areas.
Exclusion Will Not Result in Extinction of the Species--Ohkay Owingeh
    We have determined that exclusion of Ohkay Owingeh will not result 
in extinction of the species. First, the jumping mouse is currently 
extirpated from these areas. Second, Ohkay Owingeh is committed to 
protecting and managing their lands and species found on those lands 
according to their tribal, cultural, and natural resource management 
objectives, which provide conservation benefits for the jumping mouse 
and its habitat as well as other listed species. In short, Ohkay 
Owingeh is committed to greater conservation measures on their land 
than would be available through the designation of critical habitat. 
Accordingly, we have determined that Ohkay Owingeh should be excluded 
under section 4(b)(2) of the Act because the benefits of exclusion 
outweigh the benefits of inclusion and will not cause the extinction of 
the species.

[[Page 14313]]

Required Determinations

Regulatory Planning and Review (Executive Orders 12866 and 13563)

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

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

    Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.), 
as amended by the Small Business Regulatory Enforcement Fairness Act 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.
    According to the Small Business Administration, small entities 
include small organizations such as independent nonprofit 
organizations; small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents; and small businesses (13 CFR 121.201). Small businesses 
include manufacturing and mining concerns with fewer than 500 
employees, wholesale trade entities with fewer than 100 employees, 
retail and service businesses with less than $5 million in annual 
sales, general and heavy construction businesses with less than $27.5 
million in annual business, special trade contractors doing less than 
$11.5 million in annual business, and agricultural businesses with 
annual sales less than $750,000. To determine if potential economic 
impacts to these small entities are significant, we considered the 
types of activities that might trigger regulatory impacts under this 
designation as well as types of project modifications that may result. 
In general, the term ``significant economic impact'' is meant to apply 
to a typical small business firm's business operations.
    The Service's current understanding of the requirements under the 
RFA, as amended, and following recent court decisions, is that Federal 
agencies are only required to evaluate the potential incremental 
impacts of rulemaking only on those entities directly regulated by the 
rulemaking itself and, therefore, 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 out by the agency is not likely to 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 will 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 are directly regulated by this 
rulemaking, the Service certifies that the critical habitat designation 
will not have a significant economic impact on a substantial number of 
small entities.
    During the development of this final rule, we reviewed and 
evaluated all information submitted during the comment period that may 
pertain to our consideration of the probable incremental economic 
impacts of this critical habitat designation. Based on this 
information, we affirm our certification that this final critical 
habitat designation 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. The 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 is relevant 
to this analysis. Thus, based on information in the economic analysis, 
energy-related impacts associated with the jumping mouse 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:

[[Page 14314]]

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 most of the lands within the 
designated critical habitat do not occur within the jurisdiction of 
small governments. This rule will not produce a Federal mandate of $100 
million or greater in any year. Therefore, it is not a ``significant 
regulatory action'' under the Unfunded Mandates Reform Act. The 
designation of critical habitat imposes no obligations on State or 
local governments. Consequently, we do not believe that the critical 
habitat designation would significantly or uniquely affect small 
government entities. As such, a Small Government Agency Plan is not 
required.

Takings--Executive Order 12630

    In accordance with E.O. 12630 (Government Actions and Interference 
with Constitutionally Protected Private Property Rights), we have 
analyzed the potential takings implications of designating critical 
habitat for the jumping mouse in a takings implications assessment. As 
discussed above, the designation of critical habitat affects only 
Federal actions. Although private parties that receive Federal funding 
or assistance or 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.
    The economic analysis found that no significant economic impacts 
are likely to result from the designation of critical habitat for the 
jumping mouse. Because the Act's critical habitat protection 
requirements apply only to Federal agency actions, few conflicts 
between critical habitat and private property rights should result from 
this designation. Based on information contained in the economic 
analysis and described within this document, economic impacts to a 
property owner are unlikely to be of a sufficient magnitude to support 
a takings action. Therefore, the takings implications assessment 
concludes that this designation of critical habitat for the jumping 
mouse does not pose significant takings implications for lands within 
or affected by the designation. Based on the best available 
information, the takings implications assessment concludes that this 
designation of critical habitat for the jumping mouse does not pose 
significant takings implications.

Federalism--Executive Order 13132

    In accordance with Executive Order 13132 (Federalism), this rule 
does not have significant Federalism effects. A federalism impact 
summary statement is not required. In keeping with Department of the 
Interior and Department of Commerce policy, we requested information 
from, and coordinated development of, this critical habitat designation 
with appropriate State resource agencies in Arizona, Colorado, and New 
Mexico. We received comments from State wildlife agencies of Arizona, 
Colorado, and New Mexico. We have addressed them in the Summary of 
Comments and Recommendations section of this 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 in that the 
areas that contain the physical or biological features essential to the 
conservation of the species are more clearly defined, and the elements 
of the features 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 local governments in long-range planning (rather than having 
them wait for case-by-case section 7 consultations to occur).
    Where State and local governments require approval or authorization 
from a Federal agency for actions that may affect critical habitat, 
consultation under section 7(a)(2) of the Act will 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 Executive 
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 subspecies, the rule identifies the elements of 
physical or biological features essential to the conservation of the 
jumping mouse. 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 the 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

[[Page 14315]]

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 NEPA (42 U.S.C. 4321 et seq.) 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 (1996). However, when the range of the species includes States 
within the Tenth Circuit, such as that of the jumping mouse, 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.
    We performed the NEPA analysis, and drafts of the environmental 
assessment were made available for public comment in the Federal 
Register on April 8, 2014 (79 FR 19307). 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 and finding of no significant impact at http://www.regulations.gov at Docket No. FWS-R2-ES-2013-0014, and at the New 
Mexico Ecological Services Field Office (see FOR FURTHER INFORMATION 
CONTACT).
    We analyzed the potential impacts of critical habitat designation 
on the following resources and resource management types: Fish, 
wildlife, vegetation, floodplains and wetlands, water use and 
management, agriculture, livestock grazing, fire management, highway 
construction and reconstruction, development, energy resources, 
recreation, cultural or historic resources, socioeconomics, and 
environmental justice.
    We found that the designation of critical habitat for the jumping 
mouse 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 increase 
the administrative effort for section 7 consultations to incorporate 
critical habitat considerations and add project modifications to reduce 
impacts to primary constituent elements.
    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.
    We sent notification letters in November 2011, to both the Isleta 
Pueblo and Ohkay Owingeh, describing the exclusion process under 
section 4(b)(2) of the Act, and we have engaged in conversations with 
both tribes about the proposed rule to the extent possible without 
disclosing predecisional information. We sent out notification letters 
on June 20, 2013, notifying the tribes that the proposed rule had 
published in the Federal Register to allow for the maximum time to 
submit comments. On April 8, 2014, we also sent letters notifying the 
tribes that we had made available the draft environmental assessment 
and draft economic analysis in the Federal Register.
    Following their invitation, we met with Isleta Pueblo on August 14, 
2013, and May 6, 2014, to discuss the proposed rule, and their 
endangered species management plan. In addition to the letters sent to 
Ohkay Owingeh and telephone conversations, Ohkay Owingeh did not 
request Government-to-Government consultations or meetings. In 
addition, we sent coordination letters to the Bureau of Indian Affairs 
on September 18, 2013, seeking information for our economic analysis. 
We considered these tribal areas for exclusion from final critical 
habitat designation to the extent consistent with the requirements of 
4(b)(2) of the Act, and subsequently, excluded Isleta Pueblo and Ohkay 
Owingeh from this final designation.

References Cited

    A complete list of references cited in this rulemaking is available 
on the Internet at http://www.regulations.gov, in the May 2014 version 
of the New Mexico Meadow Jumping Mouse Species Status Assessment Report 
(Service 2014), and upon request from the New Mexico Ecological 
Services Field Office (see FOR FURTHER INFORMATION CONTACT).

Authors

    The primary authors of this document are the staff members of the 
New Mexico Ecological Services Field 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--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

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. In Sec.  17.11(h), revise the entry for ``Mouse, New Mexico meadow 
jumping'' under MAMMALS in the List of Endangered and Threatened 
Wildlife, to read as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

[[Page 14316]]



--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Species                                                    Vertebrate
--------------------------------------------------------                        population where                                  Critical     Special
                                                            Historic range       endangered or         Status      When listed    habitat       rules
           Common name                Scientific name                              threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
             Mammals
 
                                                                      * * * * * * *
Mouse, New Mexico meadow jumping.  Zapus hudsonius       U.S. (AZ, CO, NM)..  Entire.............  E                       838     17.95(a)           NA
                                    luteus.
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------


0
3. In Sec.  17.95, amend paragraph (a) by adding an entry for ``New 
Mexico Meadow Jumping Mouse (Zapus hudsonius luteus),'' in the same 
alphabetical 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.
* * * * *

New Mexico Meadow Jumping Mouse (Zapus hudsonius luteus)

    (1) Critical habitat units are depicted for Colfax, Mora, Otero, 
Sandoval, and Socorro Counties in New Mexico; Las Animas, Archuleta, 
and La Plata Counties in Colorado; and Greenlee and Apache Counties in 
Arizona on the maps below.
    (2) Within these areas, the primary constituent elements of the 
physical or biological features essential to the conservation of the 
New Mexico meadow jumping mouse consist of the following:
    (i) Riparian communities along rivers and streams, springs and 
wetlands, or canals and ditches that contain:
    (A) Persistent emergent herbaceous wetlands especially 
characterized by presence of primarily forbs and sedges (Carex spp. or 
Schoenoplectus pungens); or
    (B) Scrub-shrub riparian areas that are dominated by willows (Salix 
spp.) or alders (Alnus spp.) with an understory of primarily forbs and 
sedges; and
    (ii) Flowing water that provides saturated soils throughout the New 
Mexico meadow jumping mouse's active season that supports tall (average 
stubble height of herbaceous vegetation of at least 61 centimeters (24 
inches)) and dense herbaceous riparian vegetation composed primarily of 
sedges (Carex spp. or Schoenoplectus pungens) and forbs, including, but 
not limited to, one or more of the following associated species: 
Spikerush (Eleocharis macrostachya), beaked sedge (Carex rostrata), 
rushes (Juncus spp. and Scirpus spp.), and numerous species of grasses 
such as bluegrass (Poa spp.), slender wheatgrass (Elymus trachycaulus), 
brome (Bromus spp.), foxtail barley (Hordeum jubatum), or Japanese 
brome (Bromus japonicas), and forbs such as water hemlock (Circuta 
douglasii), field mint (Mentha arvense), asters (Aster spp.), or 
cutleaf coneflower (Rudbeckia laciniata); and
    (iii) Sufficient areas of 9 to 24 kilometers (5.6 to 15 miles) 
along a stream, ditch, or canal that contain suitable or restorable 
habitat to support movements of individual New Mexico meadow jumping 
mice; and
    (iv) Adjacent floodplain and upland areas extending approximately 
100 meters (330 feet) outward from the boundary between the active 
water channel and the floodplain (as defined by the bankfull stage of 
streams) or from the top edge of the ditch or canal.
    (3) Critical habitat does not include manmade structures (such as 
buildings, fire lookout stations, runways, roads, and other paved 
areas) and the land on which they are located existing within the legal 
boundaries on April 15, 2016.
    (4) Critical habitat map units. Data layers defining map units were 
created using the USA Contiguous Albers Equal Area Conic USGS version 
projection. The maps in this entry, as modified by any accompanying 
regulatory text, establish the boundaries of the critical habitat 
designation. The coordinates or plot points or both on which each map 
is based are available to the public at the Service's internet site 
http://www.fws.gov/southwest/es/NewMexico/, at http://www.regulations.gov at Docket No. FWS-R2-ES-2013-0014, and at the New 
Mexico Ecological Services Field Office. You may obtain field office 
location information by contacting one of the Service regional offices, 
the addresses of which are listed at 50 CFR 2.2.
    (5) Note: General Locations of Critical Habitat for the New Mexico 
Meadow Jumping Mouse--Overview, follows:
BILLING CODE 4333-15-C

[[Page 14317]]

[GRAPHIC] [TIFF OMITTED] TR16MR16.002


[[Page 14318]]


    (6) Unit 1--Sugarite Canyon. Map follows:
    [GRAPHIC] [TIFF OMITTED] TR16MR16.003
    

[[Page 14319]]


    (7) Unit 2--Coyote Creek. Map follows:
    [GRAPHIC] [TIFF OMITTED] TR16MR16.004
    

[[Page 14320]]


    (8) Unit 3--Jemez Mountains. Map follows:
    [GRAPHIC] [TIFF OMITTED] TR16MR16.005
    

[[Page 14321]]


    (9) Unit 4--Sacramento Mountains. Map follows:
    [GRAPHIC] [TIFF OMITTED] TR16MR16.006
    

[[Page 14322]]


    (10) Unit 5--White Mountains. Map follows:
    [GRAPHIC] [TIFF OMITTED] TR16MR16.007
    

[[Page 14323]]


    (11) Unit 6--Bosque del Apache National Wildlife Refuge (NWR). Map 
follows:
[GRAPHIC] [TIFF OMITTED] TR16MR16.008


[[Page 14324]]


    (12) Unit 7--Florida River. Map follows:
    [GRAPHIC] [TIFF OMITTED] TR16MR16.009
    

[[Page 14325]]


    (13) Unit 8--Sambrito Creek. Map follows:
    [GRAPHIC] [TIFF OMITTED] TR16MR16.010
    
* * * * *

    Dated: March 7, 2016.
Karen Hyun,
Acting Principal Deputy Assistant Secretary for Fish and Wildlife and 
Parks.
[FR Doc. 2016-05912 Filed 3-15-16; 8:45 am]
 BILLING CODE 4333-15-P