Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Sonoyta Mud Turtle, 62778-62794 [2018-26388]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 83, Number 234 (Thursday, December 6, 2018)]
[Proposed Rules]
[Pages 62778-62794]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-26388]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R2-ES-2017-0014; 4500090023]
RIN 1018-BD53


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for Sonoyta Mud Turtle

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
designate critical habitat for the Sonoyta mud turtle (Kinosternon 
sonoriense longifemorale) under the Endangered Species Act of 1973, as 
amended (Act). In total, approximately 12.28 acres (4.97 hectares) in 
Pima County, Arizona, located entirely within Organ Pipe Cactus 
National Monument, fall within the boundaries of the proposed critical 
habitat designation. If we finalize this rule as proposed, it would 
extend the Act's protections to this subspecies' critical habitat. We 
also announce the availability of a draft economic analysis of the 
proposed designation of critical habitat for the Sonoyta mud turtle.

DATES: We will accept comments on the proposed rule or draft economic 
analysis that are received or postmarked on or before February 4, 2019. 
Comments submitted electronically using the Federal eRulemaking Portal 
(see ADDRESSES, below) must be received by 11:59 p.m. Eastern Time on 
the closing date. We must receive requests for public hearings, in 
writing, at the address shown in FOR FURTHER INFORMATION CONTACT by 
January 22, 2019.

ADDRESSES: Written comments: You may submit comments on the proposed 
rule

[[Page 62779]]

or draft economic analysis by one of the following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov. In the Search box, enter FWS-R2-ES-2017-0014, 
which is the docket number for this rulemaking. Then, click on the 
Search button. On the resulting page, in the panel on the left side of 
the screen, under the Document Type heading, click on the Proposed 
Rules link to locate this document. You may submit a comment by 
clicking on ``Comment Now!''
    (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public 
Comments Processing, Attn: FWS-R2-ES-2017-0014, U.S. Fish and Wildlife 
Service, MS: BPHC, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
    We request that you send comments only by the methods described 
above. We will post all comments on https://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see Information Requested, below, for more information).
    Document availability: The draft economic analysis and the species 
status assessment report (SSA Report) are available online at https://www.fws.gov/southwest/es/arizona/ and at https://www.regulations.gov 
under Docket No. FWS-R2-ES-2017-0014, and at the Arizona Ecological 
Services Field Office (see FOR FURTHER INFORMATION CONTACT).
    The coordinates or plot points or both from which the map was 
generated are included in the administrative record for this critical 
habitat designation and are available online at https://www.fws.gov/southwest/es/arizona/ and at https://www.regulations.gov under Docket 
No. FWS-R2-ES-2017-0014, and in person at the Arizona Ecological 
Services Field Office (see FOR FURTHER INFORMATION CONTACT). Any 
additional tools or supporting information that we may develop for this 
critical habitat designation will also be available at the Fish and 
Wildlife Service website and Field Office set out above, and may also 
be available on https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Field Supervisor, U.S. Fish and 
Wildlife Service, Arizona Ecological Services Field Office, Fish and 
Wildlife Office, 9828 North 31st Ave. #C3, Phoenix, AZ 85051-2517; 
telephone 602-242-0210; facsimile 602-242-2513. If you use a 
telecommunications device for the deaf (TDD), call the Federal Relay 
Service at 800-877-8339.

SUPPLEMENTARY INFORMATION: 

Executive Summary

    The basis for our action. Section 4(b)(2) of the Act states that 
the Secretary of the Interior shall designate and make revisions to 
critical habitat on the basis of the best available scientific data 
after taking into consideration the economic impact, the impact on 
national security, and any other relevant impact of specifying any 
particular area as critical habitat. The Secretary may exclude an area 
from critical habitat if he determines that the benefits of such 
exclusion outweigh the benefits of specifying such area as part of the 
critical habitat, unless he determines, based on the best scientific 
data available, that the failure to designate such area as critical 
habitat will result in the extinction of the species.
    Why we need to publish a rule. Under the Act, any species that is 
determined to be endangered or threatened requires critical habitat to 
be designated, to the maximum extent prudent and determinable. 
Designations and revisions of critical habitat can only be completed by 
issuing a rule. This is a proposed rule to designate critical habitat 
for the Sonoyta mud turtle under the Act. Supplemental documentation 
includes a draft economic analysis and species status assessment.

Information Requested

    We intend that any final action resulting from this proposed rule 
will be based on the best scientific data available and be as accurate 
and as effective as possible. Therefore, we request comments or 
information from other concerned government agencies, the scientific 
community, industry, or any other interested party concerning this 
proposed rule. We particularly seek comments concerning:
    (1) The reasons why we should or should not designate habitat as 
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et 
seq.) including whether there are threats to the subspecies from human 
activity, the degree of which can be expected to increase due to the 
designation, and whether that increase in threat outweighs the benefit 
of designation such that the designation of critical habitat may not be 
prudent.
    (2) Specific information on:
    (a) The amount and distribution of Sonoyta mud turtle habitat;
    (b) What areas, occupied at the time of listing and that contain 
the physical or biological features essential to the conservation of 
the subspecies, should be included in the designation and why;
    (c) Special management considerations or protection that may be 
needed in critical habitat areas we are proposing, including managing 
for the potential effects of climate change;
    (d) What areas not occupied at the time of listing are essential 
for the conservation of the subspecies and why; and
    (e) Current habitat information within the Rio Sonoyta watershed 
and whether any potential habitat areas there may be essential to the 
conservation of the Sonoyta mud turtle.
    (3) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat.
    (4) Information on the projected and reasonably likely impacts of 
climate change on the Sonoyta mud turtle and proposed critical habitat.
    (5) Any probable economic, national security, or other relevant 
impacts of designating any area that may be included in the final 
designation, and the benefits of including or excluding areas that may 
be impacted.
    (6) Information on the extent to which the description of probable 
economic impacts in the draft economic analysis is a reasonable 
estimate of the likely economic impacts of the designation.
    (7) Whether any specific areas we are proposing for critical 
habitat designation should be considered for exclusion under section 
4(b)(2) of the Act, and whether the benefits of potentially excluding 
any specific area outweigh the benefits of including that area under 
section 4(b)(2) of the Act.
    (8) The likelihood of adverse social reactions to the designation 
of critical habitat, as discussed in the draft economic analysis, and 
how the consequences of such reactions, if likely to occur, would 
relate to the conservation and regulatory benefits of the proposed 
critical habitat designation.
    (9) Whether we could improve or modify our approach to designating 
critical habitat in any way to provide for greater public participation 
and understanding, or to better accommodate public concerns and 
comments.
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in ADDRESSES. We request that you 
send comments only by the methods described in ADDRESSES.
    All comments submitted electronically via https://www.regulations.gov will be presented on the website in their entirety 
as submitted. For comments submitted via hard copy, we will post your 
entire comment--including your personal identifying information--on 
https://www.regulations.gov. You may request

[[Page 62780]]

at the top of your document that we withhold personal information such 
as your street address, phone number, or email address from public 
review; however, we cannot guarantee that we will be able to do so.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection on https://www.regulations.gov, or by 
appointment, during normal business hours, at the U.S. Fish and 
Wildlife Service, Arizona Ecological Services Field Office (see FOR 
FURTHER INFORMATION CONTACT).

Previous Federal Actions

    The final rule listing the Sonoyta mud turtle as endangered was 
published in the Federal Register on September 20, 2017 (82 FR 43897). 
All other previous Federal actions are described in the proposed rule 
to list Sonoyta mud turtle as an endangered species under the Act, 
published in the Federal Register on September 21, 2016 (81 FR 64829).

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.
    Our regulations at 50 CFR 424.02 define the geographical area 
occupied by the species as an area that may generally be delineated 
around species' occurrences, as determined by the Secretary of the 
Interior (i.e., range). Such areas may include those areas used 
throughout all or part of the species' life cycle, even if not used on 
a regular basis (e.g., migratory corridors, seasonal habitats, and 
habitats used periodically, but not solely by vagrant individuals).
    Conservation, as defined under section 3 of the Act, means to use 
and the use of all methods and procedures that are necessary to bring 
an endangered or threatened species to the point at which the measures 
provided pursuant to the Act are no longer necessary. Such methods and 
procedures include, but are not limited to, all activities associated 
with scientific resources management such as research, census, law 
enforcement, habitat acquisition and maintenance, propagation, live 
trapping, and transplantation, and, in the extraordinary case where 
population pressures within a given ecosystem cannot be otherwise 
relieved, may include regulated taking.
    Critical habitat receives protection under section 7 of the Act 
through the requirement that Federal agencies ensure, in consultation 
with the Service, that any action they authorize, fund, or carry out is 
not likely to result in the destruction or adverse modification of 
critical habitat. The designation of critical habitat does not affect 
land ownership or establish a refuge, wilderness, reserve, preserve, or 
other conservation area. Such designation does not allow the government 
or public to access private lands. Such designation does not require 
implementation of restoration, recovery, or enhancement measures by 
non-Federal landowners. Where a landowner requests Federal agency 
funding or authorization for an action that may affect a listed species 
or critical habitat, the consultation requirements of section 7(a)(2) 
of the Act would apply, but even in the event of a destruction or 
adverse modification finding, the obligation of the Federal action 
agency and the landowner is not to restore or recover the species, but 
to implement reasonable and prudent alternatives to avoid destruction 
or adverse modification of critical habitat.
    Under the first prong of the Act's definition of critical habitat, 
areas within the geographical area occupied by the species at the time 
it was listed are included in a critical habitat designation if they 
contain physical or biological features (1) which are essential to the 
conservation of the species and (2) which may require special 
management considerations or protection. For these areas, critical 
habitat designations identify, to the extent known using the best 
scientific and commercial data available, those physical or biological 
features that are essential to the conservation of the species (such as 
space, food, cover, and protected habitat). In identifying those 
physical or biological features within an area, we focus on the 
specific features that support the life-history needs of the species, 
including, but not limited to, water characteristics, soil type, 
geological features, prey, vegetation, symbiotic species, or other 
features. A feature may be a single habitat characteristic, or a more 
complex combination of habitat characteristics. Features may include 
habitat characteristics that support ephemeral or dynamic habitat 
conditions. Features may also be expressed in terms relating to 
principles of conservation biology, such as patch size, distribution 
distances, and connectivity.
    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. We will determine whether unoccupied areas are essential for 
the conservation of the species by considering the life-history, 
status, and conservation needs of the species. This will be further 
informed by any generalized conservation strategy, criteria, or outline 
that may have been developed for the species to provide a substantive 
foundation for identifying which features and specific areas are 
essential to the conservation of the species and, as a result, the 
development of the critical habitat designation. 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.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific data available. Further, our Policy on 
Information Standards Under the 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 from the species status assessment document and information 
developed during the listing process for the species. Additional 
information sources may include any generalized conservation strategy, 
criteria, or outline that may have been developed for the species, the

[[Page 62781]]

recovery plan for the species, articles in peer-reviewed journals, 
conservation plans developed by States and counties, scientific status 
surveys and studies, biological assessments, other unpublished 
materials, or experts' opinions or personal knowledge.
    Habitat is dynamic, and species may move from one area to another 
over time. We recognize that critical habitat designated at a 
particular point in time may not include all of the habitat areas that 
we may later determine are necessary for the recovery of the species. 
For these reasons, a critical habitat designation does not signal that 
habitat outside the designated area is unimportant or may not be needed 
for recovery of the species. Areas that are important to the 
conservation of the species, both inside and outside the critical 
habitat designation, will continue to be subject to: (1) Conservation 
actions implemented under section 7(a)(1) of the Act, (2) regulatory 
protections afforded by the requirement in section 7(a)(2) of the Act 
for Federal agencies to ensure their actions are not likely to 
jeopardize the continued existence of any endangered or threatened 
species, and (3) 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 the 
species. Similarly, critical habitat designations made on the basis of 
the best available information at the time of designation will not 
control the direction and substance of future recovery plans, habitat 
conservation plans (HCPs), or other species conservation planning 
efforts if new information available at the time of these planning 
efforts calls for a different outcome.

Prudency Determination

    Section 4(a)(3) of the Act, as amended, and implementing 
regulations (50 CFR 424.12), require that, to the maximum extent 
prudent and determinable, the Secretary shall designate critical 
habitat at the time the species is determined to be an endangered or 
threatened species. Our regulations (50 CFR 424.12(a)(1)) state that 
the designation of critical habitat is not prudent when one or both of 
the following situations exist:
    (1) The species is threatened by taking or other human activity, 
and identification of critical habitat can be expected to increase the 
degree of threat to the species, or
    (2) Such designation of critical habitat would not be beneficial to 
the species. In determining whether a designation would not be 
beneficial, the factors the Service may consider include but are not 
limited to: Whether the present or threatened destruction, 
modification, or curtailment of a species' habitat or range is not a 
threat to the species, or whether any areas meet the definition of 
``critical habitat.''
    As discussed in the final rule listing the Sonoyta mud turtle as an 
endangered species (82 FR 43897; September 20, 2017), there is 
currently no imminent threat of take attributed to collection or 
vandalism identified under Factor B (overutilization for commercial, 
recreational, scientific, or educational purposes) for this subspecies, 
and identification and mapping of critical habitat is not expected to 
initiate any such threat. In the absence of finding that the 
designation of critical habitat would increase threats to a species, we 
next determine whether such designation of critical habitat would not 
be beneficial to the species. As discussed in our final listing rule, 
we determined that the present destruction, modification, or 
curtailment of a species' habitat or range is a threat to the Sonoyta 
mud turtle. Therefore, because we have determined that the designation 
of critical habitat will not likely increase the degree of threat to 
the subspecies and would be beneficial, we find that designation of 
critical habitat is prudent for the Sonoyta mud turtle.

Critical Habitat Determinability

    Having determined that designation is prudent, under section 
4(a)(3) of the Act, we must find whether critical habitat for the 
Sonoyta mud turtle is determinable. Our regulations at 50 CFR 
424.12(a)(2) state that critical habitat is not determinable when one 
or both of the following situations exist:
    (1) Data sufficient to perform required analyses are lacking, or
    (2) The biological needs of the species are not sufficiently well 
known to identify any area that meets the definition of ``critical 
habitat.''
    On September 20, 2017, our final listing rule (82 FR 43897) 
concluded that critical habitat was not determinable at that time. When 
critical habitat is not determinable at the time of listing, the Act 
allows the Service an additional year to publish a critical habitat 
designation (16 U.S.C. 1533(b)(6)(C)(ii)). Therefore, the Act requires 
that we publish a rule for critical habitat by September 20, 2018. As 
required by section 4(b)(2) of the Act, we use the best scientific data 
available to designate critical habitat after taking into consideration 
the economic impact, national security impact, and any other relevant 
impact of specifying any particular area as critical habitat. We have 
reviewed the available information pertaining to the biological needs 
of the subspecies and habitat characteristics where this subspecies is 
located. This and other information represent the best scientific data 
available for the proposed designation of critical habitat for the 
Sonoyta mud turtle.

Physical or Biological Features

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12(b), 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. For example, physical 
features might include gravel of a particular size required for 
spawning, alkali soil for seed germination, protective cover for 
migration, or susceptibility to flooding or fire that maintains 
necessary early-successional habitat characteristics. Biological 
features might include prey species, forage grasses, specific kinds or 
ages of trees for roosting or nesting, symbiotic fungi, or a particular 
level of nonnative species consistent with conservation needs of the 
listed species. The features may also be combinations of habitat 
characteristics and may encompass the relationship between 
characteristics or the necessary amount of a characteristic needed to 
support the life history of the species. In considering whether 
features are essential to the conservation of the species, the Service 
may consider an appropriate quality, quantity, and spatial and temporal 
arrangement of habitat characteristics in the context of the life-
history needs, condition, and status of the species. These 
characteristics include, but are not limited to, space for individual 
and population growth and for normal behavior; food, water, air, light, 
minerals, or other nutritional or physiological requirements; cover or 
shelter; sites for breeding, reproduction, or rearing (or development) 
of offspring; and habitats that are protected from disturbance.
    We conducted a species status assessment for Sonoyta mud turtle, 
which is an evaluation of the best available scientific and commercial 
data on the status of the subspecies. The

[[Page 62782]]

species status assessment report (SSA Report; Service 2017, which is 
available at https://www.fws.gov/southwest/es/arizona/Sonoyta.html and 
at https://www.regulations.gov under Docket No. FWS-R2-ES-2017-0014) is 
based on a thorough review of the natural history, habitats, ecology, 
populations, and range of the Sonoyta mud turtle, and risks to the 
subspecies. The SSA Report provides the scientific information upon 
which this proposed critical habitat designation is based.
    The Sonoyta mud turtle is a freshwater turtle encountered in or 
near water in an otherwise arid environment that commonly experiences 
drought and extreme heat (ambient temperatures can exceed 45 degrees 
Celsius ([deg]C) (113 degrees Fahrenheit ([deg]F)). Sonoyta mud turtles 
depend on aquatic habitat with adjacent terrestrial habitat for life-
history functions. Aquatic habitat consists of streams and natural and 
manmade ponds with perennial or near-perennial (water present more than 
11 months of the year for multiple years) sources of water. Terrestrial 
habitat consists of riparian areas along water sources that maintain 
moist soil and a cooler environment than adjacent uplands. Much of the 
information on resource needs of the Sonoyta mud turtle subspecies is 
inferred from work on the nominate subspecies, Sonora mud turtle 
(Kinosternon sonoriense sonoriense), and noted accordingly in the text 
that follows.
    Aquatic habitat in ponds and streams is usually shallow water to 2 
meters (m) (7 feet (ft)) deep, with a rocky, muddy, or sandy substrate, 
and emergent or submergent vegetation, or both (NPS 2015, p. 2; 
Paredes-Aguilar and Rosen 2003, pp. 5-7; Rosen 2003, p. 5; Rosen et al. 
207, p. 14). Sonoyta mud turtles need perennial or near-perennial 
surface water for feeding, for protection from predators, to prevent 
desiccation, and for mating. Hatchling, juvenile, and sub-adult turtles 
prefer aquatic habitat with shallow water and dense emergent vegetation 
that provides foraging opportunities as well as protection from 
predators (Rosen 1986, pp. 14, 36; Rosen and Lowe 1996, p. 11). 
Emergent aquatic vegetation includes plants such as cattail (Typha 
domingensis), spikerush (Eleocharis geniculata), and travelling 
spikerush (Eleocharis rostellata) (Felger et al. 1992, pp. 33, 36). 
Adults will also use shallow water habitat, but prefer aquatic habitat 
with deeper (up to 2 m (7 ft)) open water (with no or little vegetation 
growing in the water column), and submerged vegetation for feeding on 
benthic and plant-crawling invertebrates along the substrate (Rosen 
1986, pp. 14, 16; Rosen and Lowe 1996, p. 11). American bulrush 
(Schoenoplectus americanus), an introduced nonnative plant species, and 
the native cattails can encroach into open water used by Sonoyta mud 
turtles. Historically, Sonoyta mud turtles occurred in rivers or 
cienegas with a natural ecosystem that maintained aquatic vegetation 
suitable to the Sonoyta mud turtle's needs. However, habitat at some 
Sonoyta mud turtle locations has been altered from this natural 
ecosystem to ponded water maintained by water control structures. 
American bulrush and cattails encroach these ponded sites such that 
open water is eliminated. Consequently, mechanical removal of American 
bulrush and cattails may be needed periodically to maintain patches of 
open water. The submerged aquatic vegetation required for prey includes 
plants such as holly-leaved water nymph (Najas marina), slender 
pondweed (Potamogeton pectinatus), ditch-grass (Ruppia maritima), and 
horned pondweed (Zannichellia palustris) (Felger et al. 1992, p. 36).
    Reduced water levels would reduce overall habitat amount (water and 
vegetation) and quality, causing crowding and increased competition for 
remaining, limited resources such as cover and prey (Stanila 2009, p. 
45). A reduction in water and emergent vegetation would likely reduce 
the amount of space and invertebrate prey for Sonoyta mud turtles. 
Large adult Sonora mud turtles have exhibited site fidelity to specific 
pools in a stream channel (Hall and Steidl, 2007, p. 410), and although 
not studied, this could also be true for the Sonoyta mud turtle. As a 
result, lower water levels could reduce carrying capacity and increase 
overlap of adult Sonoyta mud turtle territory. Adequate prey allows 
juvenile turtles to grow rapidly and allows adults to have sufficient 
lipid content to support reproduction. Poor body condition (i.e., low 
lipids) may be associated with lower clutch size (total number of eggs 
produced) and, therefore, lower population growth (Rosen and Lowe 1996, 
pp. 40-43). Sonoyta mud turtles in dry or low surface water reaches 
would burrow in channels to escape desiccation for a short period of 
time. Over time, however, burrows themselves may become too dry; 
turtles will lose fat reserves due to lack of foraging opportunity. If 
adult Sonoyta mud turtles mate during or after losing fat reserves, 
females may not have viable eggs due to lack of nutrition and fat 
reserves, and eventually turtles will die from either starvation or 
desiccation. Potential population-level impacts include lower 
reproductive rates, reduced recruitment, reduced population growth 
rate, and changes in distribution.
    Sonoyta mud turtles are opportunistic carnivores, feeding primarily 
on aquatic invertebrates that live on emergent and submergent 
vegetation or the substrate of ponds and streams (Rosen 1986, pp. 14, 
31; Rosen and Lowe 1996, pp. 32-35). Sonoyta mud turtle hatchlings and 
juveniles feed on littoral invertebrate fauna, while subadults and 
adults prefer benthic and plant-crawling invertebrates (Hulse 1974, pp. 
197-198; Lovich et al. 207, pp. 135-136; Rosen 1986, pp. 14, 31; Rosen 
and Lowe 1996, pp. 32-35; Stanila et al. 2008, p. 42). In habitats with 
poor aquatic invertebrate faunas, Sonoyta mud turtles will shift to 
omnivorous feeding, including plants and vertebrates such as fish 
(Rosen and Lowe 1996, pp. 32-35). However, where fish are abundant, 
Sonoyta mud turtles catch few of them (Rosen and Lowe 1996, p. 32). 
Sonora mud turtles are also known to consume other vertebrates 
including toads, and even reptiles and birds when available for capture 
(Ligon and Stone 2003, entire; Stone et al. 2005, entire). Analysis of 
stomach contents of the Sonora mud turtle revealed animal material 
represented 69.0-93.6 percent total volume, with plant material making 
up the remaining volume (Hulse 1974, p. 197). Aquatic invertebrates 
found in the stomach contents of Sonora mud turtles included members of 
11 invertebrate orders such as dragonflies (Anisoptera), caddisflies 
(Trichoptera), flies (Diptera), beetles (Coleoptera), and aquatic snail 
species (Basommatophora). Aquatic invertebrates require submergent or 
emergent vegetation and a variety of prey, such as algae, diatoms, and 
other microorganisms.
    Sonoyta mud turtles need aquatic habitat free of nonnative 
predators and competitors. Aquatic habitat with nonnative predators, 
including crayfish (Orconectes spp. and Cherax spp.), American 
bullfrogs (Lithobates catesbeianus), and sunfish (centrarchids), could 
decrease population stability or potentially decimate populations of 
the Sonoyta mud turtle (Drost et al. 207, pp. 33-34; Hensley et al. 
207, pp. 186-187; Fernandez and Rosen 1996, pp. 39-41). These species, 
along with black bullheads (Ameiurus melas), African cichlid fishes 
(tilapia), western mosquitofish (Gambusia affinis), and exotic turtles, 
compete with mud turtles for food or disrupt the food chain, which 
could alter the invertebrate community (Taylor et al. 1984, pp. 330-

[[Page 62783]]

331; Fernandez and Rosen 1996, pp. 39-40; Duncan 2013, p. 1). Such 
competition, in turn, could decrease type and amount of aquatic 
invertebrate prey available to Sonoyta mud turtles (Fernandez and Rosen 
1996, pp. 39-40).
    Because high average annual juvenile survivorship is required for 
populations of long-lived organisms to maintain population stability 
(Congdon et al. 1993, pp. 831-832; Congdon et al. 1994, pp. 405-406), 
nonnative predators that reduce recruitment into Sonoyta mud turtle 
populations could cause population declines. Bullfrogs and crayfish are 
known predators of hatchling and juvenile turtles of the Sonora mud 
turtle (Fernandez and Rosen 1996, pp. 33-43; Akins and Jones 207, p. 
343; Hensley et al. 207, pp. 186-187; Schwendiman 2001, p. 39), and 
would likely eat hatchling Sonoyta mud turtles if introduced. 
Populations of the Sonora mud turtle have coexisted with moderate and 
high densities of bullfrogs (Rosen and Schwalbe 2002, p. 230). However, 
a high density of bullfrogs may reduce population density of mud 
turtles (van Lobel Sells 1997, p. 343). Crayfish are detrimental to 
populations of the Sonora mud turtle and not only prey on small mud 
turtles, but likely compete with them for native aquatic invertebrate 
food sources (Fernandez and Rosen 1996, pp. 39-40). One study 
documented cessation of Sonora mud turtle recruitment 2 years after 
crayfish introduction to an area that had supported a population of 
approximately 1,000 Sonora mud turtles (Fernandez and Rosen 1996, pp. 
40-41). Large sunfish, such as largemouth bass (Micropterus salmoides), 
also have the potential to reduce recruitment in populations of Sonora 
mud turtles because their large gape (external mouth width) makes it 
possible for them to prey on hatchling and juvenile Sonoyta mud turtles 
(Stanila 2009, p. 50). Largemouth bass are known to eat other aquatic 
turtle species, and Rosen (1987, p. 6) reported the lowest population 
densities of Sonora mud turtles in habitats with largemouth bass.
    Adult and juvenile Sonoyta mud turtles use aquatic habitat with 
complex structure that provides protection from predators such as root 
masses, rock features, and undercut banks (Rosen 1986, pp. 14, 16; 
Rosen and Lowe 1996, p. 11). Shallow water areas with dense emergent 
vegetation also provides protection from predators for hatchlings, 
juveniles, and adults. Overhanging riparian vegetation along the stream 
channel or pond margin and soil burrows under overhanging banks provide 
some protection from predators for turtles in the water near the 
shoreline. Riparian vegetation may also provide some level of 
protection from terrestrial predators while turtles are out of the 
water.
    Terrestrial habitat that maintains soil moisture for Sonoyta mud 
turtles occurs in riparian areas along the banks of ponds and streams, 
and in intermittently dry sections of stream channels. Riparian habitat 
provides shadier, cooler, and moister conditions than the adjacent 
upland areas. Sonoyta mud turtles require moist soil for nesting to 
prevent desiccation of eggs and for estivation (a state of dormancy) 
sites to prevent desiccation of hatchlings, juveniles, and adults. 
Riparian vegetation includes plants such as Fremont cottonwood (Populus 
fremontii), Goodding willow (Salix gooddingii), honey mesquite 
(Prosopis glandulosa), screwbean mesquite (P. pubescens), seepwillow 
(Baccharis salicifolia), greythorn (Ziziphus obtusifolia), wolfberry 
(Lycium spp.), salt grass (Distichlis spicata), and arrowweed (Pluchea 
sericea) (Felger et al. 1992, p. 4).
    Sonoyta mud turtles need accessible shoreline without 
insurmountable rock or artificial vertical barriers to allow for 
movement between wetted sites, between aquatic habitat and terrestrial 
nest sites, and between water and estivation (dormancy during drought) 
sites. Sonora mud turtles in dry or low surface water conditions may 
either travel along dry intermittent sections of a stream to find water 
or they will estivate (Hall and Steidl 2007, p. 406; Hensley et al. 
207, pp. 181-182; Ligon and Stone 2003, pp. 752-753; Stone 2001, pp. 
46-49). Sonora mud turtles that live in permanent bodies of water have 
shown highly aquatic behavior with little terrestrial behavior or 
movement between water sources, while Sonora mud turtles in more 
ephemeral habits have been documented moving through or out of dry 
stream beds to reach wetted pools, for winter hibernation, or for 
estivation during drought as a drought-survival strategy (Hall and 
Steidl 2007, pp. 406-408; Hensley et al. 207, pp. 181-182; Ligon and 
Stone 2003, pp. 752-753; Stone 2001, pp. 46-51).
    Sonora mud turtles can endure lack of surface water for a short 
time and have been documented estivating in the wild for 11 to 34 days 
(Ligon and Stone 2003, p. 752), and once for up to 68 days (Ligon and 
Stone 2002, entire; Ligon and Stone 2003, p. 753). However, prolonged 
and recurrent estivation is expected to reduce fitness and increase 
mortality (Peterson and Stone 2000, pp. 692-698). Terrestrial 
estivation sites consisted of depressions under vegetation, soil, or 
organic matter; in rock crevices; or in soil burrows under overhanging 
banks of streams or ponds. One study found Sonora mud turtles 
estivating up to 79 m (259 ft) from a streambed during summer even when 
water was available, with mud turtles using clumps of vegetation or 
spaces under large rocks in the terrestrial environment (Ligon and 
Stone 2003, pp. 752-753).
    Estivation has not been verified in the Sonoyta mud turtle, and 
physiological tolerances for estivation are unknown. However, Sonoyta 
mud turtles have been found in burrows up to 1 m (3.3 ft) deep in 
stream banks, presumably using these burrows to escape from predators 
(Paredes-Aguilar and Rosen 2003, p. 8) or for drought refuge. Further, 
based on the physiological requirements of the Sonora mud turtle and 
the arid environment in which the Sonoyta mud turtle lives, we believe 
that they estivate during times of little or no surface water.
    Long-distance movements of Sonora mud turtles exceeding 7 
kilometers (5 miles) in straight-line distance occurred between aquatic 
habitats. Such movements may reduce reproductive isolation and lower 
the probability of extirpation of populations (Hall and Steilde 2007, 
p. 408; Hensley et al. 207, pp. 181-182; Stone et al. 2015, p. 736). 
Although not well-studied, no movement of Sonoyta mud turtles of these 
magnitudes has been documented, and restrictions associated with their 
extreme arid environment may reduce such movements (P. Rosen 2016, 
pers. comm.). Dispersal habitat along drainages is likely needed to 
maintain connectivity between populations of the Sonoyta mud turtle on 
a rangewide scale.
    The Sonora mud turtle is known to mate from April to October, and 
female Sonora and Sonoyta mud turtles lay eggs from mid to late July 
through September in vegetation litter, soil burrows, and rock crevices 
up to 52 m (171 ft) away from water (Rosen and Lowe 1996, pp. 21, 23; 
Stone et al. 2015, p. 735; D. Hall 2016, pers. comm.; Rosen 1986, p. 7; 
A. Owens 2007, pers. comm.; P. Holm 2016, pers. comm.). Eggs may 
undergo embryonic diapause in the nest for 11 months after being laid, 
with hatchlings emerging the following year (van Loben Sels et al. 
1997, p. 343; Ernst and Lovich 2009, p. 497; Stone et al. 2015, p. 
735). In mid to late July through September, females leave the water 
briefly to lay eggs in terrestrial nests that maintain some level of 
moisture. Three presumed nest sites have been observed for the Sonoyta 
mud turtle that indicate this subspecies uses nest sites similar to

[[Page 62784]]

the Sonora mud turtle. The only potential nesting behavior of the 
Sonoyta mud turtle observed was a gravid female, ``apparently preparing 
to lay eggs,'' digging 15 centimeters (cm) (6 inches (in)) into the 
soil in a mesquite bosque (cluster of trees along a stream) 9 m (30 ft) 
from the edge of the pond at Quitobaquito Springs (Rosen and Lowe 1996, 
p. 23). A second turtle nest site was found in a small cavity (5 by 5 
cm (2 by 2 in)) within a 3 m (10 ft) high soil bank that runs next to 
the spring-fed channel leading to the pond at Quitobaquito Springs (A. 
Owens 2007, pers. comm.). The third nest site was found in a small 
depression in soil beneath a piece of tree bark on top of an undercut 
bank at the edge the pond at Quitobaquito Springs (P. Holm 2016, pers. 
comm.).

Summary of Essential Physical or Biological Features

    We derive the specific physical or biological features essential 
for Sonoyta mud turtle from studies of the Sonora mud turtle, used as a 
proxy, of this subspecies' habitat, ecology, and life history, as 
described above. Additional information can be found in the proposed 
listing rule (81 FR 64829; September 21, 2016). We have determined that 
the following physical or biological features are essential to the 
conservation of Sonoyta mud turtle:
    (1) Aquatic habitat, such as streams and natural or manmade ponds, 
with perennial or near-perennial sources of water, containing or 
including:
    (a) Surface water to 2 m (7 ft) deep, with a rocky, muddy, or sandy 
substrate, and emergent or submergent vegetation, or both;
    (b) Surface water free of nonnative predators and competitors, 
including crayfish, American bullfrogs, and large sunfish;
    (c) Shallow water areas with dense emergent vegetation (e.g., 
cattail, spikerush, and travelling spikerush);
    (d) Access to deeper open water in ponds, and submerged vegetation 
(e.g., holly-leaved water nymph, slender pondweed, ditch-grass, and 
horned pondweed); and
    (e) Areas with complex structure, including protective shelter 
sites such as root masses, rock features, and undercut banks.
    (2) Aquatic invertebrate prey base (e.g., Anisoptera, Trichoptera, 
Diptera, Coleoptera, aquatic snail species) and their corresponding 
habitat, including submergent or emergent vegetation and a variety of 
forage, and prey such as algae, diatoms, other microorganisms.
    (3) Terrestrial, riparian habitat, adjacent to suitable aquatic 
habitat, containing or including:
    (a) Accessible shoreline for Sonoyta mud turtles without 
insurmountable rock or artificial vertical barriers to allow movement 
between wetted sites, between aquatic habitat and terrestrial nest 
sites, and between aquatic habitat and estivation sites;
    (b) Riparian areas that maintain soil moisture to prevent 
desiccation of eggs and provide estivation sites, located along the 
banks of ponds and streams with riparian vegetation (e.g., cottonwood, 
willow, seepwillow, mesquite, greythorn, wolfberry, salt grass, 
arroweed); and
    (c) Estivation and nesting sites, including depressions under 
vegetation, soil, or organic matter; rock crevices; and soil burrows 
under overhanging banks of streams or ponds, that are available year-
round.

Special Management Considerations or Protection

    When designating critical habitat, we assess whether the specific 
areas within the geographical area occupied by the species at the time 
of listing contain features which are essential to the conservation of 
the species and which may require special management considerations or 
protection. The features essential to the conservation of the Sonoyta 
mud turtle may require special management considerations or protection 
to reduce the following threats: (1) Water loss; (2) loss of riparian 
habitat; (3) reduction of invertebrate prey; (4) presence of nonnative 
species; and (5) land management activities incompatible with 
maintaining needed habitat (such as dredging).
    Management activities that could ameliorate these threats and 
protect the quantity and quality of the aquatic and riparian habitat 
include, but are not limited to: (1) Maximizing surface water and 
aquatic habitat available through structure maintenance, such as berms, 
lining ponds and spring runs, and removing sediment; (2) decreasing 
groundwater pumping to maintain surface water that supports aquatic and 
riparian habitat, as well as the invertebrate prey base; (3) 
controlling and removing introduced nonnative plant species, such as 
American bulrush, to maintain aquatic habitat; and (4) controlling and 
removing introduced nonnative predators and competitors, such as 
crayfish, American bullfrogs, and large sunfish.

Criteria Used To Identify Critical Habitat

    As required by section 4(b)(2) of the Act, we use the best 
scientific data available to designate critical habitat. In accordance 
with the Act and our implementing regulations at 50 CFR 424.12(b), we 
review available information pertaining to the habitat requirements of 
the species and identify specific areas within the geographical area 
occupied by the species at the time of listing and any specific areas 
outside the geographical area occupied by the species that are 
essential for the species' conservation to be considered for 
designation as critical habitat. We are proposing to designate critical 
habitat in areas within the United States that are occupied by Sonoyta 
mud turtle at the time we published the final rule to list the 
subspecies as endangered (September 20, 2017). For purposes of this 
proposed rule, we define ``occupied habitat'' for Sonoyta mud turtle as 
areas with a positive survey records since 2000. This definition of 
occupied is based on the average life span of the subspecies (ranging 
from 12 to 17 years). Since Sonoyta mud turtles live approximately 12 
to 17 years, we used records from this time period and concluded that a 
portion of the turtles found during this time would still be alive, 
and, therefore, we consider the site occupied. We are not currently 
proposing to designate any areas outside the geographical area occupied 
by the subspecies because we did not find any such areas that were 
essential for the conservation of the subspecies, as we are not aware 
of any other areas within the historic range of the subspecies that 
maintain perennial or nearly perennial surface water.
    Sources of occupancy data on the Sonoyta mud turtle are monitoring 
data from Organ Pipe Cactus National Monument (NPS 2002-2016, p. 1). We 
obtained information on ecology and habitat requirements of the Sonoyta 
mud turtle from multiple sources, as identified in the SSA Report. For 
mapping of proposed critical habitat, we used Organ Pipe Cactus 
National Monument geo-referenced data of the water features used by 
Sonoyta mud turtles at Quitobaquito. In addition, we used satellite 
imagery available in ArcGIS to delineate riparian areas surrounding the 
surface water habitat.

Areas Occupied at the Time of Listing

    We are proposing for designation as critical habitat lands that we 
have determined are occupied at the time of listing (in this case, the 
date we published the final listing rule:

[[Page 62785]]

September 20, 2017) and contain one or more of the physical or 
biological features to support life-history processes essential to the 
conservation of the subspecies. The proposed critical habitat 
designation includes the only known extant population of Sonoyta mud 
turtles in the Unites States, within the Organ Pipe Cactus National 
Monument. This is also the only known population in the United States.
    We propose to designate one critical habitat unit based on one or 
more of the physical or biological features being present to support 
the life-history processes of the Sonoyta mud turtle.
    The proposed critical habitat designation is defined by the map or 
maps, as modified by any accompanying regulatory text, presented at the 
end of this document in the Proposed Regulation Promulgation section. 
We include more detailed information on the boundaries of the critical 
habitat designation in the Proposed Critical Habitat Designation 
section, below. We will make the coordinates or plot points or both on 
which the map is based available to the public on https://www.regulations.gov at Docket No. FWS-R2-ES-2017-0014, on our internet 
site at https://www.fws.gov/southwest/es/arizona, and at the field 
office responsible for the designation (see FOR FURTHER INFORMATION 
CONTACT, above).
    When determining proposed critical habitat boundaries, we made 
every effort to avoid including developed areas such as lands covered 
by buildings, pavement, and other structures because such lands lack 
physical or biological features necessary for the Sonoyta mud turtle. 
However, manmade water conveyance structures within the proposed 
designated critical habitat are part of the designation and are needed 
to manage the existing habitat. The current occupied unit includes a 
manmade spring enclosure and spring channel that convey water to a 
manmade pond surrounded by a manmade berm. The spring channel not only 
conveys water to the pond but also serves as habitat for the 
subspecies. Therefore, all of these manmade features are considered 
critical habitat. The scale of the map we prepared under the parameters 
for publication within the Code of Federal Regulations may not reflect 
the exclusion of developed lands otherwise excluded from critical 
habitat. Any such lands inadvertently left inside critical habitat 
boundaries shown on the map of this proposed rule have been excluded by 
text in the proposed rule and are not proposed for designation as 
critical habitat. Therefore, if the critical habitat is finalized as 
proposed, a Federal action involving these lands would not trigger 
section 7 consultation with respect to critical habitat and the 
requirement of no adverse modification unless the specific action would 
affect the physical or biological features in the adjacent critical 
habitat.

Proposed Critical Habitat Designation

    We are proposing to designate approximately 12.28 acres (ac) (4.97 
hectares (ha)) in one unit as critical habitat for the Sonoyta mud 
turtle. The critical habitat areas we describe below constitute our 
current best assessment of areas that meet the definition of critical 
habitat for Sonoyta mud turtle.

                              Table 1--Occupancy, Land Ownership, and Size of Sonoyta Mud Turtle Proposed Critical Habitat
                                        [Area estimates reflect all land within critical habitat unit boundaries]
--------------------------------------------------------------------------------------------------------------------------------------------------------
             Unit name               Occupied at time of listing?       Currently occupied?             Ownership          Size (ha)        Size (ac)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Quitobaquito......................  Yes..........................  Yes..........................  National Park                   4.97            12.28
                                                                                                   Service.
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Below, we present a brief description of the Quitobaquito Unit, and 
reasons why it meets the definition of critical habitat for the Sonoyta 
mud turtle.

Quitobaquito Unit

    This unit consists of 12.28 ac (4.97 ha) in the Rio Sonoyta 
watershed of Organ Pipe Cactus National Monument. This unit is within 
the geographic area occupied by the subspecies at the time of listing 
and contains at least one of the physical or biological features 
essential to the conservation of the Sonoyta mud turtle.
    Aquatic habitat within this unit consists of the two Quitobaquito 
springs, the piped water that connects the two springs, a manmade 
spring channel that connects the springs to Quitobaquito pond, and a 
manmade pond with a perennial source of water. The spring channel and 
pond both have shallow water habitat, an aquatic invertebrate prey 
base, and no nonnative predators. The pond includes surface water up to 
107 cm (42 in) deep with a muddy substrate; dense emergent and 
submergent vegetation; access to deeper open water in a pond for 
feeding along the substrate; and areas with complex structure and 
protective shelter sites, including root masses and undercut banks.
    Terrestrial habitat within this unit consists of adjacent, 
accessible shoreline along the stream channel and around Quitobaquito 
pond without insurmountable rock or artificial vertical barriers to 
movement of the Sonoyta mud turtle, as well as riparian areas, located 
along the banks of the pond, stream channel, and berm around the pond. 
These terrestrial habitat components maintain soil moisture to prevent 
desiccation of eggs and estivating turtles, and include estivation and 
nesting sites, including depressions under vegetation, soil, organic 
matter, and soil burrows under overhanging banks of the pond, that are 
available year-round.
    The physical or biological features in this unit may require 
special management considerations or protection to address threats from 
loss of surface water due to groundwater pumping, berm leaking, aquatic 
vegetation control, and sedimentation removal in the pond. This unit is 
entirely within the Organ Pipe Cactus National Monument, and the 
National Park Service (NPS) manages the habitat to support the Sonoyta 
mud turtle population. This unit is not being considered for exclusion 
or exemption.

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7(a)(2) of the Act requires Federal agencies, including the 
Service, to ensure that any action they fund, authorize, or carry out 
is not likely to jeopardize the continued existence of any endangered 
species or threatened species or result in the destruction or adverse 
modification of designated critical habitat of such species. In 
addition, section 7(a)(4) of the Act requires Federal agencies to 
confer with the Service on any agency action which is likely to 
jeopardize the continued existence of any species proposed to be listed 
under the Act or result in the destruction or adverse modification of 
proposed critical habitat.

[[Page 62786]]

    We published a final rule adopting a new definition of 
``destruction or adverse modification'' on February 11, 2016 (81 FR 
7214). Destruction or adverse modification means a direct or indirect 
alteration that appreciably diminishes the value of critical habitat 
for the conservation of a listed species. Such alterations may include, 
but are not limited to, those that alter the physical or biological 
features essential to the conservation of a species or that preclude or 
significantly delay development of such features.
    If a Federal action may affect a listed species or its critical 
habitat, the responsible Federal agency (action agency) must enter into 
consultation with us. Examples of actions that are subject to the 
section 7 consultation process are actions on State, tribal, local, or 
private lands that require a Federal permit (such as a permit from the 
U.S. Army Corps of Engineers under section 404 of the Clean Water Act 
(33 U.S.C. 1251 et seq.) or a permit from the Service under section 10 
of the Act) or that involve some other Federal action (such as funding 
from the Federal Highway Administration, Federal Aviation 
Administration, or the Federal Emergency Management Agency). Federal 
actions not affecting listed species or critical habitat, and actions 
on State, tribal, local, or private lands that are not federally funded 
or authorized, do not require section 7 consultation.
    As a result of section 7 consultation, we document compliance with 
the requirements of section 7(a)(2) through our issuance of:
    (1) A concurrence letter for Federal actions that may affect, but 
are not likely to adversely affect, listed species or critical habitat; 
or
    (2) A biological opinion for Federal actions that may affect, and 
are likely to adversely affect, listed species or critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to jeopardize the continued existence of a listed species and/or 
destroy or adversely modify critical habitat, we provide reasonable and 
prudent alternatives to the project, if any are identifiable, that 
would avoid the likelihood of jeopardy and/or destruction or adverse 
modification of critical habitat. We define ``reasonable and prudent 
alternatives'' (at 50 CFR 402.02) as alternative actions identified 
during consultation that:
    (1) Can be implemented in a manner consistent with the intended 
purpose of the action,
    (2) Can be implemented consistent with the scope of the Federal 
agency's legal authority and jurisdiction.
    (3) Are economically and technologically feasible, and
    (4) Would, in the Service 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 result in a direct or 
indirect alteration that appreciably diminishes the value of critical 
habitat for the conservation of the Sonoyta mud turtle. Such 
alterations may include, but are not limited to, those that alter the 
physical or biological features essential to the conservation of this 
subspecies or that preclude or significantly delay development of such 
features. As discussed above, the role of critical habitat is to 
support physical or biological features essential to the conservation 
of a listed species and provide for the conservation of the species.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe, in any proposed or final regulation that designates critical 
habitat, activities involving a Federal action that may destroy or 
adversely modify such habitat, or that may be affected by such 
designation.
    Activities that may affect critical habitat, when carried out, 
funded, or authorized by a Federal agency, should result in 
consultation for the Sonoyta mud turtle. These activities include, but 
are not limited to:
    (1) Actions that would decrease the amount of water available to to 
ponds and streams used by Sonoyta mud turtles. Such actions could 
include, but are not limited to, groundwater pumping. Groundwater 
pumping could decrease the amount of groundwater that infiltrates 
streamflow so that streams become smaller, intermittent, or dry, and 
thereby could reduce the amount of space, prey, nest sites, and cover 
available for Sonoyta mud turtles.
    (2) Actions that would maintain habitat for the Sonoyta mud 
turtles. Such actions could include the maintenance of springheads, 
stream or channel courses, and ponds. Maintaining springheads and 
manmade or natural spring channels will maximize the amount of surface 
water available to Sonoyta mud turtles. All ponds that support Sonoyta 
mud turtles are manmade and require constant management to remove 
sediment that builds up and to stop encroaching vegetation from 
completely filling in the ponds.

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 geographical areas owned or controlled by the 
Department of Defense, or designated for its use, that are subject to 
an integrated natural resources management plan [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 with a completed INRMP within the proposed 
critical habitat designation.

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.

[[Page 62787]]

The Secretary may exclude an area from critical habitat if he 
determines that the benefits of such exclusion outweigh the benefits of 
specifying such area as part of the critical habitat, unless he 
determines, based on the best scientific data available, that the 
failure to designate such area as critical habitat will result in the 
extinction of the species. In making that determination, the statute on 
its face, as well as the legislative history, are clear that the 
Secretary has broad discretion regarding which factor(s) to use and how 
much weight to give to any factor.
    We have not considered any areas for exclusion from critical 
habitat. However, the final decision on whether to exclude any areas 
will be based on the best scientific data available at the time of the 
final designation, including information obtained during the comment 
period and information about the economic impact of designation. 
Accordingly, we have prepared a draft economic analysis (DEA) 
concerning the proposed critical habitat designation, which is 
available for review and comment (see ADDRESSES, above).

Consideration of Economic Impacts

    Section 4(b)(2) of the Act and its implementing regulations require 
that we consider the economic impact that may result from a designation 
of critical habitat. To assess the probable economic impacts of a 
designation, we must first evaluate specific land uses or activities 
and projects that may occur in the area of the critical habitat. We 
then must evaluate the impacts that a specific critical habitat 
designation may have on restricting or modifying specific land uses or 
activities for the benefit of the species and its habitat within the 
areas proposed. We then identify which conservation efforts may be the 
result of the species being listed under the Act versus those 
attributed solely to the designation of critical habitat for this 
particular species. The probable economic impact of a proposed critical 
habitat designation is analyzed by comparing scenarios both ``with 
critical habitat'' and ``without critical habitat.'' The ``without 
critical habitat'' scenario represents the baseline for the analysis, 
which includes the existing regulatory and socio-economic burden 
imposed on landowners, managers, or other resource users potentially 
affected by the designation of critical habitat (e.g., under the 
Federal listing as well as other Federal, State, and local 
regulations). The baseline, therefore, represents the costs of all 
efforts attributable to the listing of the species under the Act (i.e., 
conservation of the species and its habitat incurred regardless of 
whether critical habitat is designated). The ``with critical habitat'' 
scenario describes the incremental impacts associated specifically with 
the designation of critical habitat for the species. The incremental 
conservation efforts and associated impacts would not be expected 
without the designation of critical habitat for the species. In other 
words, the incremental costs are those attributable solely to the 
designation of critical habitat, above and beyond the baseline costs. 
These are the costs we use when evaluating the benefits of inclusion 
and exclusion of particular areas from the final designation of 
critical habitat should we choose to conduct a discretionary section 
4(b)(2) exclusion analysis.
    For this particular designation, we developed an incremental 
effects memorandum (IEM) considering the probable incremental economic 
impacts that may result from this proposed designation of critical 
habitat. The information contained in our IEM was then used to develop 
a screening analysis of the probable effects of the designation of 
critical habitat for the Sonoyta mud turtle (IEc 2017, entire). We 
began by conducting a screening analysis of the proposed designation of 
critical habitat in order to focus our analysis on the key factors that 
are likely to result in incremental economic impacts. The purpose of 
the screening analysis is to filter out the geographic areas in which 
the critical habitat designation is unlikely to result in probable 
incremental economic impacts. In particular, the screening analysis 
considers baseline costs (i.e., absent critical habitat designation) 
and includes probable economic impacts where land and water use may be 
subject to conservation plans, land management plans, best management 
practices, or regulations that protect the habitat area as a result of 
the Federal listing status of the subspecies. The screening analysis 
filters out particular areas of critical habitat that are already 
subject to such protections and are, therefore, unlikely to incur 
incremental economic impacts. Ultimately, the screening analysis allows 
us to focus our analysis on evaluating the specific areas or sectors 
that may incur probable incremental economic impacts as a result of the 
designation. The screening analysis also assesses whether units are 
unoccupied by the subspecies and may require additional management or 
conservation efforts as a result of the critical habitat designation 
for the subspecies, which may incur incremental economic impacts. This 
screening analysis, combined with the information contained in our IEM, 
is what we consider our DEA of the proposed critical habitat 
designation for the Sonoyta mud turtle and is summarized in the 
narrative below.
    Executive Orders (E.O.s) 12866 and 13563 direct Federal agencies to 
assess the costs and benefits of available regulatory alternatives in 
quantitative (to the extent feasible) and qualitative terms. Consistent 
with the E.O. regulatory analysis requirements, our effects analysis 
under the Act may take into consideration impacts to both directly and 
indirectly affected entities, where practicable and reasonable. If 
sufficient data are available, we assess to the extent practicable the 
probable impacts to both directly and indirectly affected entities. As 
part of our screening analysis, we considered the types of economic 
activities that are likely to occur within the areas likely affected by 
the critical habitat designation. In our evaluation of the probable 
incremental economic impacts that may result from the proposed 
designation of critical habitat for the Sonoyta mud turtle, first we 
identified, in the IEM (Service 2017), probable incremental economic 
impacts associated with the following categories of activities: (1) 
Federal lands management (National Park Service, Organ Pipe Cactus 
National Monument); (2) groundwater pumping; and (3) Customs and Border 
Protection. We considered each industry or category individually. 
Additionally, we considered whether their activities have any Federal 
involvement. Critical habitat designation generally will not affect 
activities that do not have any Federal involvement; the Act's 
designation of critical habitat only affects activities conducted, 
funded, permitted, or authorized by Federal agencies. In areas where 
the Sonoyta mud turtle is present, Federal agencies already are 
required to consult with the Service under section 7 of the Act on 
activities they fund, permit, or implement that may affect the 
subspecies, because the subspecies is listed as an endangered species. 
If we finalize this proposed critical habitat designation, 
consultations to avoid the destruction or adverse modification of 
critical habitat would be incorporated into the existing consultation 
process.
    In our IEM, we attempted to clarify the distinction between the 
effects that result from the subspecies being listed and those that 
would be attributable to the critical habitat designation (i.e., 
difference between the jeopardy and adverse modification standards) for 
the Sonoyta mud turtle's critical habitat. Because the designation of 
critical

[[Page 62788]]

habitat for the Sonoyta mud turtle is being proposed soon after the 
listing, it has been our experience that it is more difficult to 
discern which conservation efforts are attributable to the subspecies 
being listed and those which would result solely from the designation 
of critical habitat. However, the following specific circumstances in 
this case help to inform our evaluation: (1) The essential physical or 
biological features identified for critical habitat are the same 
features essential for the life requisites of the subspecies; and (2) 
any actions that would result in sufficient harm or harassment to 
constitute jeopardy to the Sonoyta mud turtle would also likely 
adversely affect the essential physical or biological features of 
critical habitat. The IEM outlines our rationale concerning this 
limited distinction between baseline conservation efforts and 
incremental impacts of the designation of critical habitat for this 
subspecies. This evaluation of the incremental effects has been used as 
the basis to evaluate the probable incremental economic impacts of this 
proposed designation of critical habitat.
    The proposed critical habitat designation for the Sonoyta mud 
turtle consists of a single unit currently occupied by the subspecies. 
We are not proposing to designate any units of unoccupied habitat. The 
proposed Quitobaquito critical habitat unit totals 12.28 ac (4.97 ha) 
and is entirely contained within federally owned land at Organ Pipe 
Cactus National Monument. In this area, any actions that may affect the 
subspecies or its habitat would also affect designated critical 
habitat, and it is unlikely that any additional recommendations or 
project modifications to avoid adversely modifying critical habitat 
above those we would recommend for avoiding jeopardy. Therefore, only 
administrative costs of conducting any section 7 consultation are 
expected in all of the proposed critical habitat designation. While 
this additional analysis will require time and resources by both the 
Federal action agency and the Service, it is believed that, in most 
circumstances, these costs would predominantly be administrative in 
nature and would not be significant.
    We anticipate minimal change in behavior at Organ Pipe Cactus 
National Monument if we designate critical habitat for the Sonoyta mud 
turtle. Based on Organ Pipe Cactus National Monument's history of 
consultation under section 7 of the Act and on the consultation history 
of the most comparable species, desert pupfish (Cyprinodon macularius), 
we anticipate that this critical habitat designation may result in a 
maximum of two additional consultations per decade.
    As we stated earlier, we are soliciting data and comments from the 
public on the draft economic analysis, as well as all aspects of the 
proposed rule and our amended required determinations. We may revise 
the proposed rule or supporting documents to incorporate or address 
information we receive during the public comment period. In particular, 
we may exclude an area from critical habitat if we determine that the 
benefits of excluding the area outweigh the benefits of including the 
area, provided the exclusion will not result in the extinction of this 
subspecies.

Exclusion

Exclusions Based on Economic Impacts

    Under section 4(b)(2) of the Act, we consider the economic impacts 
of specifying any particular area as critical habitat. In order to 
consider economic impacts, we prepared an analysis of the probable 
economic impacts of the proposed critical habitat designation and 
related factors. In our DEA, we did not identify any ongoing or future 
actions that would warrant additional recommendations or project 
modifications to avoid adversely modifying critical habitat above those 
we would recommend for avoiding jeopardy to the subspecies, and we 
anticipate minimal change in behavior at Organ Pipe Cactus National 
Monument due to the designation of critical habitat for Sonoyta mud 
turtle (IEc 2017).
    At this time, we are not considering any exclusion based on 
economic impacts from the proposed designation of critical habitat for 
Sonoyta mud turtle. During the development of a final designation, we 
will consider any additional economic impact information we receive 
during the public comment period; as such, areas may be excluded from 
the final critical habitat designation under section 4(b)(2) of the Act 
and our implementing regulations at 50 CFR 424.19.

Exclusions Based on National Security Impacts or Homeland Security 
Impacts

    Under section 4(b)(2) of the Act, we consider whether there are 
lands owned or managed by the Department of Defense where a national 
security impact might exist. In preparing this proposal, we have 
determined that the lands within the proposed designation of critical 
habitat for the Sonoyta mud turtle are not owned or managed by the 
Department of Defense or Department of Homeland Security, and, 
therefore, we anticipate no impact on national security. Consequently, 
the Secretary does not intend to exercise his discretion to exclude any 
areas from the final designation based on impacts on national security.

Exclusions Based on Other Relevant Impacts

    Under section 4(b)(2) of the Act, we consider any other relevant 
impacts, in addition to economic impacts and impacts on national 
security. We consider a number of factors including whether there are 
permitted conservation plans covering the subspecies in the area such 
as HCPs, safe harbor agreements, or candidate conservation agreements 
with assurances, or whether there are non-permitted conservation 
agreements and partnerships that would be encouraged by designation of, 
or exclusion from, critical habitat. In addition, we look at the 
existence of tribal conservation plans and partnerships and consider 
the government-to-government relationship of the United States with 
tribal entities. We also consider any social impacts that might occur 
because of the designation.
    In preparing this proposal, we have determined that there are 
currently no HCPs or other management plans on non-federal lands for 
the Sonoyta mud turtle, and the proposed designation does not include 
any tribal lands or trust resources. We anticipate no impact on tribal 
lands, partnerships, or HCPs from this proposed critical habitat 
designation. Accordingly, the Secretary does not intend to exercise his 
discretion to exclude any areas from the final designation based on 
other relevant impacts.

Peer Review

    In accordance with our joint policy on peer review published in the 
Federal Register on July 1, 1994 (59 FR 34270) and our August 22, 2016, 
memorandum updating and clarifying the role of peer review of listing 
actions under the Act, we sought the expert opinions of at least three 
appropriate and independent specialists regarding the SSA Report, which 
informed this proposed rule. The purpose of peer review is to ensure 
that our critical habitat designation is based on scientifically sound 
data, assumptions, and analyses. The peer reviewers have expertise in 
Sonoyta or Sonora mud turtle life history, needs, habitat, and 
stressors (factors negatively affecting the species). We will consider 
all comments and information we receive during the comment period on 
this proposed rule during our preparation of a final designation.

[[Page 62789]]

Accordingly, the final decision may differ from this proposal.

Public Hearings

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

Required Determinations

Regulatory Planning and Review (Executive Orders 12866 and 13563)

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

Executive Order 13771--Reducing Regulation and Controlling Regulatory 
Costs

    This proposed rule is not an Executive Order (E.O.) 13771 (82 FR 
9339, February 3, 2017) regulatory action because this proposed rule is 
not significant under E.O. 12866.

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 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 out by the agency is not likely to destroy or adversely modify 
critical habitat. Therefore, under section 7, only Federal action 
agencies are directly subject to the specific regulatory requirement 
(avoiding destruction and adverse modification) imposed by critical 
habitat designation. Consequently, it is our position that only Federal 
action agencies would be directly regulated by this designation. There 
is no requirement under RFA to evaluate the potential impacts to 
entities not directly regulated. Moreover, Federal agencies are not 
small entities. Therefore, because no small entities would be directly 
regulated by this rulemaking, the Service certifies that, if adopted, 
this proposed critical habitat designation will not have a significant 
economic impact on a substantial number of small entities.
    In summary, we have considered whether the proposed designation 
would result in a significant economic impact on a substantial number 
of small entities. For the above reasons and based on currently 
available information, we certify that, if adopted, the proposed 
critical habitat designation would not have a significant economic 
impact on a substantial number of small business entities. Therefore, 
an initial regulatory flexibility analysis is not required.

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. In our economic analysis, we did not find that the 
designation of this proposed critical habitat would significantly 
affect energy supplies, distribution, or use because the proposed 
critical habitat unit is entirely contained within Organ Pipe Cactus 
National Monument. Therefore, this action is not a significant energy 
action, and no Statement of Energy Effects is required. However, we 
will further evaluate this issue as we conduct our economic analysis, 
and review and revise this assessment as warranted.

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

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we make the following findings:
    (1) This rule would 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.

[[Page 62790]]

658(5)-(7). ``Federal intergovernmental mandate'' includes a regulation 
that ``would impose an enforceable duty upon State, local, or tribal 
governments'' with two exceptions. It excludes ``a condition of Federal 
assistance.'' It also excludes ``a duty arising from participation in a 
voluntary Federal program,'' unless the regulation ``relates to a then-
existing Federal program under which $500,000,000 or more is provided 
annually to State, local, and tribal governments under entitlement 
authority,'' if the provision would ``increase the stringency of 
conditions of assistance'' or ``place caps upon, or otherwise decrease, 
the Federal Government's responsibility to provide funding,'' and the 
State, local, or tribal governments ``lack authority'' to adjust 
accordingly. At the time of enactment, these entitlement programs were: 
Medicaid; Aid to Families with Dependent Children work programs; Child 
Nutrition; Food Stamps; Social Services Block Grants; Vocational 
Rehabilitation State Grants; Foster Care, Adoption Assistance, and 
Independent Living; Family Support Welfare Services; and Child Support 
Enforcement. ``Federal private sector mandate'' includes a regulation 
that ``would impose an enforceable duty upon the private sector, except 
(i) a condition of Federal assistance or (ii) a duty arising from 
participation in a voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal Government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. While non-Federal entities that receive 
Federal funding, assistance, or permits, or that otherwise require 
approval or authorization from a Federal agency for an action, may be 
indirectly impacted by the designation of critical habitat, the legally 
binding duty to avoid destruction or adverse modification of critical 
habitat rests squarely on the Federal agency. Furthermore, to the 
extent that non-Federal entities are indirectly impacted because they 
receive Federal assistance or participate in a voluntary Federal aid 
program, the Unfunded Mandates Reform Act would not apply, nor would 
critical habitat shift the costs of the large entitlement programs 
listed above onto State governments.
    (2) We do not believe that this rule would significantly or 
uniquely affect small governments because we are proposing to designate 
only a single critical habitat unit that is entirely owned by the 
National Park Service. Therefore, 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 Sonoyta mud turtle in a takings implications 
assessment. The Act does not authorize the Service to regulate private 
actions on private lands or confiscate private property as a result of 
critical habitat designation. Designation of critical habitat does not 
affect land ownership, or establish any closures, or restrictions on 
use of or access to the designated areas. Furthermore, the designation 
of critical habitat does not affect landowner actions that do not 
require Federal funding or permits, nor does it preclude development of 
habitat conservation programs or issuance of incidental take permits to 
permit actions that do require Federal funding or permits to go 
forward. However, Federal agencies are prohibited from carrying out, 
funding, or authorizing actions that would destroy or adversely modify 
critical habitat. A takings implications assessment has been completed 
and concludes that this proposed designation of critical habitat for 
Sonoyta mud turtle does not pose significant takings implications for 
lands within or affected by the designation.

Federalism--Executive Order 13132

    In accordance with E.O. 13132 (Federalism), this proposed rule does 
not have significant Federalism effects. A federalism summary impact 
statement is not required. In keeping with Department of the Interior 
and Department of Commerce policy, we requested information from, and 
coordinated development of this proposed critical habitat designation 
with, appropriate State resource agencies in Arizona. 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, this proposed rule would 
not have substantial direct effects either on the States, or on the 
relationship between the national government and the States, or on the 
distribution of powers and responsibilities among the various levels of 
government. The designation may have some benefit to these governments 
because the areas that contain the features essential to the 
conservation of the subspecies are more clearly defined, and the 
physical or biological features of the habitat necessary to the 
conservation of the subspecies are specifically identified. This 
information does not alter where and what federally sponsored 
activities may occur. However, it may assist these local governments in 
long-range planning (because these local governments no longer have to 
wait for case-by-case section 7 consultations to occur).
    Where State and local governments require approval or authorization 
from a Federal agency for actions that may affect critical habitat, 
consultation under section 7(a)(2) would be required. While non-Federal 
entities that receive Federal funding, assistance, or permits, or that 
otherwise require approval or authorization from a Federal agency for 
an action, may be indirectly impacted by the designation of critical 
habitat, the legally binding duty to avoid destruction or adverse 
modification of critical habitat rests squarely on the Federal agency.

Civil Justice Reform--Executive Order 12988

    In accordance with Executive Order 12988 (Civil Justice Reform), 
the Office of the Solicitor has determined that the rule does not 
unduly burden the judicial system and that it meets the requirements of 
sections 3(a) and 3(b)(2) of the E.O. We have proposed designating 
critical habitat in accordance with the provisions of the Act. To 
assist the public in understanding the habitat needs of the subspecies, 
the proposed rule identifies the elements of physical or biological 
features essential to the conservation of the subspecies. The proposed 
areas of critical habitat are presented on a map, and the proposed 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 Office of Management and Budget (OMB) under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). This rule 
will not impose recordkeeping or reporting requirements on State or 
local governments, individuals, businesses, or organizations. An agency 
may not conduct or sponsor, and a person is not required to respond to, 
a collection of

[[Page 62791]]

information unless it displays a currently valid OMB control number.

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

    It is our position that, outside the jurisdiction of the U.S. Court 
of Appeals for the Tenth Circuit, we do not need to prepare 
environmental analyses pursuant to the National Environmental Policy 
Act (NEPA; 42 U.S.C. 4321 et seq.) in connection with designating 
critical habitat under the Act. We published a notice outlining our 
reasons for this determination in the Federal Register on October 25, 
1983 (48 FR 49244). This position was upheld by the U.S. Court of 
Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495 
(9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)). Because this 
proposed critical habitat does not occur on lands within the U.S. Court 
of Appeals for the Tenth Circuit, we are not conducting an 
environmental analysis.

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. The Quitobaquito Pond is a culturally 
significant site for the Tohono O'odham. We will request a meeting with 
the Tohono O'odham Nation to inform them of this proposed rule to 
designate critical habitat.
    We determined that there are no tribal lands that were occupied by 
the Sonoyta mud turtle at the time of listing that contain the features 
essential for conservation of the subspecies, and no tribal lands 
unoccupied by the Sonoyta mud turtle that are essential for the 
conservation of the subspecies. Therefore, we are not proposing to 
designate critical habitat for the Sonoyta mud turtle on tribal lands.

Clarity of the Rule

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

References Cited

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

Authors

    The primary authors of this proposed rule are the staff members of 
the Arizona Ecological Services Field Office.

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

    Accordingly, we propose to 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; and 4201-4245, 
unless otherwise noted.

0
2. Amend Sec.  17.11(h) by revising the entry for ``Turtle, Sonoyta 
mud'' under ``REPTILES'' in the List of Endangered and Threatened 
Wildlife to read as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

----------------------------------------------------------------------------------------------------------------
                                                                                           Listing citations and
          Common name              Scientific name      Where listed          Status         applicable rules
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
            Reptiles
 
                                                  * * * * * * *
Turtle, Sonoyta mud............  Kinosternon         Wherever found....               E   82 FR 43897, 9/20/
                                  sonoriense                                               2017;
                                  longifemorale.                                          50 CFR 17.95(c).\CH\
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

0
3. Amend Sec.  17.95(c) by adding an entry for ``Sonoyta Mud Turtle 
(Kinosternon sonoriense longifemorale),'' immediately following the 
entry for ``Plymouth Red-bellied Turtle (Chrysemys rubriventris 
bangsi)'', to read as follows:


Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *
    (c) Reptiles.
* * * * *
Sonoyta Mud Turtle (Kinosternon sonoriense longifemorale)

    (1) Critical habitat unit is depicted for Pima County, Arizona, on 
the map below.
    (2) Within this area, the physical or biological features essential 
to the conservation of the Sonoyta mud turtle consist of the following 
components:

[[Page 62792]]

    (i) Aquatic habitat, such as streams and natural or manmade ponds, 
with perennial or near-perennial sources of water, containing or 
including:
    (A) Surface water to 2 meters (7 feet) deep, with a rocky, muddy, 
or sandy substrate, and emergent or submergent vegetation, or both;
    (B) Surface water free of nonnative predators and competitors, 
including crayfish, American bullfrogs, and large sunfish;
    (C) Shallow water areas with dense emergent vegetation (e.g., 
cattail, spikerush, and travelling spikerush);
    (D) Access to deeper open water in ponds, and submerged vegetation 
(e.g., holly-leaved water nymph, slender pondweed, ditch-grass, and 
horned pondweed); and
    (E) Areas with complex structure, including protective shelter 
sites such as root masses, rock features, and undercut banks.
    (ii) Aquatic invertebrate prey base (e.g., Anisoptera, Trichoptera, 
Diptera, Coleoptera, aquatic snail species) and their corresponding 
habitat, including submergent or emergent vegetation and a variety of 
forage, and prey such as algae, diatoms, other microorganisms.
    (iii) Terrestrial, riparian habitat, adjacent to suitable aquatic 
habitat, containing or including:
    (A) Accessible shoreline for Sonoyta mud turtles without 
insurmountable rock or artificial vertical barriers to allow movement 
between wetted sites, between aquatic habitat and terrestrial nest 
sites, and between aquatic habitat and estivation sites;
    (B) Riparian areas that maintain soil moisture to prevent 
desiccation of eggs and provide estivation sites, located along the 
banks of ponds and streams with riparian vegetation (e.g., cottonwood, 
willow, seepwillow, mesquite, greythorn, wolfberry, salt grass, 
arroweed); and
    (C) Estivation and nesting sites, including depressions under 
vegetation, soil, or organic matter; rock crevices; and soil burrows 
under overhanging banks of streams or ponds, that are available year-
round.
    (3) Critical habitat does not include manmade structures (such as 
buildings, aqueducts, runways, roads, and other paved areas) and the 
land on which they are located existing within the legal boundaries on 
[Insert effective date of final rule]. However, the spring enclosure, 
the manmade pond, the manmade channel that connects the springs to the 
pond, and the piped water that connects the two springs within the 
designated critical habitat are part of the designation.
    (4) Critical habitat map units. Data layers defining map unit were 
developed using ESRI ArcGIS mapping software along with various spatial 
layers. We used ground-truthed data provided by Organ Pipe Cactus 
National Monument staff that depicts all aquatic habitat used by the 
Sonoyta mud turtle, including Quitobaquito Pond and moat, the two 
Quitobaquito springs, the manmade channel that connects the springs to 
the pond, and the piped water that connects the two springs. For 
terrestrial, we used satellite imagery available in ArcGIS to delineate 
the riparian areas surrounding the surface water habitat. World Imagery 
used from ArcGIS provides 1 meter or better satellite and aerial 
imagery in many parts of the world and lower resolution satellite 
imagery worldwide. The map includes 15m TerraColor 0.3m resolution 
imagery at this map scale of 1:6,000. Additionally, imagery at 
different resolutions has been contributed by the GIS User Community. 
ArcGIS was also used to calculate area hectares and acres, and was used 
to determine longitude and latitude coordinates in decimal degrees. The 
coordinate system used in mapping and calculating area and locations 
within the unit was Universal Transverse Mercator (UTM) conformal 
projection with 1983 North American Datum in Zone 12. The map in this 
entry, as modified by any accompanying regulatory text, establishes the 
boundaries of the critical habitat designation. The coordinates or plot 
points or both on which the map is based are available to the public at 
https://www.fws.gov/southwest/es/arizona/, at https://www.regulations.gov 
at Docket No. FWS-R2-ES-2017-0014, and at the field office responsible 
for this designation. You may obtain field office location information 
by contacting one of the Service regional offices, the addresses of 
which are listed at 50 CFR 2.2.
    (5) Quitobaquito Unit, Pima County, Arizona.
    (i) General description: This unit consists of approximately 12.28 
acres (4.97 hectares) in the Rio Sonoyta watershed in Pima County, and 
is composed entirely of Federal land owned by the National Park Service 
on Organ Pipe Cactus National Monument. The unit includes Quitobaquito 
Pond, the two Quitobaquito springs, the manmade channel that connects 
the springs to the pond, and the piped water that connects the two 
springs and surrounding riparian habitat.
    (ii) Unit map follows:
BILLING CODE 4333-15-P

[[Page 62793]]

[GRAPHIC] [TIFF OMITTED] TP06DE18.002


[[Page 62794]]


* * * * *

    Dated: October 11, 2018.
James W. Kurth,
Deputy Director, Exercising the Authority of the Director, U.S. Fish 
and Wildlife Service.
[FR Doc. 2018-26388 Filed 12-4-18; 8:45 am]
 BILLING CODE 4333-15-C