Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Northern Mexican Gartersnake and Narrow-Headed Gartersnake, 23608-23668 [2020-08069]

Download as PDF 23608 Federal Register / Vol. 85, No. 82 / Tuesday, April 28, 2020 / Proposed Rules DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [Docket No. FWS–R2–ES–2020–0011; FF09E21000 FXES11110900000 201] RIN 1018–BD96 Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Northern Mexican Gartersnake and Narrow-Headed Gartersnake Fish and Wildlife Service, Interior. ACTION: Revised proposed rule; request for public comments. AGENCY: We, the U.S. Fish and Wildlife Service (Service), are revising our proposed designation of critical habitat for the northern Mexican gartersnake (Thamnophis eques megalops) and narrow-headed gartersnake (Thamnophis rufipunctatus) under the Endangered Species Act, as amended (Act). In total, approximately 27,784 acres (11,244 hectares) in La Paz, Mohave, Yavapai, Gila, Cochise, Santa Cruz, and Pima Counties in Arizona, and in Grant County in New Mexico, fall within the boundaries of the revised proposed critical habitat designation for the northern Mexican gartersnake; and 18,701 acres (7,568 hectares) in Greenlee, Graham, Apache, Yavapai, Gila, and Coconino Counties in Arizona, as well as in Grant, Hidalgo, and Catron Counties in New Mexico, fall within the boundaries of the revised proposed critical habitat designation for the narrow-headed gartersnake. We also announce the availability of a draft economic analysis of the revised proposed designation of critical habitat for northern Mexican and narrowheaded gartersnakes. We request comments from all interested parties on this revised proposed rule and the associated draft economic analysis. Comments submitted on our July 10, 2013, proposed rule need not be resubmitted as they will be fully considered in the preparation of the final rule. If we finalize this rule as proposed, it would extend the Act’s protections to these species’ critical habitat. jbell on DSKJLSW7X2PROD with PROPOSALS2 SUMMARY: We will accept comments on this revised proposed rule or the draft economic analysis that are received or postmarked on or before June 29, 2020. Comments submitted electronically using the Federal eRulemaking Portal (see ADDRESSES, below) must be received by 11:59 p.m. Eastern Time on DATES: VerDate Sep<11>2014 19:35 Apr 27, 2020 Jkt 250001 the closing date. We must receive requests for public hearings, in writing, at the address shown in FOR FURTHER INFORMATION CONTACT by June 12, 2020. ADDRESSES: You may submit comments by one of the following methods: (1) Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov. In the Search box, enter FWS–R2–ES–2020– 0011, which is the docket number for this rulemaking. Then, click on the Search button. On the resulting page, in the Search panel on the left side of the screen, under the Document Type heading, check the Proposed Rule box to locate this document. You may submit a comment by clicking on ‘‘Comment Now!’’ (2) By hard copy: Submit by U.S. mail to: Public Comments Processing, Attn: FWS–R2–ES–2020–0011, U.S. Fish and Wildlife Service, MS: JAO/1N, 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 the Information Requested, below, for more information). Availability of supporting materials: The draft economic analysis is available at https://www.fws.gov/southwest/es/ arizona/, at https://www.regulations.gov at Docket No. FWS–R2–ES–2020–0011, and at the Arizona Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT). For the critical habitat designation, the coordinates or plot points or both from which the maps are generated are included in the administrative record and are available at https://www.fws.gov/ southwest/es/arizona, at https:// www.regulations.gov under Docket No. FWS–R2–ES–2020–0011 and 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 included in the preamble and/or at https:// www.regulations.gov. Jeff Humphry, 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. Persons who use a telecommunications device for the deaf FOR FURTHER INFORMATION CONTACT: PO 00000 Frm 00002 Fmt 4701 Sfmt 4702 (TDD), may call the Federal Relay Service at 800–877–8339. SUPPLEMENTARY INFORMATION: Executive Summary Why we need to publish a rule. Critical habitat shall be designated, to the maximum extent prudent and determinable, for any species determined to be an endangered or threatened species under the Act. Both gartersnakes are listed as threatened under the Act (79 FR 38678; July 8, 2014). Designations and revisions of critical habitat can only be completed by issuing a rule. What this document does. This is a revised proposed rule to designate critical habitat for northern Mexican gartersnake and narrow-headed gartersnake under the Act. For reasons described later in this document, this revised proposed rule reduces the proposed critical habitat designation from what we proposed on July 10, 2013, as follows: • For the northern Mexican gartersnake, the proposed designation is reduced from approximately 421,423 acres (170,544 hectares) to approximately 27,784 acres (11,244 hectares); and • For the narrow-headed gartersnake, the proposed designation is reduced from approximately 210,189 acres (85,060 hectares) to approximately 18,701 acres (7,568 hectares). The basis for our action. Section 4(a)(3) of the Act requires the Secretary of the Interior (Secretary) to designate critical habitat concurrent with listing to the maximum extent prudent and determinable. Section 4(b)(2) of the Act states that the Secretary must make the designation on the basis of the best scientific data available and after taking into consideration the economic impact, the impact on national security, and any other relevant impacts of specifying any particular area as critical habitat. Section 3(5)(A) of the Act defines critical habitat as (i) the specific areas within the geographical area occupied by the species, at the time it is listed, on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protections; and (ii) specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination by the Secretary that such areas are essential for the conservation of the species. 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 E:\FR\FM\28APP2.SGM 28APP2 Federal Register / Vol. 85, No. 82 / Tuesday, April 28, 2020 / Proposed Rules the role of peer review of listing actions under the Act, we sought the expert opinions of eight independent specialists on the July 10, 2013, proposed rule to ensure that our critical habitat proposal was based on scientifically sound data, assumptions, and analyses. We received responses from three of the peer reviewers. We reviewed all comments we received from the peer reviewers for substantive issues and new information regarding critical habitat for the two gartersnakes. Peer reviewers substantive comments have been addressed or incorporated into this revised proposed rule. Because we will consider all comments and information we receive during the comment period, our final determinations may differ from this proposal. Such final decisions would be a logical outgrowth of this proposal, as long as we: (1) Base the decisions on the best scientific and commercial data available after considering all of the relevant factors; (2) do not rely on factors Congress has not intended us to consider; and (3) articulate a rational connection between the facts found and the conclusions made, including why we changed our conclusion. jbell on DSKJLSW7X2PROD with PROPOSALS2 Information Requested We intend that any final action resulting from this revised proposed rule will be based on the best scientific and commercial data available and be as accurate and as effective as possible. Therefore, we request comments or information from other concerned government agencies, Native American tribes, the scientific community, industry, or any other interested party concerning this revised 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 information to inform the following factors that the regulations identify as reasons why designation of critical habitat may be not prudent: (a) The species is threatened by taking, collecting, or other human activity and identification of critical habitat can be expected to increase the degree of such threat to the species; (b) The present or threatened destruction, modification, or curtailment of a species’ habitat or range is not a threat to the species, or threats to the species’ habitat stem solely from causes that cannot be addressed through management actions resulting from consultations under section 7(a)(2) of the Act; VerDate Sep<11>2014 19:35 Apr 27, 2020 Jkt 250001 (c) Areas within the jurisdiction of the United States provide no more than negligible conservation value, if any, for a species occurring primarily outside the jurisdiction of the United States; or (d) No areas meet the definition of critical habitat. (2) Specific information on: (a) The amount and distribution of northern Mexican or narrow-headed gartersnake habitat; (b) Which areas, that were occupied at the time of listing (2013) and that contain the physical or biological features essential to the conservation of these species, should be included in the designation and why; (c) What period of time should be used to ascertain occupancy at time of listing (2013) and why, and whether or not data from 1998 to the present should be used in this determination; (d) Whether it is appropriate to use information from a long-term dispersal study on neonate, juvenile, and adult age classes of the Oregon gartersnake (Thamnophis atratus hydrophilus) in a free-flowing stream environment in northern California (Welsh et al. 2010, entire) as a surrogate for juvenile northern Mexican gartersnake and narrow-headed gartersnake dispersal; (e) Special management considerations or protection that may be needed in critical habitat areas we are proposing, including managing for the potential effects of climate change; and (f) What areas not occupied at the time of listing are essential for the conservation of these species and why. We particularly seek comments regarding: (i) Whether occupied areas are inadequate for the conservation of the species; and (ii) Specific information that informs the determination of whether unoccupied areas will, with reasonable certainty, contribute to the conservation of the species and contain at least one physical or biological feature essential to the conservation of the species. (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 northern Mexican or narrow-headed gartersnake 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 PO 00000 Frm 00003 Fmt 4701 Sfmt 4702 23609 impacts in the draft economic analysis is a reasonable estimate of the likely economic impacts. (7) Whether any specific areas we are proposing for critical habitat designation should be considered for exclusion under section 4(b)(2) of the Act, and whether the benefits of potentially excluding any specific area outweigh the benefits of including that area under section 4(b)(2) of the Act, in particular for those lands discussed in each critical habitat unit and in tables 3a and 3b, below. (8) Whether we could improve or modify our approach to designating critical habitat in any way to provide for greater public participation and understanding, or to better accommodate public concerns and comments. Please include sufficient information with your submission (such as scientific journal articles or other publications) to allow us to verify any scientific or commercial information you include. Please note that submissions merely stating support for, or opposition to, the action under consideration without providing supporting information, although noted, will not be considered in making a determination, as section 4(b)(1)(A) of the Act directs that determinations as to whether any species is an endangered or a threatened species must be made ‘‘solely on the basis of the best scientific and commercial data available.’’ 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. If you submit information via https:// www.regulations.gov, your entire submission—including any personal identifying information—will be posted on the website. If your submission is made via a hardcopy that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. We will post all hardcopy submissions on https://www.regulations.gov. 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). E:\FR\FM\28APP2.SGM 28APP2 23610 Federal Register / Vol. 85, No. 82 / Tuesday, April 28, 2020 / Proposed Rules Public Hearing Section 4(b)(5) of the Act provides for a public hearing on this proposal, if requested. Requests must be received within 45 days after the date of publication of this proposed rule in the Federal Register (see DATES, above). Such requests must be sent to the address shown in FOR FURTHER INFORMATION CONTACT. We will schedule a public hearing on this proposal, if requested, and announce the date, time, and place of the hearing, as well as how to obtain reasonable accommodations, in the Federal Register and local newspapers at least 15 days before the hearing. For the immediate future, we will provide these public hearings using webinars that will be announced on the Service’s website, in addition to the Federal Register. The use of these virtual public hearings is consistent with our regulation at 50 CFR 424.16(c)(3). Previous Federal Actions On July 10, 2013, we published in the Federal Register (78 FR 41550) a proposed rule to designate critical habitat for northern Mexican gartersnake and narrow-headed gartersnake. In that proposed rule, we proposed to designate approximately 421,423 acres (ac) (170,544 hectares (ha)) as critical habitat in 14 units for the northern Mexican gartersnake and 210,189 ac (85,060 ha) as critical habitat in 6 units for the narrow-headed gartersnake. That proposal had a 60-day comment period, ending September 9, 2013. We received substantive comments during the comment period that have contributed to the current revised proposed rule. jbell on DSKJLSW7X2PROD with PROPOSALS2 Background It is our intent to discuss in this document only those topics directly relevant to the designation of critical habitat for northern Mexican gartersnake and narrow-headed gartersnake. For more information on the two species, their corresponding habitats, and previous Federal actions concerning the two species, refer to the proposed designation of critical habitat published in the Federal Register on July 10, 2013 (78 FR 41550). The proposed rule is available online at https://www.regulations.gov (at Docket No. FWS–R2–ES–2020–0011) or from the Arizona Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT). Critical habitat is defined in section 3 of the Act as: (1) The specific areas within the geographical area occupied by the VerDate Sep<11>2014 19:35 Apr 27, 2020 Jkt 250001 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. Designation also does not allow the government or public to access private lands, nor does designation 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 Federal agency would be required to consult with the PO 00000 Frm 00004 Fmt 4701 Sfmt 4702 Service under section 7(a)(2) of the Act. However, even if the Service were to conclude that the proposed activity would result in destruction or adverse modification of the critical habitat, the Federal action agency and the landowner are not required to abandon the proposed activity, or to restore or recover the species; instead, they must 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 that occur in specific occupied areas, we focus on the specific features that are essential to 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. When designating critical habitat, the Secretary will first evaluate areas occupied by the species. The Secretary will only consider unoccupied areas to be essential where a critical habitat designation limited to geographical areas occupied by the species would be inadequate to ensure the conservation of the species. In addition, for an unoccupied area to be considered essential, the Secretary must determine that there is a reasonable certainty both that the area will contribute to the conservation of the E:\FR\FM\28APP2.SGM 28APP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 Federal Register / Vol. 85, No. 82 / Tuesday, April 28, 2020 / Proposed Rules species and that the area contains one or more of those physical or biological features essential to the conservation of the species. Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific data available. Further, our Policy on Information Standards Under the Endangered Species Act (published in the Federal Register on July 1, 1994 (59 FR 34271)), the Information Quality Act (section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106–554; H.R. 5658)), and our associated Information Quality Guidelines, provide criteria, establish procedures, and provide guidance to ensure that our decisions are based on the best scientific data available. They require our biologists, to the extent consistent with the Act and with the use of the best scientific data available, to use primary and original sources of information as the basis for recommendations to designate critical habitat. When we are determining which areas should be designated as critical habitat, our primary source of information is generally the information developed during the listing process for the species. Additional information sources may include any generalized conservation strategy, criteria, or outline that may have been developed for the species; the recovery plan for the species; articles in peer-reviewed journals; conservation plans developed by States and counties; scientific status surveys and studies; biological assessments; other unpublished materials; or experts’ opinions or personal knowledge. Habitat is dynamic, and species may move from one area to another over time. We recognize that critical habitat designated at a particular point in time may not include all of the habitat areas that we may later determine are necessary for the recovery of the species. For these reasons, a critical habitat designation does not signal that habitat outside the designated area is unimportant or may not be needed for recovery of the species. Areas that are important to the conservation of the species, both inside and outside the critical habitat designation, will continue to be subject to: (1) Conservation actions implemented under section 7(a)(1) of the Act; (2) regulatory protections afforded by the requirement in section 7(a)(2) of the Act for Federal agencies to ensure their actions are not likely to jeopardize the continued existence of any endangered or threatened species; and (3) the Act’s prohibitions on taking any individual of VerDate Sep<11>2014 19:35 Apr 27, 2020 Jkt 250001 the species, including taking caused by actions that affect habitat. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. These protections and conservation tools will continue to contribute to recovery of this species. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans (HCPs), or other species conservation planning efforts, if new information available at the time of these planning efforts calls for a different outcome. 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 Secretary may, but is not required to, determine that a designation would not be prudent in the following circumstances: (i) The species is threatened by taking or other human activity and identification of critical habitat can be expected to increase the degree of such threat to the species; (ii) The present or threatened destruction, modification, or curtailment of a species’ habitat or range is not a threat to the species, or threats to the species’ habitat stem solely from causes that cannot be addressed through management actions resulting from consultations under section 7(a)(2) of the Act; (iii) Areas within the jurisdiction of the United States provide no more than negligible conservation value, if any, for a species occurring primarily outside the jurisdiction of the United States; (iv) No areas meet the definition of critical habitat; or (v) The Secretary otherwise determines that designation of critical habitat would not be prudent based on the best scientific data available. As discussed in the final listing rule published on July 8, 2014 (79 FR 38678), there is currently no imminent threat of take attributed to collection or vandalism identified under Factor B for these species, and identification and mapping of critical habitat is not expected to initiate any such threat. In our proposed listing rule for the northern Mexican gartersnake and PO 00000 Frm 00005 Fmt 4701 Sfmt 4702 23611 narrow-headed gartersnake (78 FR 41500; July 10, 2013), we determined that the present or threatened destruction, modification, or curtailment of habitat or range is a threat to these species and that those threats in some way can be addressed by section 7(a)(2) consultation measures. The species occurs wholly in the jurisdiction of the United States, and we are able to identify areas that meet the definition of critical habitat. Therefore, because none of the circumstances enumerated in our regulations at 50 CFR 424.12(a)(1) has been met and because there are no other circumstances the Secretary has identified for which this designation of critical habitat would be not prudent, we have determined that the designation of critical habitat is prudent for these species. 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 Mexican gartersnake and narrowheaded gartersnake is determinable. Our regulations at 50 CFR 424.12(a)(2) state that critical habitat is not determinable when one or both of the following situations exist: (i) Data sufficient to perform required analyses are lacking, or (ii) The biological needs of the species are not sufficiently well known to identify any area that meets the definition of ‘‘critical habitat.’’ When critical habitat is not determinable, the Act allows the Service an additional year to publish a critical habitat designation (16 U.S.C. 1533(b)(6)(C)(ii)). We reviewed the available information pertaining to the biological needs of these species and habitat characteristics where these species are located. This and other information represent the best scientific and commercial data available and led us to conclude that the designation of critical habitat is determinable for the Mexican gartersnake and narrow-headed gartersnake. Changes From Previously Proposed Critical Habitat In this document, we are revising our proposed critical habitat designations for the northern Mexican gartersnake and narrow-headed gartersnake (78 FR 41550; July 10, 2013). We based these revisions on information we received during the comment period on the July 10, 2013, proposed rule, as well as on relevant scientific research conducted after the publication of that proposed rule. After the publication of the proposed rule, we found that there was E:\FR\FM\28APP2.SGM 28APP2 23612 Federal Register / Vol. 85, No. 82 / Tuesday, April 28, 2020 / Proposed Rules substantial scientific disagreement in the criteria we used to define what areas were occupied at the time of listing for each species, and the criteria we used to identify the lateral extent of critical habitat boundaries. We also received additional information including locations of each species at the time of listing, and the biological needs and corresponding habitat characteristics of each species. We also note that we no longer use primary constituent elements (PCEs) to identify areas as critical habitat. The Service eliminated primary constituent elements due to redundancy with the physical or biological features (PBFs). This change in terminology is in accordance with a February 11, 2016 (81 FR 7414), rule to implement changes to the regulations for designating critical habitat. We used the comments and additional information to revise: (1) The PBFs that are essential to the conservation of the species and which may require special management considerations or protection under the Act, (2) the criteria used to define the areas occupied at the time of listing for each species, and (3) the criteria used to identify critical habitat boundaries. We then apply the revised PBFs and identification criteria for each gartersnake species along with additional information we received regarding where these PBFs exist on the landscape to determine the geographic extent of each critical habitat unit. Finally, we provide clarification of some of the terms we used to define critical habitat for each species. jbell on DSKJLSW7X2PROD with PROPOSALS2 Primary Constituent Elements Background In accordance with section 3(5)(A)(i) of the Act and regulations at 50 CFR 424.12(b), in determining which areas we will designate as critical habitat from within the geographical area occupied by the species at the time of listing, we consider the physical or biological features that are essential to the conservation of the species and that may require special management considerations or protection. The regulations at 50 CFR 424.02 define ‘‘physical or biological features essential to the conservation of the species’’ as the features that occur in specific areas and that are essential to support the lifehistory needs of the species, including, but not limited to, water characteristics, soil type, geological features, sites, 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 VerDate Sep<11>2014 19:35 Apr 27, 2020 Jkt 250001 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. For example, physical features essential to the conservation of the species 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 earlysuccessional 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 essential 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. Previous Proposed Rule’s Primary Constituent Elements As stated above, we now use only PBFs that are essential to the conservation of the species to describe critical habitat. We have modified the PCEs from the previous critical habitat rule, which are now PBFs in this rule. For your convenience, we are providing the PCEs from the previous proposed critical habitat rule for you to compare the changes. The northern Mexican gartersnake’s previous PCEs were: (1) Aquatic or riparian habitat that includes: a. Perennial or spatially intermittent streams of low to moderate gradient that possess appropriate amounts of inchannel pools, off-channel pools, or backwater habitat, and that possess a natural, unregulated flow regime that allows for periodic flooding or, if flows are modified or regulated, a flow regime that allows for adequate river functions, PO 00000 Frm 00006 Fmt 4701 Sfmt 4702 such as flows capable of processing sediment loads; or b. Lentic wetlands such as livestock tanks, springs, and cienegas; and c. Shoreline habitat with adequate organic and natural inorganic structural complexity to allow for thermoregulation, gestation, shelter, protection from predators, and foraging opportunities (e.g., boulders, rocks, organic debris such as downed trees or logs, debris jams, small mammal burrows, or leaf litter); and d. Aquatic habitat with characteristics that support a native amphibian prey base, such as salinities less than 5 parts per thousand, pH greater than or equal to 5.6, and pollutants absent or minimally present at levels that do not affect survival of any age class of the northern Mexican gartersnake or the maintenance of prey populations. (2) Adequate terrestrial space (600 feet (ft) (182.9 meter (m)) lateral extent to either side of bankfull stage) adjacent to designated stream systems with sufficient natural structural characteristics to support life-history functions such as gestation, immigration, emigration, and brumation (extended inactivity). (3) A prey base consisting of viable populations of native amphibian and native fish species. (4) An absence of nonnative fish species of the families Centrarchidae and Ictaluridae, bullfrogs (Lithobates catesbeianus), and/or crayfish (Orconectes virilis, Procambarus clarki, etc.), or occurrence of these nonnative species at low enough levels such that recruitment of northern Mexican gartersnakes and maintenance of viable native fish or soft-rayed, nonnative fish populations (prey) is still occurring. The narrow-headed gartersnake’s previous PCEs were: (1) Stream habitat, which includes: a. Perennial or spatially intermittent streams with sand, cobble, and boulder substrate and low or moderate amounts of fine sediment and substrate embeddedness, and that possess appropriate amounts of pool, riffle, and run habitat to sustain native fish populations; b. A natural, unregulated flow regime that allows for periodic flooding or, if flows are modified or regulated, a flow regime that allows for adequate river functions, such as flows capable of processing sediment loads; c. Shoreline habitat with adequate organic and natural inorganic structural complexity (e.g., boulders, cobble bars, vegetation, and organic debris such as downed trees or logs, debris jams), with appropriate amounts of shrub- and sapling-sized plants to allow for E:\FR\FM\28APP2.SGM 28APP2 Federal Register / Vol. 85, No. 82 / Tuesday, April 28, 2020 / Proposed Rules jbell on DSKJLSW7X2PROD with PROPOSALS2 thermoregulation, gestation, shelter, protection from predators, and foraging opportunities; and d. Aquatic habitat with no pollutants or, if pollutants are present, levels that do not affect survival of any age class of the narrow-headed gartersnake or the maintenance of prey populations. (2) Adequate terrestrial space (600 ft (182.9 m) lateral extent to either side of bankfull stage) adjacent to designated stream systems with sufficient natural structural characteristics to support lifehistory functions such as gestation, immigration, emigration, and brumation. (3) A prey base consisting of viable populations of native fish species or soft-rayed, nonnative fish species. (4) An absence of nonnative fish species of the families Centrarchidae and Ictaluridae, bullfrogs (Lithobates catesbeianus), and/or crayfish (Orconectes virilis, Procambarus clarki, etc.), or occurrence of these nonnative species at low enough levels such that recruitment of narrow-headed gartersnakes and maintenance of viable native fish or soft-rayed, nonnative fish populations (prey) is still occurring. Stream Flow In the July 10, 2013, proposed rule (78 FR 41550) under PCE 1 for each species we use the terms ‘‘perennial’’ and ‘‘spatially intermittent,’’ but we did not include a definition of perennial or spatially intermittent flow. In this revised proposed rule, we are defining the terms perennial, spatially intermittent, and ephemeral as related to stream flow in PBF 1 for each gartersnake species. We are clarifying the spectrum of stream flow regimes that provide stream habitat for each gartersnake species based on stream flow definitions in Levick et al. (2008, p. 6) and Stromberg et al. (2009, p. 330). A perennial stream or portion of a stream is defined as having surface flow continuously year round, except for infrequent periods of severe drought (Levick et al. 2008, p. 6). An intermittent stream is a stream where portions flow continuously only at certain time of the year (Levick et al. 2008, p. 6). An intermittent stream flows when it receives water from a spring, a ground-water source, or a surface source (such as melting snow [i.e., seasonal]). During the dry seasons, frequently compounded by high evapotranspiration of watershed vegetation, the ground water table may drop below the elevation of the streambed, causing surface flow to cease or reduce to a series of separate pools or short areas of flow (Gordon et al. 2004, p. 51). An ephemeral stream is VerDate Sep<11>2014 19:35 Apr 27, 2020 Jkt 250001 usually dry except for brief periods immediately following precipitation, and its channel is at all times above the groundwater table (Levick et al. 2008, p. 6). In the range of each gartersnake species, many streams have reaches with year-round water that are separated by intermittent or ephemeral reaches of flow, as a result of differences in geology along the stream. This variation of flow along a stream is common enough in the Southwest that hydrologists use the terms ‘‘interrupted,’’ ‘‘perennial interrupted,’’ or ‘‘spatially intermittent’’ to describe the spatial segmentation of a dryland stream into reaches that are perennial, intermittent, or ephemeral (Levick et al. 2008, p. 6; Stromberg et al. 2009, p. 330; Stromberg et al. 2013, p. 413). A stream that is interrupted, perennially interrupted, or spatially intermittent has perennial flow occurring in areas with shallow bedrock or high hydraulic connectivity to regional aquifers, and ephemeral to intermittent flow occurring in areas with deeper alluvial basins or greater distance from the headwaters (Stromberg et al. 2009, p. 330). The spatial patterning of wet and dry reaches on spatially intermittent streams changes through time in response to climatic fluctuations and to human modifications of the landscape (Stromberg et al. 2009, p. 331). In the remainder of this document, we use the terms ‘‘perennial,’’ ‘‘spatially intermittent,’’ and ‘‘ephemeral’’ in accordance with the above definitions. For northern Mexican gartersnake, streams that have perennial or spatially intermittent flow can provide stream habitat for the species. Ephemeral reaches of streams can serve as habitat for northern Mexican gartersnakes, and are included in critical habitat as a separate PBF (#7) if such reaches are between perennial sections of a stream that were occupied at the time of listing. Streams that have ephemeral flow over their entire length do not usually provide habitat for the northern Mexican gartersnake, but are considered critical habitat when they may serve as corridors between perennial streams and lentic aquatic habitats including springs, cienegas, and natural or constructed ponds (livestock tanks) that were occupied at the time of listing. For narrow-headed gartersnake, streams that have perennial flow or limited spatially intermittent flow that is primarily perennial provide stream habitat for the species. Narrow-headed gartersnakes have been documented in pools and shallow portions of an intermittent flow reach of the Blue River with wet areas separated by dry segments of 0.6 to 1.2 miles (1 to 2 PO 00000 Frm 00007 Fmt 4701 Sfmt 4702 23613 kilometers (km)) in length (Cotten et al. 2017, p. 687). The wetted areas where gartersnakes were detected also had abundant native prey of the narrowheaded gartersnake, indicating that these areas may provide greater foraging opportunities during low flow periods (Cotten et al. 2017, p. 687). However, ephemeral reaches of streams do not provide habitat for narrow-headed gartersnakes. Within the range of the narrow-headed gartersnake, perennial streams become ephemeral as they approach their headwaters. However, narrow-headed gartersnakes have not been found in these ephemeral reaches because their fish prey base is likely absent and there is no upstream perennial habitat, so the ephemeral reaches do not provide connectivity. Hydrologic Processes In the previous proposed critical habitat rule, hydrologic processes of a stream were captured in PCE 1 as part of a component of aquatic habitat: ‘‘[aquatic habitat that possesses] a natural, unregulated flow regime that allows for periodic flooding or, if flows are modified or regulated, a flow regime that allows for adequate river functions, such as flows capable of processing sediment loads.’’ These processes are not the aquatic habitat or terrestrial habitat components themselves, but the flow regime and physical hydrologic and geomorphic connection that create and maintain a stream channel and continuously redefine the boundary between aquatic and riparian habitat used by both gartersnake species. Both gartersnake species are dependent on terrestrial and aquatic habitat for all of their life-history functions, so it is important that hydrologic processes are present to maintain both the terrestrial and aquatic components of habitat for both gartersnake species. Therefore, we established a PBF (#2) for hydrological processes that is separate from the aquatic and terrestrial habitat PBF (#1). Lentic Wetlands For northern Mexican gartersnake, we removed lentic wetlands included in PCE 1 of the previous proposed rule and created a separate PBF (#6) that includes the aquatic and terrestrial components of these habitats. Shoreline Habitat In the previous proposed rule, shoreline habitat is included in PCE 1. For northern Mexican gartersnake, PCE 1 was ‘‘aquatic or riparian habitat’’ and for the narrow-headed gartersnake it was ‘‘stream habitat.’’ For both gartersnakes, we defined shoreline E:\FR\FM\28APP2.SGM 28APP2 23614 Federal Register / Vol. 85, No. 82 / Tuesday, April 28, 2020 / Proposed Rules jbell on DSKJLSW7X2PROD with PROPOSALS2 habitat as areas having ‘‘adequate organic and inorganic structural complexity’’ with examples such as boulders, rocks, and organic debris for thermoregulation, gestation, shelter, protection from predators, and foraging opportunities. In this revised proposed rule, we are no longer including the term ‘‘shoreline habitat,’’ because shorelines fluctuate and can include both terrestrial and aquatic habitat features used by either gartersnake species. Instead, a component of PBF 1 focuses on the organic and natural inorganic structural features important to each gartersnake species that fall within the stream channel that encompasses a fluctuating shoreline. Water Quality In the July 10, 2013, proposed rule, for the northern Mexican gartersnake under PCE 1, we state: ‘‘Aquatic habitat with characteristics that support a native amphibian prey base, such as salinities less than 5 parts per thousand, pH greater than or equal to 5.6, and pollutants absent or minimally present at levels that do not affect survival of any age class of the northern Mexican gartersnake or the maintenance of prey populations’’ (78 FR 41550, July 10, 2013, p. 78 FR 41584). In that proposed rule, for the narrow-headed gartersnake under PCE 1, we state: ‘‘Aquatic habitat with no pollutants or, if pollutants are present, levels that do not affect survival of any age class of the narrow-headed gartersnake or the maintenance of prey populations’’ (78 FR 41550, July 10, 2013, p. 78 FR 41601). In this revised proposed rule, we are removing the specific salinity and pH requirement for habitat characteristics that support a native amphibian prey base for the northern Mexican gartersnake. As mentioned in the July 10, 2013, proposed rule, while native leopard frogs can be the primary prey base for adult northern Mexican gartersnakes in some areas, these gartersnakes feed on a variety of organisms that do not necessarily require the salinity and pH specified in the PCE (78 FR 41550, July 10, 2013, pp. 78 FR 41553–41554). Because we do not have salinity and pH values needed for the variety of aquatic organisms that the different age classes of northern Mexican gartersnakes eat, we are making this PBF more general. We did not make substantive changes to the relevant PBF component for narrowheaded gartersnake. Prey Base In the July 10, 2013, proposed rule, we described a wholly native prey base VerDate Sep<11>2014 19:35 Apr 27, 2020 Jkt 250001 of amphibians and fish for the northern Mexican gartersnake in PCE 3, but in PCE 4, we state that nonnative fish are also prey for the species. In the discussion of PBFs, we noted that northern Mexican gartersnakes consume primarily amphibians and fishes, but that occasional invertebrates and other vertebrate taxa may be eaten opportunistically (78 FR 41550, July 10, 2013, p. 78 FR 41554) and that the success of northern Mexican gartersnake populations is, in some cases, tied to nonnative prey species consisting of larval and juvenile bullfrogs. We did not include these other taxa and bullfrogs in the PCEs because they are either relatively rare in the diet (in the case of invertebrates and other vertebrates) or in the case of bullfrogs, the adult frogs prey voraciously on gartersnake, and so despite the fact that the snakes eat the juveniles, the presence of bullfrogs indicates that the habitat is degraded. We received additional information regarding the prey base of northern Mexican gartersnake. Additional research confirms that in some areas where native aquatic prey species are not available, viable populations of northern Mexican gartersnakes likely rely on bullfrogs and nonnative, softrayed and potentially spiny-rayed fish as a primary food source (Emmons et al. 2016, pp. 556–557; Emmons and Nowak 2016a, p. 44; Emmons and Nowak 2013, pp. 6, 15; Lashway 2012, p. 7). In other areas where native ranid frogs are no longer present, we have additional information to support that northern Mexican gartersnakes consume other anurans (frogs and toads), small mammals, lizards, and invertebrate species (Caldwell 2014, p. 1; d’Orgeix et al. 2013, p. 214; Emmons and Nowak 2016b, p. 9; Manjarriez et al. 2017, table 1). In this revised proposed rule, for northern Mexican gartersnake, we are removing the requirement for a wholly native prey base and including the additional prey species described above in PBF 3. We also used ‘‘anurans’’ (frogs and toads) instead of ‘‘amphibians’’ to more accurately describe the gartersnake’s primary prey. We do not make substantive changes to PBF 3 for narrow-headed gartersnake. Primary Constituent Elements/Critical Habitat Boundaries Terrestrial Space Along Streams In the previous proposed rule, PCE 2 for both gartersnakes included ‘‘[a]dequate terrestrial space (600 ft (182.9 m) lateral extent to either side of bankfull stage) adjacent to designated stream systems with sufficient structural PO 00000 Frm 00008 Fmt 4701 Sfmt 4702 characteristics to support life-history functions such as gestation, immigration, emigration, and brumation [extended inactivity]’’ (78 FR 41550, July 10, 2013, pp. 78 FR 41584 and 78 FR 41601). In the discussion of the PBFs and PCEs, we stated that the northern Mexican gartersnake has been found up to 330 ft (100 m) away from permanent water (Rosen and Schwalbe 1988, p. 27), and the narrow-headed gartersnake has been found up to 650 ft (200 m) from water (Nowak 2006, pp. 19–21; 78 FR 41550, July 10, 2013, p. 78 FR 41557). We then state that ‘‘[b]ased on the literature, we expect the majority of terrestrial activity for both species occurs within 600 ft (182.9 m) of permanent water in lotic habitat’’ and that ‘‘we believe a 600-ft (182.9-m) lateral extent to either side of bankfull stage will sufficiently protect the majority of important terrestrial habitat; provide brumation, gestation, and dispersal opportunities; and reduce the impacts of high flow events, thereby providing adequate protection to proposed critical habitat areas’’ (78 FR 41550, July 10, 2013, p. 78 FR 41557). We go on to say that we determined 600-ft (182.9-m) lateral extent from bankfull width for four biological reasons, including maintaining the biological integrity and natural dynamics of the river system and associated riparian habitat, nutrient recharge, general aquatic habitat values, and providing adequate space for normal gartersnake behaviors. We received numerous comments and additional scientific information regarding our definition of adequate terrestrial space for the two gartersnakes in two general categories. First, using a single distance of 600 ft (182.9 m) lateral extent from bankfull stage for both gartersnake species includes areas outside the area typically used by each gartersnake species and can include areas that do not have any of the PBFs essential to the conservation of each species, especially in higher order streams (Nowak 2006, pp. 19–20; Jennings and Christman 2012, pp. 8–12; Emmons and Nowak 2016a, p. 30; Myrand et al. 2017 p. 36). Second, using ‘‘bankfull width’’ as a measurement point for the lateral extent of critical habitat is difficult to determine on the ground as evidenced by our lack of mapping it as such in the July 10, 2013, proposed rule. Instead, we mapped critical habitat as a 1,200-ft (366-m) polygon surrounding the centerline of a stream (78 FR 41550, July 10, 2013, pp. 78 FR 41585, 78 FR 41601). We discuss both issues below. At the time of the publication of the July 10, 2013, proposed rule, most of the E:\FR\FM\28APP2.SGM 28APP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 Federal Register / Vol. 85, No. 82 / Tuesday, April 28, 2020 / Proposed Rules information we had on locations of both gartersnake species was from studies where traps were set within water to capture gartersnakes and then gartersnakes were subsequently released. This survey method does not provide information on how these species use terrestrial habitat. Nowak et al. (2006, entire), the study we referenced in our July 10, 2013, proposed rule, was the first study that used radio-telemetered narrow-headed gartersnakes to look at habitat use. This study only reported an individual narrow-headed gartersnake moving in a straight-line distance of 650 ft (200 m) from water location, which we used to inform lateral extent of critical habitat for both gartersnake species because this was the best available information. However, since the publication of the 2013 proposed rule, E. Nowak (2015) provided the Service a correct interpretation of her telemetry data for this individual and for the other narrowheaded gartersnakes recorded in this study. Nowak clarified that the narrowheaded gartersnake was found on a steep slope approximately 390 ft (150 m) above a stream in a narrow canyon in a brumation site (Nowak 2006, p. 17). Nowak further clarified that other narrow-headed gartersnakes were recorded using brumation sites on the steep slope, reporting horizontal distances from brumation sites to stream centerline between 276 and 328 ft (84 and 100 m). Nowak (2006, pp. 19–20) also reported at least five other individual narrow-headed gartersnakes overwintering at brumation sites not on steep slopes at 66 to 98 ft (20 to 30 m) from water. The important difference in the distance from the stream is dependent on the adjacent terrestrial topography. If the topography is steep slopes, then the gartersnake is found farther from the stream, but this additional distance is vertical, not horizontal, from the stream bank. Since we published the 2013 proposed rule, researchers have completed additional telemetry studies for each gartersnake species that provide information on how each gartersnake species uses terrestrial habitat (Jennings and Christman 2012; Boyarski et al. 2015; Emmons and Nowak 2016a; Myrand et al. 2017; Sprague 2017; Nowak et al. 2019). For northern Mexican gartersnake, telemetry studies indicate home ranges of individuals ranging from 1.7 acres (0.7 ha) at a highly modified lentic site to 47.0 acres (19.04 ha) along a spatially intermittent stream (Boyarski et al. 2015, p. 12; Emmons and Nowak 2016a, pp. 27–28; Nowak et al. 2019, p. 31). Maximum VerDate Sep<11>2014 19:35 Apr 27, 2020 Jkt 250001 longitudinal length within these home ranges varied from approximately 148 ft (45 m) at the lentic site to 2,736 ft (834 m) along the spatially intermittent stream (Boyarski et al. 2015, p. 12; Emmons and Nowak 2016a, pp. 27–28; Nowak et al. 2019, p. 31). Mean distance to water of northern Mexican gartersnake locations ranged from 3.87 to 312.5 ft (1.18 to 95.25 m) along Tonto Creek in north-central Arizona (Nowak et al. 2019, p. 40). These studies of northern Mexican gartersnake indicate that this species overwinters in rodent burrows, cavities below boulders and rock fields, and below debris piles located 1.6 ft (0.5 m) to approximately 558 ft (170 m) from the water’s edge (Boyarski et al. 2015, p. 8; Emmons and Nowak 2016a, p. 30; Myrand et al. 2017, p. 21). Brumation sites were located an average of 129 ft (39.27 m) from the water’s edge in two different areas along the Verde River in Arizona (Emmons and Nowak 2016a, p. 30). Nowak et al. (2019, p. 36) reported brumation sites for 14 northern Mexican gartersnakes that ranged from 2 to 1,257 ft (0.7 to 383 m) from the water’s edge along the Tonto River in Arizona. Overwintering of seven gartersnakes at brumation sites was also recorded within 230 ft (70 m) of ponds, and one gartersnake overwintered at a site approximately 1,115 ft (350 m) from a pond (Boyarski et al. 2015, pp. 8, 11). For narrow-headed gartersnake, telemetry studies in New Mexico on the Tularosa River, Gila River, and Whitewater Creek found individuals an average of 58.7 ft (17.9 m) from water, with a maximum distance of 285 ft (87 m) across four different sites on the three streams with a sample size of 69 individuals (Jennings and Chirstman 2012, pp. 9–10). Researchers found most snakes within 3.28 ft (1 m) of the water’s edge (Jennings and Christman 2012, pp. 9–10). Narrow-headed gartersnakes were found with lowest average distance of 22.7 ft (6.9 m) during the dry season of 2010, and highest average distance of 88.3 ft (26.9 m) during the wet season in 2010 (Jennings and Chirstman 2012, pp. 9–10). Although, Nowak (2006, p. 19) reported that the maximum distance moved by one individual was 650 ft (200 m) from water on a steep hillside in a narrow canyon, she also reported that during the active season, she most often found individuals outside of water under boulders, small rocks, and broken concrete slabs located less than 328 ft (100 m) from the water’s edge within the floodplain of Oak Creek and West Fork Oak Creek, Arizona. Based on a review of this new information, clarification of Nowak’s data, and comments we received, it is PO 00000 Frm 00009 Fmt 4701 Sfmt 4702 23615 likely that 600 ft (182.9 m) does not accurately capture the lateral extent of terrestrial habitat used by either species. Consequently, we have modified the lateral extent boundary of critical habitat for both species. For northern Mexican gartersnake, we are defining the lateral extent to include the wetland or riparian zone adjacent to a stream or lentic water body, whichever is greater. Delineating based on riparian zone rather than delineating a set distance more accurately captures the foraging habitat used by the northern Mexican gartersnake. As described above in this section and under ‘‘Hydrologic Processes,’’ most northern Mexican gartersnake detections ranged from in water in the stream channel up to meadows or woodlands within the floodplain at the limit of the riparian zone. We are defining the riparian zone as the strip of vegetation along a stream that is of distinct composition and density from the surrounding uplands, or the area between the stream channel and the upland terrestrial ecosystem (Levick et al. 2008, pp. 6, 47). Although northern Mexican gartersnakes have been found in a variety of vegetation types within this riparian zone (i.e., grasses, shrubs, and wetland plants), the underlying characteristic of this habitat needed by the gartersnake appears to be dense vegetation or other natural structural components that provide cover for the species. Size of the riparian zone and composition of plants within the riparian zone varies widely across the range of northern Mexican gartersnake. The width of critical habitat for northern Mexican gartersnake along streams varies from approximately 50 to 7,000 ft (15 to 2,134 m). Because the width of wetland and riparian zone varies along and among streams, and some streams have little to no riparian habitat but have wetland habitat that includes some terrestrial components, delineating these areas rather than delineating a set distance from the stream channel better captures the needed habitat for the northern Mexican gartersnake. For narrow-headed gartersnake, we have modified the lateral extent boundary of critical habitat to include aquatic and terrestrial features within 89 ft (27 m) of the active channel of a stream. This distance captures the greatest average distance moved from the water during the wet season on the Tularosa River in New Mexico from a 3year study with a sample size of 69 individuals at two different sites (Jennings and Christman 2012, p. 12). This is the largest study to date. In addition, we have modified the delineation of where terrestrial habitat E:\FR\FM\28APP2.SGM 28APP2 23616 Federal Register / Vol. 85, No. 82 / Tuesday, April 28, 2020 / Proposed Rules jbell on DSKJLSW7X2PROD with PROPOSALS2 begins. We chose to use the active channel instead of bankfull width because the active channel effectively defines a river or stream as a feature on the landscape (Mersel and Lichvar 2014, pp. 11–12). The active channel is established and maintained by flows that occur with some regularity (several times per year to several times per decade), but not by very rare and extremely high flood events. The outer limits of the active channel can generally be defined by three primary indicators that together form a discernable mark on the landscape: A topographic break in slope, change in vegetation characteristics, and change in sediment characteristics (Mersel and Lichvar 2014, pp. 13–14). The active channel is often a fairly obvious and easy feature to identify in the field, allowing for rapid and consistent identification (Mersel and Lichvar 2014, p. 14). Further, the active channel can be consistently recognized by the public. These changes in determining lateral extent from streams have reduced the proposed critical habitat designation by 3,458 ac (1,399 ha), or less than 1 percent, of the area included in the July 10, 2013, proposed rule for critical habitat for northern Mexican gartersnake, and 41,927 ac (16,967 ha), or 20 percent, of the area included in that proposed rule for critical habitat for narrow-headed gartersnake (see tables 1a and 1b, below). In addition, we are no longer including terrestrial space as a separate PBF, but are including both terrestrial and aquatic features that make up a stream in a single PBF (PBF 1) that more accurately captures the habitat requirements essential to each gartersnake species. Overland Areas for Northern Mexican Gartersnake In the July 10, 2013, proposed rule, for northern Mexican gartersnake, 5 of the 14 critical habitat units included additional terrestrial space beyond the 600-ft (182.9-m) lateral extent from bankfull stage of streams (overland areas or terrestrial space). In the discussion of space for individual and population growth for normal behavior under PBFs, we state that ‘‘records for northern Mexican gartersnakes from semi-remote livestock tanks and spring sources suggest the species moves across the local landscape as part of its foraging ecology,’’ (78 FR 41550, July 10, 2013, p. 78 FR 41554), and we cite observations by Drummond and Marcias-Garcia (1983, pp. 24, 35) of northern Mexican gartersnakes wandering hundreds of meters away VerDate Sep<11>2014 19:35 Apr 27, 2020 Jkt 250001 from water, as well as Rosen and Schwalbe (1988, p. 27) observing a northern Mexican gartersnake 330 ft (100 m) away from permanent water. We described these areas as overland areas or terrestrial space between springs, seeps, streams, and stock tanks. We did not include these areas in a PCE, but we included them in the proposed designation of critical habitat. Upland areas that are distant from riparian habitat that the snakes use for foraging may be used while moving between habitats, but specific habitat attributes in these areas that are essential to the snakes have not been identified. In determining which areas we will designate as critical habitat from within the geographical area occupied by the species at the time of listing, the Act directs us to consider the physical or biological features (or PCEs under our previous regulations) that are essential to the conservation of the species and that may require special management considerations or protection. A common characteristic of these overland areas was the presence of natural or constructed livestock ponds within a grassland landscape in southern Arizona, although we did not define or discuss the scope of this grassland landscape in the July 10, 2013, proposed rule. We did not know how northern Mexican gartersnakes used the grassland landscape in between water features, so we used property and watershed boundaries to delineate large landscapes that encompassed the features that the species may use. We used a U.S. Geological Survey (USGS) Hydrological Unit Code (HUC) level 10 watershed boundary to delineate the Upper Santa Cruz River Subbasin Unit. We used property ownership boundaries to delineate the following units and subunits: Buenos Aires National Wildlife Refuge Unit, Las Cienegas National Conservation Area Subunit and Cienega Creek Natural Preserve Subunit in the Cienega Creek Subbasin Unit, Appleton-Whittell Research Ranch Subunit and Canelo Hills Cienega Preserve Subunit in the Babocomari River Subbasin Unit, and San Bernardino National Wildlife Refuge Unit. While property boundaries can delineate individual land management prescriptions and affect the likelihood for species persistence, property boundaries themselves are not linked to the PBFs that are essential to the conservation of northern Mexican gartersnake, where more accurate mapping methods are available, they should be used as an alternative to property boundaries. These overland areas encompassed 290,620 acres PO 00000 Frm 00010 Fmt 4701 Sfmt 4702 (47,441 ha) in the previous proposed rule, but only 12,745 acres (5,158 ha) had water bodies within them that contained PCE 1 and PCE 2, and were considered occupied at the time of listing. In other words, 96 percent of these lands included in critical habitat did not have PCEs for northern Mexican gartersnake as defined in the July 10, 2013, proposed rule. Upon further inspection of all known locations of the species, no northern Mexican gartersnakes have been detected in the aforementioned overland areas in southern Arizona outside of stream floodplains. These eight lentic sites occupied at the time of listing, including natural and constructed ponds, all fall within a stream floodplain, although some of these streams are ephemeral. Data are still lacking to explain how the species moves through the overland areas between perennial or intermittent aquatic features, but we used our reassessment of gartersnake locations in relation to stream floodplains, along with additional information obtained since the publication of the July 10, 2013, proposed rule, to refine the definition of terrestrial space used by the species. There is new information about how northern Mexican gartersnakes exploit seasonal amphibian prey species in ephemeral waters during the rainy season when prey is abundant within these grassland landscapes in southern Arizona (d’Orgeix et al. 2013, entire; Caldwell 2014, entire). After the first heavy rains of the monsoon season in 2012, northern Mexican gartersnakes were found foraging on seasonal amphibian prey (spadefood (Spea multiplicata)) and basking at the bases of Sacaton grass (Sporobolus wrightii) in and around a ponded area within an ephemeral section of the floodplain in O’Donnell Canyon. These northern Mexican gartersnakes were 0.75 miles (1.2 km) overland and 1.49 miles (2.3 km) along O’Donnell Canyon upstream of the closest known population of northern Mexican gartersnakes at Finley Tank (d’Orgeix 2013, p. 214). Caldwell (2014, p. 1) also found northern Mexican gartersnakes in wetted ephemeral habitat within the Cienega Creek floodplain: One in an off-channel marsh, and one in pool of water on a road that also contained spadefoot larva and metamorphs. We also have updated information on telemetered snakes moving in other terrestrial habitats along stream channels in northern Arizona (Emmons and Nowak 2013, entire; Emmons and Nowak 2016a, entire; Myrand et al. 2017, entire), as described earlier. This research has also E:\FR\FM\28APP2.SGM 28APP2 Federal Register / Vol. 85, No. 82 / Tuesday, April 28, 2020 / Proposed Rules shown that when northern Mexican gartersnakes were surface active in habitats with perennial stream flow in northern Arizona, they were observed outside of water concealed under dense vegetative most of the time. While we do not have similar information for gartersnakes in grassland habitats, ephemeral channels in southern Arizona usually have more vegetative cover than the surrounding uplands, so we can deduce that it is more likely that gartersnakes are using these more densely vegetated areas that provide more cover to successfully move between aquatic sites in these grasslands. Based on this information, we are not including the overland terrestrial space between springs, seeps, streams, and stock tanks. In this revised proposed rule, we are including the springs, seeps, streams, and stock tanks and the ephemeral drainages that connect these wetlands to perennial streams. The resulting proposed critical habitat better represents our current understanding of the life history of the northern Mexican gartersnake and the habitat characteristics that facilitate its life-history functions. Consequently, no units or subunits include overland grassland areas, and all areas considered occupied under this revised proposed rule are adjusted in size to appropriately reflect the PBFs (see table 1a, below). The removal of overland terrestrial space in these large grasslands has reduced the proposed critical habitat designation for northern Mexican gartersnake by 285,837 ac (115,674 ha), or 68 percent, of the area included in the July 10, 2013, proposed rule. jbell on DSKJLSW7X2PROD with PROPOSALS2 Elevation In the July 10, 2013, proposed rule, we erroneously included some areas that are not within the elevation range of narrow-headed gartersnake, including portions of the West Fork Gila River, Black Canyon, Iron Creek, Diamond Creek, and Whitewater Creek. In this revised proposed rule, we add the elevation range of each corresponding gartersnake species as a PBF to capture the range of where each species has been documented and exclude the areas that are outside the elevation ranges where the species occur. This reduces the proposed critical habitat designation by 2,320 ac (939 ha), or 1 percent, of the area included in the July 10, 2013, proposed rule for critical habitat for narrowheaded gartersnake (see table 1b, below). VerDate Sep<11>2014 19:35 Apr 27, 2020 Jkt 250001 Changes to Criteria Used To Identify Critical Habitat Occupancy Records On July 10, 2013, we published proposed rules to list both gartersnake species (78 FR 41500) and to designate critical habitat for both gartersnake species (78 FR 41550). On July 8, 2014, we published a final rule (79 FR 38678) listing both species. In the proposed rule to designate critical habitat (78 FR 41550; July 10, 2013), we considered an entire stream as occupied at the time of listing for each corresponding gartersnake if it was within the historical range of the species, contained aquatic and terrestrial components of habitat defined by PCE 1 and PCE 2, had at least one record of the species dated 1980 or later, and had at least one native prey species present (78 FR 41550, July 10, 2013, p. 78 FR 41556). For the northern Mexican gartersnake, we also considered large overland areas (grasslands) within specific land ownership or watershed as occupied if they met the above criteria. We have reconsidered the use the criteria of one record of the species dated 1980 or later as a proxy for what was occupied at the time of listing. We received comments that using records dated 1980 or later to determine which streams are occupied at the time of listing is inconsistent with definitions we used to define the status of the northern Mexican gartersnake in prior Service status assessment documents, that our approach is not supported by the scientific literature, and that low gartersnake detection probabilities do not justify a broad historical approach to designate critical habitat. Thus, in this revised proposed rule, we take a more accurate approach (described below) to conclude what areas were likely occupied at the time of listing in 2014. For northern Mexican gartersnake, the definition of occupancy we used to determine critical habitat in the July 10, 2013, proposed rule is significantly different from the criteria that we used to define what areas we considered the northern Mexican gartersnake extant or extirpated in other previous Service documents. In the 2006 and 2008 12month findings (71 FR 56228, September 26, 2006; and 73 FR 71788, November 25, 2008, respectively), as well as in updates to the ‘‘Species Assessment and Listing Priority Form’’ described in our annual candidate notices of review (see 73 FR 75176, December 10, 2008; 74 FR 57804, November 9, 2009; 75 FR 69222, November 10, 2010; 76 FR 66370, October 26, 2011), ‘‘extant’’ was defined PO 00000 Frm 00011 Fmt 4701 Sfmt 4702 23617 as areas where the species is expected to reliably occur in appropriate habitat as supported by museum records or recent, reliable observations. Based on this definition, only 42 percent of the total area considered occupied at the time of listing by the species in the July 10, 2013, proposed critical habitat designation was considered extant from 2006 to 2011. From 2006–2011, the Service defined ‘‘extirpated’’ as that there have been no individuals reported for a decade or longer at a site within the historical distribution of the species, despite survey efforts, and there is no expectation of natural recovery at the site due to the presence of known or strongly suspected causes of extirpation. Furthermore, the Service defined ‘‘unknown’’ as the species occurred based on museum records (mostly historically) but access is restricted, or survey data unavailable or insufficient, or where threats could preclude occupancy. Of the total area considered occupied by the species in the July 10, 2013, proposed critical habitat designation, 16 percent would have been considered extirpated, 23 percent would have been considered unknown, and 19 percent would have had no status based on the 2006–2011 definitions of status for northern Mexican gartersnake. In the July 10, 2013, proposed listing rule (78 FR 41500), we changed how we defined status to correspond with our definition of ‘‘occupied’’ in the July 10, 2013, proposed critical habitat rule (78 FR 41550). The most significant change in those 2013 publications was that we considered a gartersnake species extant in an area if it had been reported in an area in the past 33 years regardless of negative survey efforts or threats precluding occupancy. We justified using records of each species from the 1980s to determine that an area was occupied at the time of listing by stating that ‘‘both species of gartersnake are cryptic, secretive, difficult to detect, quick to escape underwater, and capable of persisting in low or very low population densities that make positive detections nearly impossible in structurally complex habitat’’ (78 FR 41550, July 10, 2013, p. 78 FR 41556). For narrow-headed gartersnake, we had no previous Service documents that addressed occupancy of the species. For this revised proposed rule, we reassessed occupancy at the time of listing for each gartersnake by reviewing all records for each gartersnake that we used in the July 10, 2013, proposed critical habitat rule in conjunction with expected survivorship of each species, subsequent surveys in areas that had no E:\FR\FM\28APP2.SGM 28APP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 23618 Federal Register / Vol. 85, No. 82 / Tuesday, April 28, 2020 / Proposed Rules detection of the corresponding gartersnake species, and changes in threats that may have prevented occupancy at time of listing. Understanding longevity of a species can inform how long we can reasonably expect a species is still extant in an area, regardless of detection probability. The oldest estimated northern Mexican gartersnake is between 14 and 16 years old, although growth rate calculations are still preliminary (M. Ryan 2020). The longest years between recaptures from these mark-recapture studies is 9 years (M. Ryan 2020, pers. comm.). Narrow-headed gartersnakes may live up to 10 years or longer in the wild (Rosen and Schwalbe 1988, p. 38). An individual narrow-headed gartersnake captured in the wild as an adult was kept in captivity for 11 years; and estimated to be 16 years old (M. Ryan 2020). Based on this information, we estimate maximum longevity for each gartersnake species is 15 years, so that it is reasonable to conclude that a gartersnake detected in 1998 or later represents a population that could still be present at the time of proposed listing in 2013, depending on the extent of threats in the area. Although it is possible that gartersnakes are still extant in areas where they were detected only during the 1980s, we have determined that the best available information reflecting occupancy at the time of listing supports a more recent date of records since 1998. In the July 10, 2013, proposed critical habitat rule, 8 percent of the critical habitat designation for northern Mexican gartersnake and 17 percent of the designation for narrow-headed gartersnake was considered occupied at the time of listing, based solely on records of the corresponding species dated before 1998. For northern Mexican gartersnake, these areas included Mule Creek Unit, Upper Salt River Subbasin Unit, and Agua Fria River Subbasin Unit in their entirety, and Bear Canyon Creek Subunit in San Pedro River Subbasin Unit and Turkey Creek Subunit in Babocomari River Subbasin Unit. For narrow-headed gartersnake, areas included Turkey Creek Subunit in Upper Gila River Subbasin Unit; and Salt River, White River, Carrizo Creek, Cibecue Creek, and Diamond Creek subunits in Upper Salt River Subbasin Unit. We note that the San Bernardino National Wildlife Refuge Unit did not have a verified northern Mexican gartersnake record dated 1998 or later. This unit was not included in the revised proposed rule. In addition, Parker Canyon and Parker Canyon Lake were specifically mentioned as part of the occupied VerDate Sep<11>2014 19:35 Apr 27, 2020 Jkt 250001 Upper Santa Cruz River Unit for northern Mexican gartersnake in the July 10, 2013, proposed rule, but the last detection of the species in this area was in 1979 (Holycross et al. 2006, appendix A). Redrock Canyon does not have a record of the northern Mexican gartersnake, and was also erroneously included in the July 10, 2013, proposed rule. Instead, the species was found in nearby Cott Tank Drainage and is included in this revised proposed rule (Jones 2009). For narrow-headed gartersnake, we note that the Gila River Subunit in the Middle Gila River Subbasin Unit had no records of the species and was erroneously included in the July 10, 2013, proposed rule. In addition, East Fork Gila River had no confirmed post-1980 records of the species and was erroneously included in the July 10, 2013, proposed rule (Propst 2015). Based on our analyses in the rule listing the two garternakes (79 FR 38678; July 8, 2014), we conclude that there has been a significant decline in both species over the past 50 years. This decline appeared to accelerate during the two decades immediately before listing occurred. From this observation, we conclude that many areas that were occupied by the species in surveys during the 1980s are likely no longer occupied because those populations have disappeared. To determine where loss of populations was likely, we reviewed survey efforts after 1989 that did not detect gartersnakes in some of the areas mentioned above, and portions of other units and subunits included in the July 10, 2013, proposed critical habitat rule. We analyzed this to determine whether the cryptic nature of the species was a valid argument for considering areas that only have gartersnake records from the 1980s as still occupied at the time of listing in 2013. All of the surveys conducted since the 1980s included at least the same amount or more search effort than those surveys that detected each species in the 1980s. Since 1998, researchers have detected each gartersnake species in many areas where they were found in the 1980s. Areas where each gartersnake was found after 1997 are included in this revised proposed rule. This includes portions of 9 of the 13 units for northern Mexican gartersnake, and portions of 6 of the 7 units for narrowheaded gartersnake from the July 10, 2013, proposed rule. Resurveyed areas with no confirmed detection of northern Mexican gartersnakes since the 1980s include Mule Creek (Hotle et al. 2012, p. 1), Black River (Holycross et al. 2006, p. 30), Big Bonito Creek (Holycross et al. PO 00000 Frm 00012 Fmt 4701 Sfmt 4702 2006, p. 64), Verde River downstream of Beasley Flat (Holycross et al. 2006, p. 26; Emmons and Nowak 2012, pp. 11– 13), Agua Fria River (Holycross et al. 2006, pp. 15–18; Burger 2016, p. 3), Little Ash Creek (Holycross et al. 2006, p. 19; Emmons and Nowak 2012, p. 32; Burger 2016, p. 3), and Black Draw and lentic habitats on San Bernardino National Wildlife Refuge (Radke 2006). Resurveyed areas with no confirmed detection of narrow-headed gartersnakes since the 1980s include the Gila River Subunit downstream of the Middle Box (Christman and Jennings 2017, pp. 4–12; Jennings et al. 2017, pp. 13–14; Jennings et al. 2018, pp. 10–13; Jennings and Christman 2019, p. 5); San Francisco River downstream of confluence with Whitewater Creek (Holycross et al. 2006, p. 66; Hellekson 2012), and Salt River (Holycross et al. 2006, pp. 38–39). It is reasonable to conclude that areas surveyed within 15 years of listing with no detection of the corresponding gartersnake species were not occupied at the time of listing. Survey efforts in these areas were comparable to or greater than surveys conducted in the 1980s that detected the species. Additionally, comparable surveys did detect gartersnakes in other areas where the species was present in the 1980s. Finally, we would expect that some populations would be lost during the decades preceding listing when numbers of both gartersnakes were declining. These declines are what eventually led to the need to list both species. As explained extensively in the final listing rule for both gartersnake species (79 FR 38678, July 8, 2014, pp. 79 FR 38688–79 FR 38702), aquatic vertebrate survey efforts throughout the range of both species indicate that native prey species of both gartersnakes have decreased or are absent, while nonnative predators, including bullfrogs, crayfish, and spiny-rayed fish, continue to increase in many of the areas where both gartersnakes were present in the 1980s (Emmons and Nowak 2012, pp. 11–14; Gibson et al. 2015, pp. 360–364; Burger 2016, pp. 21– 32; Emmons and Nowak 2016a, pp. 43– 44; Christman and Jennings 2017, p. 14; Hall 2017, pp. 12–13; Jennings et al. 2018, p. 19). We acknowledge that both gartersnake species are extant in some areas that have abundant nonnative, aquatic predators, some of which also are prey for gartersnakes, so presence of nonnative aquatic predators is not always indicative of absence of these gartersnakes (Emmons and Nowak 2012, p. 31; Emmons and Nowak 2016a, p. 13; Emmons et al. 2016, entire; Nowak et al. 2016, pp. 5–6; Lashway 2015, p. 5). We E:\FR\FM\28APP2.SGM 28APP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 Federal Register / Vol. 85, No. 82 / Tuesday, April 28, 2020 / Proposed Rules also acknowledge that we do not have a good understanding of why gartersnake populations are able to survive in some areas with aquatic predators and not in other areas (Burger 2016, pp. 13–15). However, we think it is reasonable to conclude that streams, stream reaches, and lentic water bodies were not occupied at the time of listing if they have only gartersnake records older than 1998 and have experienced a rapid decline in native prey species coupled with an increase in nonnative aquatic predators since gartersnakes were detected in these areas in the 1980s. In summary, through this review of gartersnake occupancy, we determined that a stream, stream reach, or lentic water body was occupied at the time of listing for each gartersnake species if it is within the historical range of the species, contains all PBFs for the species, (although the PBFs concerning prey availability and presence of nonnative predators are often in degraded condition), and a last known record of occupancy in 1998 or later. As a result, six subunits in five units of critical habitat for northern Mexican gartersnake and nine subunits in four units of critical habitat for narrowheaded gartersnake included in the July 10, 2013, proposed rule are no longer included in this revised proposed critical habitat designation their entirety. This change reduced the proposed critical habitat designation by 35,426 ac (14,336 ha), or 9 percent, of the area included in the July 10, 2013, proposed rule for northern Mexican gartersnake, and 47,535 ac (19,237 ha), or 23 percent, of the area included in that proposed rule for narrow-headed gartersnake (see tables 1a and 1b, below). Other units and subunits are shortened in length due to our definition of occupancy as described below under Stream Length. We included gartersnake detections of each gartersnake that occurred after the species was listed because these areas were likely occupied at the time of listing in 2014. Both of these species are cryptic in nature and may not be detected without intensive surveys. Because populations for these species are generally small, isolated, and in decline it is not likely that the species have colonized new areas since 2014; these areas were most likely occupied at the time of listing, but either had not been surveyed or the species were present but not detected during surveys. However, we did not include streams or lentic water bodies where gartersnakes VerDate Sep<11>2014 19:35 Apr 27, 2020 Jkt 250001 were released for recovery purposes after the species was listed that had not been historically occupied by the species. This added one new unit and five subunits in four existing units of critical habitat for northern Mexican gartersnake (7,040 ac (2,848 ha)) and five subunits in two units of critical habitat for narrow-headed gartersnake (1,181 ac (478 ha)) in this revised proposed rule (see tables 1a and 1b, below). Stream Length In the July 10, 2013, proposed critical habitat rule, if a stream had at least one known record for the each gartersnake species and at least one record of a native prey species currently present, the entire stream length was included in proposed critical habitat. In the discussion, we stated, ‘‘With respect to length (in proposed designations based on flowing streams), the proposed areas were designed to provide sufficient aquatic and terrestrial habitat for normal behaviors of northern Mexican and narrow-headed gartersnakes of all age classes’’ (78 FR 41550, p. 78 FR 41556). We received numerous general comments and comments on specific stream reaches that are not habitat for the corresponding gartersnake. In this revised proposed rule, for each gartersnake species, we used comments we received and reports on water availability, prey availability, and gartersnake surveys to re-evaluate all streams and determine which stream reaches contain PBFs and where PBFs are lacking. Stream reaches that lack PBFs include areas where water flow became completely ephemeral along an otherwise perennial or spatially intermittent stream, hydrologic processes needed to maintain streams could not be recovered, nonnative aquatic predators outnumbered native prey species, or streams were outside the elevation range. In addition, reaches with multiple negative surveys without a subsequent positive survey or reaches that have no records of the corresponding gartersnake species are not included, as described above under Occupancy Records. We do include stream reaches that lack survey data for the corresponding gartersnake, if they have positive observation records of the species dated 1998 or later both upstream and downstream of the stream reach and have all of the PBFs. We also reviewed the best available information we have on home range size and potential dispersal distance for each gartersnake species to inform upstream PO 00000 Frm 00013 Fmt 4701 Sfmt 4702 23619 and downstream boundaries of each unit and subunit of critical habitat. As explained earlier, the maximum longitudinal distance measured across home range areas of northern Mexican gartersnake tracked for at least one year was 4,852 ft (1,478.89 m) for one individual, and ranged from 587.9 to 2,580 ft (179.2 to 481.58 m) for eight other northern Mexican gartersnakes (Nowak et al. 2019, pp. 24–25). Maximum longitudinal distance measured across home range areas of narrow-headed gartersnakes ranged from 82 to 285 feet (25 to 87 m) (Jennings and Christman 2012, pp. 9– 10). These longitudinal home range distances were all determined from adult gartersnakes, and did not inform how juvenile gartersnakes are dispersing along a stream. Juvenile dispersal is important because snakes of different age classes behave differently, and juvenile gartersnakes may move farther along a stream as they search for and establish suitable home ranges than do adults with established home ranges. Because we have no information on how juvenile northern Mexican gartersnakes and narrow-headed gartersnakes disperse, we used information from a long-term dispersal study on neonate, juvenile, and adult age classes of the Oregon gartersnake (Thamnophis atratus hydrophilus) in a free-flowing stream environment in northern California (Welsh et al. 2010, entire). This is the only dispersal study available for another aquatic Thamnophis species in the United States, so we used it as a surrogate for determining upstream and downstream movements of both northern Mexican and narrow-headed gartersnakes, which are also aquatic Thamnophis species. The greatest movement was made by a juvenile recaptured as an adult 2.2 mi (3.6 km) upstream from the initial capture location (Welsh et al. 2010, p. 79). Therefore, in this revised proposed rule, we delineate upstream and downstream critical habitat boundaries of a stream reach at 2.2 mi (3.6 km) from a known gartersnake observation record. These changes in determining stream length reduced the proposed critical habitat designation by 72,955 ac (29,524 ha), or 17 percent, of the area included in the July 10, 2013, proposed rule for critical habitat for northern Mexican gartersnake, and 101,597 ac (41,115 ha), or 48 percent, of the area included in that proposed rule for critical habitat for narrow-headed gartersnake (see tables 1a and 1b, below). E:\FR\FM\28APP2.SGM 28APP2 23620 Federal Register / Vol. 85, No. 82 / Tuesday, April 28, 2020 / Proposed Rules TABLE 1a—CHANGES TO NORTHERN MEXICAN GARTERSNAKE PROPOSED CRITICAL HABITAT UNITS Previous subunit Previous unit New unit New subunit Length miles (kilometers) Previous Upper Gila River. ........................ Mule Creek ...... Upper Salt River. Tonto Creek .... Verde River ..... Agua Fria River Bill Williams River. Buenos Aires NWR. Cienega Creek Subbasin. jbell on DSKJLSW7X2PROD with PROPOSALS2 VerDate Sep<11>2014 New Previous New Upper Gila River Subbasin. ........................ ........................ Removed * ..... Removed * ..... ........................ 148 (239) 13 (21) 21,135 (8,553) 1,132 (458) Gila River ....... Duck Creek .... ........................ ........................ 148 (239) 0 19 (30) 156 (251) 9 (14) 4 (6) 0 0 21,135 (8,553) 0 2,579 (1,044) 22,218 (8,991) 1,028 (416) 104 (42) 0 0 ........................ ........................ Removed * ..... Removed * ..... 114 (184) 42 (67) 0 0 16,392 (6,634) 5,826 (2,358) 0 0 Tonto Creek ... Verde River Subbasin. ........................ ........................ ........................ 65 (105) 201 (323) 32 (52) 61 (99) 8,936 (3,616) 29,191 (11,813) 4,302 (1,741) 5,246 (2,123) Verde River .... 140 (225) 35 (56) 20,526 (8,307) 4,133 (1,672) ........................ ........................ Removed * ..... ........................ Oak Creek ..... Spring Creek .. ........................ Removed * ..... 39 23 56 49 (62) (36) (91) (80) 23 (37) 4 (6) 0 0 ........................ Removed * ..... 10 (11) ........................ ........................ Bill Williams River Subbasin. ........................ ........................ ........................ ........................ ........................ ........................ Lower Colorado River. Arivaca Cienega. Cienega Creek Subbasin. ........................ ........................ ........................ ........................ ........................ Black River .... Big Bonito Creek. ........................ ........................ Upper Verde River. Oak Creek ..... Spring Creek .. ........................ Agua Fria River Mainstem. Little Ash Creek. ........................ ........................ ........................ Cienega Creek Redrock Canyon. Upper Santa Cruz River Subbasin 4. Area acres (hectares) 5,533 3,131 7,946 6,989 (2,239) (1,267) (3,215) (2,828) 1,014 (410) 99 (40) 0 0 0 957 (387) 0 36 (58) 29 (46) 5,412 (2,190) 4,049 (1,639) Bill Williams River. Big Sandy River. Santa Maria River. ........................ 36 (58) 15 (24) 5,412 (2,190) 1,805 (730) 0 8 (13) 0 932 (377) 0 5 (9) 0 1,312 (531) 0 n/a 0 4,467 (1,808) ........................ n/a 3 (5) 117,313 (47,475) 211 (86) ........................ n/a 46 (73) 50,393 (20,393) 2,030 (821) 7+ (11+) 30 (48) 1,113 (450) 1,613 (653) n/a n/a 4,260 (1,724) 0 Cienega Creek Natural Preserve. Las Cienegas NCA 2. ........................ ........................ Cienega Creek 1. Removed * ..... ........................ Removed * ..... n/a n/a 45,020 (18,219) 0 ........................ n/a 7 (11) n/a 326 (132) ........................ ........................ n/a 7 (11) n/a 74 (30) ........................ ........................ n/a 2 (3) n/a 15 (6) ........................ Removed * 3 ... Empire Gulch and Empire Wildlife Pond. Gardner Canyon and Maternity Wildlife Pond. Unnamed Drainage and Gaucho Tank. ........................ 14 (23) 0 1,972 (798) 0 ........................ ........................ n/a 23 (36) 113,895 (46,092) 496 (201) ........................ ........................ Upper Santa Cruz River Subbasin. ........................ ........................ 0 n/a 3 (5) 2 (3) 0 0 224 (91) 13 (5) ........................ ........................ Sonoita Creek Cott Tank Drainage. Santa Cruz River. 14 (22) 7 (11) n/a 161 (65) 19:35 Apr 27, 2020 Jkt 250001 PO 00000 Frm 00014 Fmt 4701 Sfmt 4702 E:\FR\FM\28APP2.SGM 28APP2 23621 Federal Register / Vol. 85, No. 82 / Tuesday, April 28, 2020 / Proposed Rules TABLE 1a—CHANGES TO NORTHERN MEXICAN GARTERSNAKE PROPOSED CRITICAL HABITAT UNITS—Continued Previous subunit Previous unit New unit New subunit Length miles (kilometers) Previous ........................ ........................ ........................ ........................ ........................ ........................ ........................ ........................ ........................ ........................ ........................ Upper San Pedro River Subbasin. ........................ New n/a 42 (17) n/a 2 (3) n/a 25 (10) n/a n/a n/a 4 (7) n/a n/a n/a n/a n/a 31 (13) 0.7 (0.3) 0.1 (<0.1) 6 (9) 0 n/a 0 165 (266) 35 (57) 23,690 (9,587) 5,850 (2,367) 158 (255) 22 (35) 22,669 (9,174) 5,126 (2,074) ........................ San Pedro River. Removed * ..... 7 (11) 0 1,022 (414) 0 ........................ Incorporated 5 House Pond ... ........................ 0 45 (72) n/a n/a 0 14,334 (5,801) 0.6 (0.2) n/a Babocomari River. Turkey Creek AppletonWhittell Research Ranch. Canelo Hills Cienega Preserve. Post Canyon .. O’Donnell Canyon. ........................ ........................ 24 (24) 6 (10) 3,454 (1,398) 404 (164) ........................ ........................ Babocomari River. Removed * ..... Removed * 6 ... 12 (19) n/a 0 n/a 1,678 (679) 7,798 (3,156) 0 0 ........................ Removed * 6 ... n/a n/a 213 (86) 0 ........................ ........................ 6+ (9+) 3+ (5+) 3 (5) 4 (7) 795 (322) 398 (161) 77 (31) 239 (97) n/a 0.5 (0.7) n/a 3 (1) San Bernardino NWR. ........................ Removed * ..... Post Canyon .. O’Donnell Canyon. Unnamed Drainage and Finley Tank. ........................ n/a n/a 2,387 (966) 0 Totals ....... ........................ ........................ ........................ 932 (1,500) 241 (388) 421,423 (170,544) 27,784 (11,244) San Pedro River. Bear Canyon Creek. ........................ ........................ ........................ Unnamed Drainage and Pasture 9 Tank. Unnamed Drainage and Sheehy Spring. Scotia Canyon FS799 Tank ... Unnamed Wildlife Pond. Removed * (Parker Canyon). ........................ Previous 5 (7) Babocomari River Subbasin. jbell on DSKJLSW7X2PROD with PROPOSALS2 ........................ New n/a San Pedro River Subbasin. ........................ Area acres (hectares) Note: Numbers may not sum due to rounding. * ‘‘Removed ’’ means this unit or subunit, which was proposed as critical habitat for the northern Mexican gartersnake in the July 10, 2013, proposed rule (78 FR 41550), is not included in this revised proposed critical habitat designation. 1 Portions of Cienega Creek in the Cienega Creek Natural Preserve and Las Cienegas National Conservation Area are now included in Cienega Creek subunit. 2 All new named subunits in the Cienega Creek Subbasin unit were included in the July 10, 2013, proposed rule’s Las Cienegas National Conservation Area (NCA) subunit. 3 The gartersnake record was in Cott Tank Drainage not Redrock Canyon so is now captured in the Cott Tank Drainage subunit. 4 All new named subunits except for Sonoita Creek were included in the July 10, 2013, proposed rule’s Upper Santa Cruz River Subbasin unit. 5 The named subunits of the Babocomari River Subbasin unit in the July 10, 2013, proposed rule (78 FR 41550) are now incorporated into the Upper San Pedro River Subbasin unit. 6 Portions of these two subunits are now included in Post Canyon, O’Donnell Canyon, and Unnamed Drainage and Finley Tank subunits. VerDate Sep<11>2014 19:35 Apr 27, 2020 Jkt 250001 PO 00000 Frm 00015 Fmt 4701 Sfmt 4702 E:\FR\FM\28APP2.SGM 28APP2 23622 Federal Register / Vol. 85, No. 82 / Tuesday, April 28, 2020 / Proposed Rules TABLE 1b—CHANGES TO NARROW-HEADED GARTERSNAKE PROPOSED CRITICAL HABITAT UNITS Previous subunit Previous unit New unit Length miles (kilometers) New subunit Previous Upper Gila River Subbasin. ........................ Gila River ....... Turkey Creek West Fork Gila River. Little Creek .... Middle Fork Gila River. Iron Creek ...... Gillita Creek ... East Fork Gila River. Black Canyon Diamond Creek. ........................ Middle Gila River Subbasin. Gila River ....... Eagle Creek ... ........................ San Francisco River Subbasin. San Francisco River. Whitewater Creek. Saliz Creek .... Tularosa River n/a .................. South Fork Negrito Creek. ........................ Blue River ...... Campbell Blue Creek. Dry Blue Creek. ........................ jbell on DSKJLSW7X2PROD with PROPOSALS2 Upper Salt River Subbasin. Tonto Creek .... VerDate Sep<11>2014 Upper Gila River Subbasin. ........................ ........................ ........................ ........................ ........................ ........................ ........................ ........................ ........................ ........................ Removed * ..... ........................ Eagle Creek 1 San Francisco River Subbasin. ........................ ........................ ........................ ........................ ........................ ........................ Blue River Subbasin. ........................ ........................ ........................ Black River Subbasin. Area acres (hectares) New Previous ........................ 325 (526) 104 (167) 49,903 (20,195) 5,429 (2,197) Gila River ....... Removed * ..... West Fork Gila River. Little Creek .... Middle Fork Gila River. Iron Creek ...... Gillita Creek ... Removed * ..... 148 (239) ........................ 37 (60) 46 (74) 0 12 (19) 21,135 (8,553) 2,338 (946) 5,169 (2,092) 3,510 (1,420) 0 562 (228) ........................ 37 (60) 7 (11) 14 (23) 2,236 (905) 4,964 (2,009) 162 (65) 569 (230) 12 (20) 12 (20) 28 (44) 2 (3) 6 (10) 0 1,731 (701) 1,704 (690) 3,579 (1,148) 58 (23) 149 (60) 0 Black Canyon Diamond Creek. ........................ 26 (42) 25 (41) 10 (16) 6 (10) 3,503 (1,418) 3,545 (1,435) 251 (102) 169 (68) 63 (101) 0 8,814 (3,567) 0 Removed * ..... ........................ ........................ 3 (5) 60 (97) 301 (476) 0 7 (11) 129 (207) 432 (175) 8,382 (3,392) 45,075 (18,241) 0 336 (136) 4,905 (1,985) San Francisco River. Whitewater Creek. Saliz Creek .... Tularosa River Negrito Creek South Fork Negrito Creek. ........................ 163 (263) 71 (115) 23,178 (9,380) 3,120 (1,263) ........................ 9 (14) 2,289 (1,145) 208 (84) (13) (32) (21) (13) 1,099 (445) 4,728 (1,913) 0 1,483 (600) 218 (88) 829 (336) 337 (136) 192 (78) n/a 64 (103) n/a 2,971 (1,202) 53 (86) 22 (26) 52 (84) 7 (11) 7,432 (3,007) 3,008 (1,217) 2,504 (1,013) 361 (146) 9 (15) 4 (6) 1,320 (534) 106 (43) 352 (654) 51 (82) 58,014 (23,478) 1,607 (650) Blue River ...... Campbell Blue Creek. Dry Blue Creek. ........................ 8 (13) 35 (56) 0 11 (17) 8 20 13 8 Salt River ....... White River .... Carrizo Creek Cibecue Creek Diamond Creek. Black River .... n/a .................. ........................ ........................ ........................ ........................ ........................ Removed * Removed * Removed * Removed * Removed * ..... ..... ..... ..... ..... 86 (139) 18 (29) 64 (104) 48 (77) 22 (36) 0 0 0 ........................ 0 ........................ ........................ 114 (184) 0 n/a .................. ........................ n/a .................. ........................ n/a .................. n/a .................. ........................ ........................ Canyon Creek Canyon Creek 1. Tonto Creek ... ........................ ........................ ........................ Black River .... Bear Wallow Creek. North Fork Bear Wallow Creek. Reservation Creek. Fish Creek ..... East Fork Black River. ........................ ........................ Tonto Creek ... Houston Creek Haigler Creek ........................ Tonto Creek ... Houston Creek Haigler Creek 19:35 Apr 27, 2020 Jkt 250001 PO 00000 New Frm 00016 Fmt 4701 (5,211) (1,047) (1,229) (2,699) (1,261) 0 0 0 .............................. 0 23 (37) 6 (10) 16,384 (6,630) 0 763 (309) 174 (71) 0 2 (3) 0 61 (25) 0 5 (8) 0 132 (54) 0 0 4 (6) 12 (19) 0 0 107 (43) 370 (150) 53 (85) 8 (13) 7,346 (2,973) 232 (94) 91 (146) 54 (87) 15 (24) 22 (35) 41 (66) 28 (45) 1 (2) 12 (19) 12,795 (5,178) 7,712 (3,121) 2,046 (828) 3,037 (1,229) 1,390 (562) 1,078 (436) 18 (7) 294 (119) Sfmt 4702 E:\FR\FM\28APP2.SGM 12,877 2,588 9,033 6,669 3,117 28APP2 23623 Federal Register / Vol. 85, No. 82 / Tuesday, April 28, 2020 / Proposed Rules TABLE 1b—CHANGES TO NARROW-HEADED GARTERSNAKE PROPOSED CRITICAL HABITAT UNITS—Continued Previous subunit Previous unit New unit New subunit Length miles (kilometers) Previous Verde River ..... ........................ Verde River .... Oak Creek ..... West Fork Oak Creek. East Fork Verde River. Totals ....... Verde River Subbasin. ........................ ........................ ........................ ........................ Area acres (hectares) New Previous New ........................ 248 (400) 58 (93) 35,586 (14,401) 1,832 (741) 128 (205) 51 (83) 16 (26) 27 (43) 24 (39) 7 (11) 18,721 (7,576) 7,369 (2,982) 2,137 (865) 923 (374) 748 (303) 161 (65) ........................ Verde River .... Oak Creek ..... West Fork Oak Creek. Removed * ..... 53 (86) 0 7,360 (2,978) 0 ........................ ........................ 1,380 (2,221) 461 (742) 210,189 (85,060) 18,701 (7,568) Note: Numbers may not sum due to rounding. * ‘‘Removed’’ means this unit or subunit, which was proposed as critical habitat for the narrow-headed gartersnake in the July 10, 2013, proposed rule (78 FR 41550), is not included in this revised proposed critical habitat designation. 1 Eagle Creek and Canyon Creek were proposed as a critical habitat subunits for the narrow-headed gartersnake in the July 10, 2013, proposed rule (78 FR 41550), but are their own units in this revised proposed critical habitat designation. jbell on DSKJLSW7X2PROD with PROPOSALS2 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 we will designate as critical habitat from within the geographical area occupied by the species at the time of listing, we consider the physical or biological features that are essential to the conservation of the species and that may require special management considerations or protection. The regulations at 50 CFR 424.02 define ‘‘physical or biological features essential to the conservation of the species’’ as the features that occur in specific areas and that are essential to support the lifehistory needs of the species, including, but not limited to, water characteristics, soil type, geological features, sites, 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. For example, physical features essential to the conservation of the species 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 VerDate Sep<11>2014 19:35 Apr 27, 2020 Jkt 250001 may also be combinations of habitat characteristics and may encompass the relationship between characteristics or the necessary amount of a characteristic essential 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. Summary of Essential Physical or Biological Features We derive the specific PBFs essential to the conservation of northern Mexican and narrow-headed gartersnakes from studies of this species’ habitat, ecology, and life history as described above. Additional information can be found in the final listing rule published in the Federal Register on July 8, 2014 (79 FR 38678); the previous proposed critical habitat rule (78 FR 41550; July 10, 2013), as well as comments we received on previous proposed critical habitat rule; and information in this rule under Changes from Previously Proposed Critical Habitat, above. We have determined that the following PBFs are essential to the conservation of northern Mexican and narrow-headed gartersnakes. PO 00000 Frm 00017 Fmt 4701 Sfmt 4702 Northern Mexican Gartersnake 1. Perennial or spatially intermittent streams that provide both aquatic and terrestrial habitat that allows for immigration, emigration, and maintenance of population connectivity of northern Mexican gartersnakes and contain: (A) Slow-moving water (walking speed) with in-stream pools, off-channel pools, and backwater habitat; (B) Organic and natural inorganic structural features (e.g., boulders, dense aquatic and wetland vegetation, leaf litter, logs, and debris jams) within the stream channel for thermoregulation, shelter, foraging opportunities, and protection from predators; (C) Terrestrial habitat adjacent to the stream channel that includes riparian vegetation, small mammal burrows, boulder fields, rock crevices, and downed woody debris for thermoregulation, shelter, foraging opportunities, brumation, and protection from predators; and (D) Water quality that is absent of pollutants or, if pollutants are present, at levels low enough such that recruitment of northern Mexican gartersnakes is not inhibited. 2. Hydrologic processes that maintain aquatic and terrestrial habitat through: (A) A natural flow regime that allows for periodic flooding, or if flows are modified or regulated, a flow regime that allows for the movement of water, sediment, nutrients, and debris through the stream network; and (B) Physical hydrologic and geomorphic connection between a stream channel and its adjacent riparian areas. 3. Prey base of primarily native anurans, fishes, small mammals, lizards, and invertebrate species. E:\FR\FM\28APP2.SGM 28APP2 23624 Federal Register / Vol. 85, No. 82 / Tuesday, April 28, 2020 / Proposed Rules jbell on DSKJLSW7X2PROD with PROPOSALS2 4. An absence of nonnative fish species of the families Centrarchidae and Ictaluridae, bullfrogs (Lithobates catesbeianus), and/or crayfish (Orconectes virilis, Procambarus clarki, etc.), or occurrence of these nonnative species at low enough levels such that recruitment of northern Mexican gartersnakes is not inhibited and maintenance of viable prey populations is still occurring. 5. Elevations from 130 to 8,500 ft (40 to 2,590 m). 6. Lentic wetlands including offchannel springs, cienegas, and natural and constructed ponds (small earthen impoundment) with: (A) Organic and natural inorganic structural features (e.g., boulders, dense aquatic and wetland vegetation, leaf litter, logs, and debris jams) within the ordinary high water mark for thermoregulation, shelter, foraging opportunities, brumation, and protection from predators; (B) Riparian habitat adjacent to ordinary high water mark that includes riparian vegetation, small mammal burrows, boulder fields, rock crevices, and downed woody debris for thermoregulation, shelter, foraging opportunities, and protection from predators; and (C) Water quality that is absent of pollutants or, if pollutants are present, at levels low enough such that recruitment of northern Mexican gartersnakes is not inhibited. 7. Ephemeral channels that connect perennial or spatially intermittent perennial streams to lentic wetlands in southern Arizona where water resources are limited. Narrow-Headed Gartersnake 1. Perennial streams or spatially intermittent streams that provide both aquatic and terrestrial habitat that allows for immigration, emigration, and maintenance of population connectivity of narrow-headed gartersnakes and contain: (A) Pools, riffles, and cobble and boulder substrate, with low amount of fine sediment and substrate embeddedness; (B) Organic and natural inorganic structural features (e.g., cobble bars, rock piles, large boulders, logs or stumps, aquatic and wetland vegetation, logs, and debris jams) in the stream channel for basking, thermoregulation, shelter, prey base maintenance, and protection from predators; (C) Water quality that is absent of pollutants or, if pollutants are present, at levels low enough such that recruitment of narrow-headed gartersnakes is not inhibited; and VerDate Sep<11>2014 19:35 Apr 27, 2020 Jkt 250001 (D) Terrestrial habitat within 89 ft (27 m) of the active stream channel that includes boulder fields, rocks, and rock structures containing cracks and crevices, small mammal burrows, downed woody debris, and vegetation for thermoregulation, shelter sites, and protection from predators. 2. Hydrologic processes that maintain aquatic and riparian habitat through: (A) A natural flow regime that allows for periodic flooding, or if flows are modified or regulated, a flow regime that allows for the movement of water, sediment, nutrients, and debris through the stream network, as well as maintenance of native fish populations; and (B) Physical hydrologic and geomorphic connection between the active stream channel and its adjacent terrestrial areas. 3. Prey base of native fishes, or softrayed, nonnative fish species. 4. An absence of nonnative predators, such as fish species of the families Centrarchidae and Ictaluridae, bullfrogs, and crayfish, or occurrence of nonnative predators at low enough densities such that recruitment of narrow-headed gartersnakes is not inhibited and maintenance of viable prey populations is still occurring. 5. Elevations of 2,300 to 8,200 ft (700 to 2,500 m). 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. In this revised proposed critical habitat rule, we are not changing any of the special management considerations for either gartersnake species’ proposed critical habitat. 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 PO 00000 Frm 00018 Fmt 4701 Sfmt 4702 proposing to designate critical habitat for both gartersnake species in areas considered currently occupied. We are not currently proposing to designate any areas outside the geographical area occupied by the species because we have not identified any unoccupied areas that meet the definition of critical habitat. We are not aware of any other areas within the historical range of the species that maintain perennial water, have suitable prey, and support an aquatic community that is not dominated by nonnative predators. Therefore, although there may be a future need to expand the area occupied by one or both gartersnake species to reach recovery, there are no unoccupied areas that are currently essential to the species conservation and that should be designated as critical habitat. To identify areas proposed for critical habitat for the northern Mexican and narrow-headed gartersnakes, we used a variety of sources for species data including riparian species survey reports, museum records, heritage data from State wildlife agencies, peerreviewed literature, agency reports, and interviews with species experts. Holycross et al. (in press, entire) was a key source of information for vouchered historical and current records of both gartersnake species across their respective ranges. Other sources for current records of the northern Mexican gartersnake included Cotten et al. (2014, entire), Holycross et al. (2006, entire), and Rosen et al. (2001, entire). Christman and Jennings (2017, entire), Hellekson (2012), Jennings et al. (2017, entire), Jennings and Christman (2019, entire), and Jennings et al. (2018) were important sources of information pertaining to narrow-headed gartersnake status in New Mexico. In addition to reviewing gartersnake-specific survey reports, we also focused on survey reports and heritage data from State wildlife agencies for fish and amphibians as they captured important data on the existing community ecology that affects the status of these gartersnakes within their ranges. In addition to species data sources, we used publicly available geospatial datasets depicting water bodies, stream flow, vegetation type, and elevation to identify areas proposed for critical habitat. The maps define the critical habitat designation, as modified by any accompanying regulatory text, presented at the end of this document under Proposed Regulation Promulgation. We include more detailed information on the proposed boundaries of the critical habitat designation in the preamble of this document. We will make the E:\FR\FM\28APP2.SGM 28APP2 Federal Register / Vol. 85, No. 82 / Tuesday, April 28, 2020 / Proposed Rules coordinates or plot points or both on which each map is based available to the public on https:// www.regulations.gov at Docket No. FWS–R2–ES–2020–0011, 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). jbell on DSKJLSW7X2PROD with PROPOSALS2 Areas Occupied at the Time of Listing We are proposing for designation of critical habitat lands that we have determined were occupied at the time of listing and contain one or more of the physical or biological features to support life-history processes essential to the conservation of the species. As explained under Occupancy Records, above, this proposed critical habitat designation does not include all streams known to have been occupied by the species historically or the entire stream known to have been occupied by the species historically. Instead, it focuses on occupied streams or stream reaches within the historical range with positive survey records from 1998 to 2019 that have retained the necessary PBFs that will allow for the maintenance and expansion of existing populations. In summary, for areas within the geographic area occupied by the species at the time of listing, we delineated critical habitat unit boundaries using the following criteria: Northern Mexican Gartersnake 1. We mapped records of observations of northern Mexican gartersnake from 1998 to 2019. We then examined these areas to determine if northern Mexican gartersnake could still occur in them, as described below. 2. We identified streams in which northern Mexican gartersnakes were found since 1980 (used flowline layer in the USGS National Hydrography Dataset to represent stream centerlines). 3. We identified and removed upstream and downstream ends of streams that were below 130 ft or above 8,500 ft elevation using USGS National Elevation Dataset. 4. We identified perennial, intermittent, and ephemeral reaches of streams. We removed end reaches of streams that are ephemeral based on FCode attribute of the flowline layer in the USGS National Hydrography Dataset or information from peer review and public comments. We identified native prey species along each stream using geospatial datasets, literature, peer review, and public comments. 5. We identified prey species along each stream using geospatial datasets, literature, peer review, and public VerDate Sep<11>2014 19:35 Apr 27, 2020 Jkt 250001 comments. We removed stream reaches that were documented to not contain prey species. 6. We identified and removed stream reaches with an abundance of nonnative predators including fish, crayfish, or bullfrogs. (We used a combination of factors to determine nonnative presence and impact to the species. This evaluation included records from 1980 by looking at subsequent negative survey data for northern Mexican gartersnakes along with how the nonnative predator community had changed since those gartersnakes were found, in addition to the habitat condition and complexity. Most of the areas surveyed in the 1980s that had been re-surveyed with negative results for gartersnakes had significant changes to the nonnative predator community, which also decreased prey availability for the gartersnakes. These areas were removed from revised proposed critical habitat.) 7. We identified and removed stream reaches where stocking or management of predatory sportfish is a priority and is conducted on a regular basis. 8. We identified and included those stream reaches on private land without public access that lack survey data but that have positive survey records from 1998 forward both upstream and downstream of the private land and have stream reaches with PBFs 1 and 2. 9. We used a surrogate species to determine potential neonate dispersal along a stream, which is 2.2 miles (3.5 km). We then identified the most upstream and downstream records of northern Mexican gartersnake along each continuous stream reach determined by criteria 1 through 8, above, and extended the stream reach to include this dispersal distance. 10. After identifying the stream reaches that met the above parameters, we then connected those reaches between that have the PBFs. We consider these areas between survey records occupied because the species occurs upstream and downstream and multiple PBFs are present that allow the species to move through these stream reaches. 11. We identified the springs, cienegas, and natural or constructed ponds (livestock tanks) in which records of observations of the species from 1998 to 2019 were found and included them in this revised proposed critical habitat. 12. We identified ephemeral reaches of occupied perennial or intermittent streams that serve as corridors between springs, cienegas, and natural or constructed ponds (livestock tanks). 13. We identified and included the wetland and riparian area adjacent to PO 00000 Frm 00019 Fmt 4701 Sfmt 4702 23625 streams, springs, cienegas, and ponds to capture the wetland and riparian habitat needed by the species for thermoregulation, foraging, and protection from predators. We used the wetland and riparian layers of the Service’s National Wetlands Inventory dataset and aerial photography in Google Earth Pro to identify these areas. Narrow-headed Gartersnake 1. We mapped records of narrowheaded gartersnake from 1998 to 2019. We then examined these areas to determine if narrow-headed gartersnake could still occur here, as described below. 2. We identified the streams in which narrow-headed gartersnakes were found since 1998 (used flowline layer in the USGS National Hydrography Dataset to represent stream centerlines). 3. We identified and removed upstream and downstream ends of streams that were below 2,300 ft or above 8,200 ft in elevation using USGS National Elevation Dataset. 4. We identified perennial, intermittent, and ephemeral reaches of streams. We removed end reaches of streams that are ephemeral or intermittent based on FCode attribute of the flowline layer in the USGS National Hydrography Dataset or information from peer review and public comments. 5. We identified native and nonnative prey species along each stream using geospatial datasets, literature, peer review, and public comments. We removed stream reaches that did not have prey species. 6. We identified and removed stream reaches with an abundance of nonnative predators including fish, crayfish, and bullfrogs. (We examined a combination of factors to determine nonnative presence and impact to the species. This included evaluating gartersnake records from 1998 by looking at subsequent negative survey data for narrow-headed gartersnakes along with how the nonnative predator community had changed since those gartersnakes were found, in addition to the habitat condition and complexity. Most of the areas surveyed in the 1980s that had been re-surveyed with negative results for gartersnakes had significant changes to the nonnative predator community, which also decreased prey availability for the gartersnakes. These areas were removed from revised proposed critical habitat.) 7. We identified and removed stream reaches where stocking or management of predatory sportfish is a priority and is conducted on a regular basis. 8. We identified and included those stream reaches on private land without E:\FR\FM\28APP2.SGM 28APP2 23626 Federal Register / Vol. 85, No. 82 / Tuesday, April 28, 2020 / Proposed Rules public access that lack survey data but that have positive narrow-headed gartersnake survey records from 1998 forward both upstream and downstream of the private land and have stream reaches with PBFs 1 and 2. 9. We used a surrogate species to determine potential neonate dispersal along a stream, which is 2.2 mi (3.5 km). We then identified the most upstream and downstream records of narrowheaded gartersnake along each continuous stream reach determined by criteria 1 through 8, above, and extended the reach to include this dispersal distance. 10. After identifying the stream reaches that met the above parameters, we then connected those reaches between that had the PBFs. We consider these areas between survey records occupied because the species occurs upstream and downstream and multiple PBFs are present that allow the species to move through these stream reaches. 11. We identified the average distance narrow-headed gartersnakes moved laterally from the water’s edge in streams, which is 89 ft (27 m), to capture the wetland and terrestrial habitat needed by the species for thermoregulation and protection from predators. We used the wetland layer of the Service’s National Wetlands Inventory dataset and aerial photography in Google Earth Pro to identify the water’s edge in streams. 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 northern Mexican and narrowheaded gartersnakes. However, constructed fish barriers in streams within the proposed designated critical habitat are part of the designation and are needed to manage the exclusion of nonnative species. The scale of the maps we prepared under the parameters for publication within the Code of Federal Regulations may not reflect the exclusion of such developed lands. Any such lands inadvertently left inside critical habitat boundaries shown on the maps of this proposed rule have been excluded by text in the proposed rule and are not proposed for designation as critical habitat. Therefore, if the critical habitat is finalized as proposed, a Federal action involving these lands would not trigger section 7 consultation with respect to critical habitat and the requirement of no adverse modification unless the specific action would affect the physical or biological features in the adjacent critical habitat. We are proposing for designation of critical habitat lands that we have determined were occupied at the time of listing and contain one or more of the physical or biological features that are essential to support life-history processes of the species. Proposed Critical Habitat Designation Northern Mexican Gartersnake We are proposing 241 stream mi (388 km) within the identified wetland and riparian habitat needed for basking, cover, and foraging, totaling 27,784 ac (11,244 ha) in nine units as the revised proposed critical habitat for northern Mexican gartersnake. Land ownership within proposed critical habitat for the northern Mexican gartersnake in acres is broken down as follows: Federal (62 percent), State (Arizona and New Mexico) (5 percent), Tribal (0.3 percent), and private (32 percent) (see table 2a, below). The critical habitat areas we describe below constitute our current best assessment of areas that meet the definition of critical habitat for northern Mexican gartersnake. We consider all units occupied at the time of listing, and all units contain essential PBFs that may require special management considerations or protection. TABLE 2a—LAND OWNERSHIP AND SIZE OF NORTHERN MEXICAN GARTERSNAKE PROPOSED CRITICAL HABITAT UNITS [Area estimates reflect all land within critical habitat unit boundaries. County-owned lands are considered as private lands.] Unit Land ownership by type acres (hectares) Subunit Federal jbell on DSKJLSW7X2PROD with PROPOSALS2 1. Upper Gila River Subbasin. State Tribal Private Total size acres (hectares) Gila River ........................... ........................ 22 (9) ........................ 1,006 (407) 1,028 (416) Duck Creek ........................ ........................ ........................ ........................ 104 (42) 104 (42) Unit Total ..................... 2. Tonto Creek .................... ............................................. ............................................. ........................ 3,337 (1,350) 22 (9) ........................ ........................ ........................ 1,110 (449) 966 (391) 1,132 (458) 4,302 (1,741) Unit Total ..................... 3. Verde River Subbasin ..... ............................................. Verde River ........................ Oak Creek .......................... Spring Creek ...................... 3,337 (1,350) 646 (261) 193 (78) 17 (7) ........................ 570 (231) 134 (54) 1 (<1) ........................ 88 (36) ........................ ........................ 966 (391) 2,829 (1,145) 687 (278) 80 (32) 4,302 (1,741) 4,133 (1,672) 1,014 (410) 99 (40) Unit Total ..................... 4. Bill Williams River Subbasin. ............................................. Bill Williams River ............... 856 (346) 1,002 (405) 705 (285) 202 (82) 88 (36) ........................ 3,597 (1,456) 601 (243) 5,246 (2,123) 1,805 (730) Big Sandy River ................. Santa Maria River .............. 339 (137) 780 (316) ........................ ........................ ........................ ........................ 593 (240) 532 (215) 932 (377) 1,312 (531) Unit Total ..................... 5. Lower Colorado River ..... ............................................. ............................................. 2,121 (858) 4,467 (1,808) 202 (82) ........................ ........................ ........................ 1,727 (699) ........................ 4,049 (1,639) 4,467 (1,808) Unit Total ..................... 6. Arivaca Cienega ............. ............................................. ............................................. 4,467 (1,808) 149 (60) ........................ 1 (<1) ........................ ........................ ........................ 62 (25) 4,467 (1,808) 211 (86) Unit Total ..................... 7. Cienega Creek Subbasin ............................................. Cienega Creek ................... Empire Gulch and Empire Wildlife Pond. 149 (60) 755 (306) 268 (109) 1 (<1) 308 (125) 57 (23) ........................ ........................ ........................ 62 (25) 550 (222) ........................ 211 (86) 1,613 (653) 326 (132) VerDate Sep<11>2014 19:35 Apr 27, 2020 Jkt 250001 PO 00000 Frm 00020 Fmt 4701 Sfmt 4702 E:\FR\FM\28APP2.SGM 28APP2 23627 Federal Register / Vol. 85, No. 82 / Tuesday, April 28, 2020 / Proposed Rules TABLE 2a—LAND OWNERSHIP AND SIZE OF NORTHERN MEXICAN GARTERSNAKE PROPOSED CRITICAL HABITAT UNITS— Continued [Area estimates reflect all land within critical habitat unit boundaries. County-owned lands are considered as private lands.] Unit Land ownership by type acres (hectares) Subunit Federal State Tribal Private 74 (30) ........................ ........................ ........................ 74 (30) 15 (6) ........................ ........................ ........................ 15 (6) ............................................. Sonoita Creek .................... 1,112 (451) ........................ 366 (148) ........................ ........................ ........................ 550 (222) 224 (91) 2,030 (821) 224 (91) Cott Tank Drainage ............ Santa Cruz River ................ Unnamed Drainage and Pasture 9 Tank. Unnamed Drainage and Sheehy Spring. Scotia Canyon .................... FS799 Tank ........................ Unnamed Wildlife Pond ...... ............................................. San Pedro River ................. 13 (5) ........................ ........................ ........................ 70 (28) 36 (15) ........................ ........................ ........................ ........................ 91 (37) 5 (2) 13 (5) 161 (65) 42 (17) ........................ 5 (2) ........................ 20 (8) 25 (10) 31 (13) 0.7 (0.3) ........................ 45 (18) 4,911 (1,988) ........................ ........................ ........................ 111 (45) ........................ ........................ ........................ ........................ ........................ ........................ ........................ ........................ 0.1 (<0.1) 340 (138) 215 (87) 31 (13) 0.7 (0.3) 0.1 (<0.1) 496 (201) 5,126 (2,074) Babocomari River ............... O’Donnell Canyon .............. Post Canyon ....................... Unnamed Drainage and Finley Tank. House Pond ....................... 197 (80) 58 (24) 30 (12) ........................ 8 (3) ........................ ........................ ........................ ........................ ........................ ........................ ........................ 199 (81) 181 (73) 47 (19) 3 (1) 404 (164) 239 (97) 77 (31) 3 (1) 0.6 (0.2) ........................ ........................ ........................ 0.6 (0.2) ............................................. ............................................. 5,197 (2,103) 17,284 (6,995) 8 (3) 1,414 (572) ........................ 88 (36) 645 (261) 8,996 (3,640) 5,850 (2,367) 27,784 (11,244) Gardner Canyon and Maternity Wildlife Pond. Unnamed Drainage and Gaucho Tank. Unit Total ..................... 8. Upper Santa Cruz River Subbasin. Unit Total ..................... 9. Upper San Pedro River Subbasin. Unit Total ............................. Grand Total .................. Total size acres (hectares) Note: Area sizes may not sum due to rounding. jbell on DSKJLSW7X2PROD with PROPOSALS2 We present brief descriptions of all units, and reasons why they meet the definition of critical habitat for northern Mexican gartersnake, below. Upper Gila River Subbasin Unit The Upper Gila River Subbasin Unit is located in southwestern New Mexico southeast of the towns of Cliff and Gila, in Grant County. This unit consists of 1,132 ac (458 ha) along 13 stream mi (21 km) in two subunits with 9 stream mi (14 km) along the Gila River and 4 stream mi (6 km) along Duck Creek. The New Mexico Department of Game and Fish, New Mexico State land department, and private entities manage lands within this unit. Several reaches of the Gila River have been adversely affected by channelization and diversions, which have reduced or eliminated base flow. As a whole, this unit contains PBFs 1, 2, and 5, but PBFs 3 and 4 are in degraded condition. PBFs 6 and 7 do not apply to this unit. The physical or biological features in this unit may require special management consideration due to competition with, and predation by, nonnative species that are present in this unit; water VerDate Sep<11>2014 19:35 Apr 27, 2020 Jkt 250001 diversions; channelization; potential for high-intensity wildfires; and human development of areas adjacent to proposed critical habitat. Lands owned by Freeport McMoRan in the Upper Gila River Subbasin Unit on the Gila River and Duck Creek are being considered for exclusion from the final rule for critical habitat under section 4(b)(2) of the Act. A total of 515 ac (208 ha), or 45 percent, of this unit are being considered for exclusion (see Application of Section 4(b)(2) of the Act, below). Tonto Creek Unit The Tonto Creek Unit is generally located near the towns of Gisela and Punkin Center, Arizona, in Gila County. This unit consists of 4,302 ac (1,741 ha) of critical habitat along 32 stream mi (52 km) of Tonto Creek. The downstream end of critical habitat is the spillway elevation of Theodore Roosevelt Lake (2,120 ft (646 m)) near the confluence with Bumblebee Creek. The Tonto National Forest is the primary land manager in this unit, with additional lands privately owned. Some reaches along Tonto Creek experience seasonal PO 00000 Frm 00021 Fmt 4701 Sfmt 4702 drying because of regional groundwater pumping, while others are affected by diversions. Development along private reaches of Tonto Creek may also affect terrestrial characteristics of northern Mexican gartersnake habitat. Mercury has been detected in fish samples within Tonto Creek, and further research is necessary to determine if mercury is bioaccumulating in the resident food chain. Theodore Roosevelt Lake is a nonnative sport fishery and supports predators of the northern Mexican gartersnake, so that the northern Mexican gartersnake may be subject to higher mortality from predation by nonnative fish at the downstream end of this unit, especially when the lake level is at spillway elevation. In general, this unit contains PBFs 1, 2, 3, and 5, but PBF 4 is in degraded condition. PBFs 6 and 7 do not apply to this unit. The physical or biological features in this unit may require special management consideration due to competition with, and predation by, nonnative species that are present in this unit; water diversions causing loss of base flow; flood-control E:\FR\FM\28APP2.SGM 28APP2 23628 Federal Register / Vol. 85, No. 82 / Tuesday, April 28, 2020 / Proposed Rules jbell on DSKJLSW7X2PROD with PROPOSALS2 projects; and development of areas adjacent to or within proposed critical habitat. Verde River Subbasin Unit The Verde River Subbasin Unit is generally located near the towns of Cottonwood, Cornville, and Camp Verde, Arizona, in Yavapai County. This unit consists of 5,246 ac (2,123 ha) along 61 stream mi (98 km) in three subunits: 35 stream mi (56 km) of the Verde River, including Tavasci Marsh and Peck Lake; 23 stream mi (37 km) of Oak Creek; and 4 stream mi (6 km) of Spring Creek. The Verde River Subbasin Unit occurs on lands managed by the U.S. Forest Service on Coconino and Prescott National Forests; National Park Service (NPS) at Tuzigoot National Monument; Arizona Game and Fish Department at Bubbling Ponds and Page Springs fish hatcheries; Arizona State Parks at Deadhorse Ranch and Verde River Greenway State Natural Area; Arizona State Trust; Yavapai-Apache Nation; and private entities. Crayfish, bullfrogs, and nonnative, spiny-rayed fish are present in some of this unit. Proposed groundwater pumping of the Big Chino Aquifer may adversely affect future base flow in the Verde River. Development along the Verde River has eliminated habitat along portions of the Verde River through the Verde Valley. As a whole, this unit contains PBFs 1, 2, 3, and 5, but PBF 4 is in degraded condition. The physical or biological features in this unit may require special management consideration due to competition with, and predation by, nonnative species that are present in this unit; water diversions; existing and proposed groundwater pumping potentially resulting in drying of habitat; potential for high-intensity wildfires; and human development of areas adjacent to proposed critical habitat. Lands in the Verde River Subunit include The Nature Conservancy’s Verde Springs Preserve, Verde Valley property, Yavapai-Apache Nation, and Salt River Project’s Camp Verde Riparian Preserve. Lands owned by the Yavapai-Apache Nation, and lands within Salt River Project’s Camp Verde Riparian Preserve are being considered for exclusion from the final rule for critical habitat under section 4(b)(2) of the Act. Lands in Oak Creek Subunit include Arizona Game and Fish Department’s (AGFD) Bubbling Ponds and Page Springs fish hatcheries, which are also being considered for exclusion from the final rule for critical habitat. A total of 460 ac (186 ha), or 9 percent, of this unit are being considered for exclusion (see Application of Section 4(b)(2) of the Act, below). VerDate Sep<11>2014 19:35 Apr 27, 2020 Jkt 250001 Bill Williams River Subbasin Unit The Bill Williams River Subbbasin Unit is generally located in western Arizona, northeast of Parker, Arizona, in La Paz and Mohave Counties. This unit consists of 4,049 ac (1,639 ha) along 29 stream mi (46 km) in three subunits: 15 stream mi (24 km) of Bill Williams River; 8 stream mi (13 km) of Big Sandy River; and 5 stream mi (9 km) of Santa Maria River. The Bill Williams River Subbasin Unit occurs on lands managed by the Bureau of Land Management (BLM) within the Rawhide Mountains Wilderness, Swansea Wilderness, and Three Rivers Riparian Area of Critical Environmental Concern (ACEC); Arizona State Parks at Alamo Lake State Park; Arizona State Land Department; and private landowners. This unit contains lowland leopard frogs and native fish appear to be largely absent, although longfin dace have been detected in the Santa Maria River Subunit. As a whole, this unit contains PBFs 1, 2, 3, and 5, but PBF 4 is in degraded condition. PBFs 6 and 7 do not apply to this unit. Crayfish and several species of nonnative, spinyrayed fish maintain populations in reaches of the three rivers included in the Bill Williams River Subbasin Unit. The physical or biological features in this unit may require special management consideration due to competition with, and predation by, nonnative species that are present in this unit and flood-control projects. Lands within the AGFD’s Planet Ranch Conservation and Wildlife Area property in the Bill Williams River Subunit are being considered for exclusion from the final rule for critical habitat under section 4(b)(2) of the Act. A total of 329 ac (133 ha), or 8 percent, of this unit are being considered for exclusion (see Application of Section 4(b)(2) of the Act, below). Lower Colorado River Unit The Colorado River Unit is generally located in western Arizona in Mojave County. This unit consist of 4,467 ac (1,808 ha) within the floodplain of the Colorado River but does not include the main channelized portion of the river. This unit falls completely within the Service’s Havasu National Wildlife Refuge. Several species of nonnative, spiny-rayed fish maintain robust populations in this unit. In general, this unit contains PBFs 1, 2, and 5, but PBFs 3 and 4 are in degraded condition. PBFs 6 and 7 do not apply to this unit. The physical or biological features in this unit may require special management consideration due to competition with, and predation by, nonnative species that PO 00000 Frm 00022 Fmt 4701 Sfmt 4702 are present in this unit and floodcontrol projects. No areas within this unit are considered for exclusion. Arivaca Cienega Unit The Arivaca Cienega Unit is generally located in southern Arizona, in and around the town of Arivaca in Pima County, Arizona. This unit consists of 211 ac (86 ha), along 3 stream mi (5 km) of Arivaca Creek within Arivaca Cienega. This unit occurs on lands managed by the Service at Buenos Aires National Wildlife Refuge, Arizona State Land Department, and private landowners. Drought, bullfrogs, and crayfish are a concern in the Arivaca Cienega Unit. In general, this unit contains PBFs 2 and 5, but PBFs 1, 3, and 4 are in degraded condition. PBFs 6 and 7 do not apply to this unit. The physical or biological features in this unit may require special management consideration due to loss of perennial flow, as well as competition with, and predation by, nonnative species that are present in this unit. No areas within this unit are considered for exclusion. Cienega Creek Subbasin Unit The Cienega Creek Subbasin Unit is generally located in southern Arizona southeast of the city of Tucson and town of Vail, north of the town of Sonoita, west of the Rincon Mountains, and east of the Santa Rita Mountains in Pima County. This unit consists of 2,030 ac (821 ha) along 46 stream mi (73 km) in four subunits: 30 stream mi (48 km) of Cienega Creek; 7 stream mi (11 km) of Empire Gulch, including Empire Wildlife Pond; 2 stream mi (3 km) of an unnamed drainage to Gaucho Pond, including Gaucho Pond; and 7 stream mi (11 km) of Gardner Canyon, including Maternity Wildlife Pond. The unnamed drainage to Gaucho Pond is an ephemeral channel that may serve as a movement corridor for northern Mexican gartersnakes. The Cienega Creek Subbasin Unit occurs on lands managed by BLM on Las Cienegas National Conservation Area (NCA), Arizona State Land Department, Pima County on Cienega Creek Preserve, and private landowners. Recent, ongoing bullfrog eradication on and around Las Cienegas NCA has reduced the threat of bullfrogs in much of this unit. As a whole, this unit contains PBFs 1, 2, 3, 5, 6, and 7, but PBF 4 is in degraded condition. Special management may be required to maintain or develop the physical or biological features, including continuing to promote the recovery or expansion of native leopard frogs and fish, continuing bullfrog management, and eliminating or E:\FR\FM\28APP2.SGM 28APP2 23629 Federal Register / Vol. 85, No. 82 / Tuesday, April 28, 2020 / Proposed Rules reducing other predatory nonnative species. Lands within Pima County’s Cienega Creek Natural Preserve in the Cienega Creek Subunit are being considered for exclusion from the final rule for critical habitat under section 4(b)(2) of the Act. A total of 543 ac (220 ha), or 27 percent, of this unit are being considered for exclusion (see Application of Section 4(b)(2) of the Act, below). However, Pima County has requested that these lands not be excluded from the final rule. Upper Santa Cruz River Subbasin Unit The Santa Cruz River Subbasin Unit is generally located in southern Arizona, south of the town of Sonoita and within the town of Patagonia, southeast of the Santa Rita Mountains, and west of the Patagonia Mountains in Santa Cruz and Cochise Counties. This unit consists of 496 ac (201 ha) along 23 stream mi (36 km) in eight subunits: FS 799 Tank; an unnamed wildlife pond; 3 stream mi (5 km) of Sonoita Creek; 4 stream mi (7 km) of Scotia Canyon; 2 stream mi (3 km) of Cott Tank Drainage; 7 stream mi (11 km) of Santa Cruz River; 5 stream mi (7 km) of an unnamed drainage to Pasture 9 Tank, including Pasture 9 Tank; and 2 stream mi (3 km) of an unnamed drainage to Sheehy Spring, including Sheehy Spring. The latter two unnamed drainages are ephemeral channels that may serve as movement corridors for northern Mexican gartersnakes. The Upper Santa Cruz River Subbasin Unit occurs on lands managed by Coronado National Forest, Arizona State Parks at San Rafael State Natural Area, Arizona State Land Department, and private landowners (including The Nature Conservancy at Patagonia-Sonoita Creek Preserve and San Rafael Cattle Company at San Rafael Ranch). Native fish, bullfrogs, Sonoran tiger salamanders, and Chiricahua leopard frogs provide prey for northern Mexican gartersnakes in the Santa Cruz River Subbasin Unit. Bullfrogs and nonnative spiny-ray fish remain an issue in this unit. As a whole, this unit contains PBFs 1, 2, 3, 5, 6, and 7, but PBF 4 is in degraded condition. Special management may be required to maintain or develop the physical or biological features, including continuing to promote the recovery or expansion of native leopard frogs and fish, and eliminating or reducing predatory nonnative species. Lands within the San Rafael Cattle Company’s San Rafael Ranch in the Santa Cruz River Subunit, Unnamed Drainage and Pasture 9 Tank Subunit, and Unnamed Drainage and Sheehy Spring Subunit are being considered for exclusion from the final rule for critical habitat under section 4(b)(2) of the Act. Lands within The Nature Conservancy’s Patagonia-Sonoita Creek Preserve in the Sonoita Creek Subunit, as well as the Unnamed Wildlife Pond Subunit, which are both on private lands, are also being considered for exclusion. A total of 238 ac (96 ha), or 48 percent, of this unit are being considered for exclusion (see Application of Section 4(b)(2) of the Act, below). Upper San Pedro River Subbasin Unit The Upper San Pedro River Subbasin Unit is generally located in southeastern Arizona, east and west of Sierra Vista and south of the town of Elgin, in Cochise and Santa Cruz Counties. This unit consists of 5,850 ac (2,367 ha) in six subunits along 35 stream mi (57 km): 22 stream mi (35 km) of the San Pedro River; 6 stream mi (10 km) of the Babocomari River; 4 stream mi (7 km) in O’Donnell Canyon; 3 stream mi (5 km) in Post Canyon; 0.5 stream mi (0.7 km) in an ephemeral drainage to Finley Tank, including Finley Tank; and House Pond. The Upper San Pedro River Subbasin Unit occurs primarily on lands managed by BLM on the San Pedro River Riparian and Las Cienegas NCAs, and also includes lands managed by the U.S. Forest Service on Coronado National Forest, Arizona State Land Department, and private entities. The unit includes portions of the Canelo Hills Preserve owned by The Nature Conservancy and portions of the Appleton-Whittell Research Ranch managed by several private and Federal landowners. Native fish and leopard frogs occur in House Pond and O’Donnell Canyon subunits and provide a prey base for northern Mexican gartersnakes. Crayfish, bullfrogs, and nonnative, spiny-rayed fish occur in the San Pedro River and Babocomari subunits and are an ongoing threat to northern Mexican gartersnakes. As a whole, this unit contains PBFs 1, 2, 5, 6, and 7, but PBFs 3 and 4 are in degraded condition. The physical or biological features in Upper San Pedro River Subbasin Unit may require special management consideration due to competition with, and predation by, predatory nonnative species that are present in this unit. Lands owned by The Nature Conservancy at Canelo Hills Preserve and lands owned by the National Audubon Society at Appleton-Whittell Research Ranch in the O’Donnell Canyon Subunit are being considered for exclusion from the final rule for critical habitat. In addition, Fort Huachuca has requested the Service to consider for exclusion based on national security lands managed by BLM, Arizona State Land Department, and private entities within the San Pedro River and Babocomari River subunits. A total of 5,320 ac (2,152 ha), or 91 percent, of this unit are being considered for exclusion (see Application of Section 4(b)(2) of the Act, below). Narrow-Headed Gartersnake We are proposing 461 stream mi (742 km) within a 89-ft (27-m) lateral extent of the active stream channel, totaling 18,701 ac (7,568 ha) comprising 8 units as critical habitat for the narrow-headed gartersnake in Greenlee, Graham, Apache, Yavapai, Gila, and Coconino Counties in Arizona, as well as in Grant, Hidalgo, and Catron Counties in New Mexico. Land ownership within proposed critical habitat for the narrowheaded gartersnake is broken down as follows: Federal (66 percent), State (Arizona and New Mexico) (2 percent), Tribal (3 percent), and private (29 percent) (see table 2b, below). The critical habitat areas we describe below constitute our current best assessment of areas that meet the definition of critical habitat for narrow-headed gartersnake. We consider all units occupied at the time of listing, and all units contain essential PBFs that may require special management considerations or protection. jbell on DSKJLSW7X2PROD with PROPOSALS2 TABLE 2b—LAND OWNERSHIP AND SIZE OF NARROW-HEADED GARTERSNAKE PROPOSED CRITICAL HABITAT UNITS [Area estimates reflect all land within critical habitat unit boundaries. County-owned lands are considered as private lands.] Unit Land ownership by type acres (hectares) Subunit Federal 1. Upper Gila River Subbasin. VerDate Sep<11>2014 20:02 Apr 27, 2020 Gila River ........................... Jkt 250001 PO 00000 Frm 00023 State 1,123 (455) Fmt 4701 Sfmt 4702 119 (48) Tribal ........................ E:\FR\FM\28APP2.SGM 28APP2 Size of unit Private 2,267 (917) 3,510 (1,420) 23630 Federal Register / Vol. 85, No. 82 / Tuesday, April 28, 2020 / Proposed Rules TABLE 2b—LAND OWNERSHIP AND SIZE OF NARROW-HEADED GARTERSNAKE PROPOSED CRITICAL HABITAT UNITS— Continued [Area estimates reflect all land within critical habitat unit boundaries. County-owned lands are considered as private lands.] Unit Land ownership by type acres (hectares) Subunit Federal Size of unit State Tribal Private West Fork Gila River .......... Little Creek ......................... Middle Fork Gila River ....... Iron Creek .......................... Gilita Creek ........................ Black Canyon ..................... Diamond Creek .................. 358 (145) 157 (64) 569 (230) 58 (23) 149 (60) 245 (99) 169 (68) 154 (62) 5 (2) ........................ ........................ ........................ ........................ ........................ ........................ ........................ ........................ ........................ ........................ ........................ ........................ 51 (20) ........................ ........................ ........................ ........................ 6 (2) ........................ 562 (228) 162 (65) 569 (230) 58 (23) 149 (60) 251 (102) 169 (68) ............................................. San Francisco River ........... 2,827 (1,144) 1,679 (680) 278 (113) ........................ ........................ ........................ 2,323 (940) 1,441 (583) 5,429 (2,197) 3,121 (1,263) Whitewater Creek ............... Saliz Creek ......................... Tularosa River .................... Negrito Creek ..................... South Fork Negrito Creek .. 112 (45) 182 (74) 338 (137) 272 (110) 171 (69) ........................ ........................ ........................ ........................ ........................ ........................ ........................ ........................ ........................ ........................ 96 (39) 36 (15) 492 (199) 65 (26) 21 (9) 208 (84) 218 (88) 829 (336) 337 (136) 192 (78) Unit Total ..................... 3. Blue River Subbasin ....... ............................................. Blue River ........................... Campbell Blue Creek ......... Dry Blue Creek ................... 2,753 (1,114) 2,105 (852) 300 (121) 106 (43) ........................ ........................ ........................ ........................ ........................ ........................ ........................ ........................ 2,152 (871) 399 (162) 61 (25) ........................ 4,905 (1,985) 2,504 (1,013) 361 (146) 106 (43) Unit Total ..................... 4. Eagle Creek .................... ............................................. ............................................. 2,510 (1,016) 99 (40) ........................ ........................ ........................ 236 (96) 460 (186) 1 (<1) 2,971 (1,202) 336 (136) Unit Total ..................... 5. Black River Subbasin ..... ............................................. Black River ......................... Bear Wallow Creek ............ North Fork Bear Wallow Creek. Reservation Creek ............. Fish Creek .......................... East Fork Black River ........ 99 (40) 653 (264) 127 (51) 61 (25) ........................ ........................ ........................ ........................ 236 (96) 111 (45) 47 (19) ........................ 1 (<1) ........................ ........................ ........................ 336 (136) 763 (309) 174 (71) 61 (25) 96 (39) 107 (43) 370 (150) ........................ ........................ ........................ 36 (14) ........................ ........................ ........................ ........................ ........................ 132 (54) 107 (43) 370 (150) Unit Total ..................... 6. Canyon Creek ................. ............................................. ............................................. 1,414 (572) 155 (63) ........................ ........................ 194 (78) 77 (31) ........................ ........................ 1,607 (650) 232 (94) Unit Total ..................... 7. Tonto Creek Subbasin .... ............................................. Tonto Creek ....................... Houston Creek ................... Haigler Creek ..................... 155 (63) 1,003 (406) 16 (6) 266 (108) ........................ ........................ ........................ ........................ 77 (31) ........................ ........................ ........................ ........................ 75 (30) 2 (1) 28 (11) 232 (94) 1,078 (436) 18 (7) 294 (119) Unit Total ..................... 8. Verde River Subbasin ..... ............................................. Verde River ........................ Oak Creek .......................... West Fork Oak Creek ........ 1,285 (520) 823 (333) 360 (146) 161 (65) ........................ ........................ 51 (21) ........................ ........................ ........................ ........................ ........................ 105 (43) 101 (41) 337 (136) ........................ 1,390 (562) 923 (374) 748 (303) 161 (65) Unit Total ..................... ............................................. 1,343 (544) 51 (21) ........................ 437 (177) 1,832 (741) Total ...................... ............................................. 12,386 (5,013) 329 (133) 507 (205) 5,479 (2,217) 18,701 (7,568) Unit Total ..................... 2. San Francisco River Subbasin. Note: Area sizes may not sum due to rounding. jbell on DSKJLSW7X2PROD with PROPOSALS2 We present brief descriptions of all units, and reasons why they meet the definition of critical habitat for narrowheaded gartersnake, below. Gila River Subbasin Unit The Gila River Subbasin Unit is generally located in southwestern New Mexico, east of Glenwood, and west and north of Silver City in Grant and Hidalgo Counties, New Mexico. This unit consists of 5,429 ac (2,197 ha) in 8 VerDate Sep<11>2014 19:35 Apr 27, 2020 Jkt 250001 subunits along 104 stream mi (167 km): 46 stream mi (74 km) of the Gila River, 12 stream mi (19 km) of West Fork Gila River, 14 stream mi (23 km) of Middle Fork Gila River, 10 stream mi (16 km) of Black Canyon, 6 stream mi (10 km) of Diamond Creek, 6 stream mi (10 km) of Gilita Creek, 2 stream mi (3 km) of Iron Creek, and 7 stream mi (11 km) of Little Creek. The Gila River Subbasin Unit consists of lands primarily managed by the U.S. Forest Service on PO 00000 Frm 00024 Fmt 4701 Sfmt 4702 the Gila National Forest; BLM within the Lower Box and Middle Gila Box ACECs and Gila Lower Box Wilderness Study Area; NPS on Gila Cliff Dwellings National Monument; New Mexico Department of Game and Fish on Heart Bar Wildlife Area, Redrock State Wildlife Experimental Area, and Gila Bird Area; State Trust lands; and private ownership, including lands owned by Freeport McMoRan Corporation. E:\FR\FM\28APP2.SGM 28APP2 Federal Register / Vol. 85, No. 82 / Tuesday, April 28, 2020 / Proposed Rules jbell on DSKJLSW7X2PROD with PROPOSALS2 Some reaches of the Gila River have been adversely affected by channelization and water diversions. In November 2014, the New Mexico Interstate Stream Commission provided notice to the Secretary of the Interior that the State of New Mexico intends to construct the New Mexico Unit of the Central Arizona Project as authorized by the Colorado River Basin Project Act of 1968 (Central Arizona Project 2015, p. 5–6). The New Mexico Unit of the Central Arizona Project will divert up to 14,000 ac-ft per year from the upper Gila River and its tributaries for consumptive use in New Mexico. However, the Secretary of the Interior denied an extension to divert additional funding, and no record of decision for a project design was issued by a December 31, 2019, deadline. Therefore, the future of the project is unknown. Historically, the West and Middle Forks Gila River maintained large populations of bullfrogs and nonnative, spiny-rayed fish. Wildfires have burned at both moderate and high severity within the unit and likely resulted in significant flooding with excessive ash and sediment loads. These sediment and ash-laden floods can reduce populations of both nonnative predatory species and native prey species for narrow-headed gartersnakes in affected streams for many years. The Gila River, West Fork Gila River, Little Creek, Iron Creek, Black Canyon, and Diamond Creek subunits have PBFs 1, 2, 3, and 5, but PBF 4 is in degraded condition. The Middle Fork Gila River Subunit has PBF 1, 2, 4, and 5 but PBF 3 is in degraded condition. The physical or biological features in this unit may require special management consideration due to competition with, and predation by, nonnative species that are present in this unit; water diversions; channelization; potential for highintensity wildfires; and human development of areas adjacent to proposed critical habitat. Lands owned by Freeport McMoRan Corporation along the Gila River in the Gila River Subunit are being considered for exclusion from the final rule for critical habitat under section 4(b)(2) of the Act. A total of 563 ac (228 ha), or 10 percent, of this unit are being considered for exclusion (see Application of Section 4(b)(2) of the Act, below). San Francisco River Subbasin Unit The San Francisco River Subbasin Unit is generally located in southwestern New Mexico near the towns of Glenwood and Reserve, and east of Luna, in Catron County. This unit consists of 4,905 ac (1,985 ha) in 6 VerDate Sep<11>2014 19:35 Apr 27, 2020 Jkt 250001 subunits along 129 stream mi (207 km): 71 stream mi (115 km) of San Francisco River, 9 stream mi (14 km) of Whitewater Creek, 8 stream mi (13 km) of Saliz Creek, 20 stream mi (32 km) of Tularosa River, 13 stream mi (21 km) of Negrito Creek, and 8 stream mi (13 km) of South Fork Negrito Creek. The San Francisco River Subbasin Unit consists of lands managed primarily by the U.S. Forest Service on Gila National Forest and private landowners. Water diversions have dewatered sections of the San Francisco River Subunit in the upper Alma Valley and at Pleasanton, New Mexico. The San Francisco River Subunit also has historically maintained populations of bullfrogs, crayfish, and nonnative, spiny-rayed fish at various densities along its course. Wildfires have burned at both moderate and high severity within the unit and likely resulted in significant flooding with excessive ash and sediment loads. These sediment and ash-laden floods can reduce populations of both nonnative predatory species and native prey species for narrow-headed gartersnakes in affected streams for many years. San Francisco River Subunit has PBFs 1, 2, and 5, but PBFs 3 and 4 are in degraded condition. Whitewater Creek Subunit has PBFs 1, 2, 4, and 5, but PBF 3 is in degraded condition. Tularosa River, Saliz Creek, Negrito Creek, and subunits have PBFs 1, 2, 3, and 5, but PBF 4 is in degraded condition. South Fork Negrito Creek Subunit has adequate PBFs. The physical or biological features in this unit may require special management consideration due to competition with, and predation by, nonnative species that are present in this unit; water diversions that reduce base flow; potential for highintensity wildfires; and human recreation and development of areas adjacent to proposed critical habitat. No areas within this unit are considered for exclusion. Blue River Subbasin Unit The Blue River Subbasin Unit is generally located near the east central border of Arizona northeast of Clifton in Greenlee County, and just into westcentral New Mexico in Catron County. This unit consists of a total of 2,971 ac (1,202 ha) along 64 stream mi (103 km): 52 stream mi (84 km) of Blue River, 7 stream mi (11 km) of Campbell Blue Creek, and 4 stream mi (6 km) of Dry Blue Creek. Blue River Subbasin Unit consists of lands managed primarily by the U.S. Forest Service on Gila and Apache-Sitgreaves National Forests, and private landowners. The fish community of the Blue River is highly diverse and largely native, but PO 00000 Frm 00025 Fmt 4701 Sfmt 4702 23631 nonnative fish are present. Native fish restoration is actively occurring in the Blue River, including construction of a fish barrier, mechanical removal of nonnative fish, and repatriation and monitoring of federally listed warmwater fishes (Robinson and Crowder 2015, p. 24; Robinson and Love-Chezem 2015, entire). Wildfires have burned at both moderate and high severity within the unit and likely resulted in significant flooding with excessive ash and sediment loads. These sediment and ash-laden floods can reduce populations of both nonnative predatory species and native prey species for narrow-headed gartersnakes in affected streams for many years. The Blue River and Dry Blue Creek subunits have PBFs 1, 2, 3, and 5, but PFB 4 is in degraded condition. Campbell Blue Creek Subunit has PBFS 1, 2, 4, and 5, but PBF 3 may be in degraded condition. The physical or biological features in this unit may require special management consideration to maintain or develop physical or biological features, including preventing reinvasion of nonnative species, and continuing to reestablish native prey species. No areas within this unit are considered for exclusion. Eagle Creek Unit The Eagle Creek Unit is generally located in eastern Arizona near Morenci and includes portions of Graham and Greenlee Counties. This unit consists of a total of 336 ac (136 ha) along 7 stream mi (11 km) of Eagle Creek. The majority of lands within this unit are managed by the San Carlos Apache Tribe and the U.S. Forest Service on the Gila National Forest. This unit has PBFs 1, 2, 3, and 5, but PBF 4 is deficient. Special management in this unit may be required to maintain or develop the physical or biological features, including the elimination or reduction of crayfish and nonnative, spiny-rayed fish, as well as maintenance of adequate base flow in Eagle Creek. Lands owned by the San Carlos Apache Tribe in the Eagle Creek Unit are being considered for exclusion from the final rule for critical habitat under section 4(b)(2) of the Act. A total of 236 ac (96 ha), or 70 percent, of this unit are being considered for exclusion (see Application of Section 4(b)(2) of the Act, below). Black River Subbasin Unit The Black River Subbasin Unit is generally located along the Mogollon Rim in east-central Arizona, east of Maverick and west of Hannigan Meadow, and includes portions of Apache, Graham, and Greenlee E:\FR\FM\28APP2.SGM 28APP2 23632 Federal Register / Vol. 85, No. 82 / Tuesday, April 28, 2020 / Proposed Rules Counties. This unit consists of a total of 1,607 ac (650 ha) in 6 subunits along 51 stream mi (82 km): 23 stream mi (37 km) of Black River, 6 stream mi (10 km) of Bear Wallow Creek, 2 stream mi (3 km) of North Fork Bear Wallow Creek, 5 stream mi (8 km) of Reservation Creek, 4 stream mi (6 km) of Fish Creek, and 12 stream mi (19 km) of East Fork Black River. The majority of lands within this unit are managed by the U.S. Forest Service on Apache-Sitgreaves National Forest, with additional lands managed by the White Mountain Apache and San Carlos Apache Tribes. Water in the Black River Subbasin is diverted for use at the Morenci Mine, which may affect base flow. Wildfires have burned at both moderate and high severity within the unit and likely resulted in significant flooding with excessive ash and sediment loads. These sediment and ash-laden floods can reduce populations of both nonnative predatory species and native prey species for narrow-headed gartersnakes in affected streams for many years. In general, this unit has PBFs 1, 2, 3, and 5, but PBF 4 is in degraded condition. The physical or biological features in this unit may require special management consideration due to competition with, and predation by, nonnative species that are present in this unit; water diversions; potential for high-intensity wildfires; and human development of areas adjacent to proposed critical habitat. Lands owned by the White Mountain Apache and San Carlos Apache Tribes along the Black River, Bear Wallow Creek, and Reservation Creek of the Black River Subbasin Unit are being considered for exclusion from the final rule for critical habitat under section 4(b)(2) of the Act. A total of 195 ac (79 ha), or 12 percent, of this unit are being considered for exclusion (see Application of Section 4(b)(2) of the Act, below). jbell on DSKJLSW7X2PROD with PROPOSALS2 Canyon Creek Unit The Canyon Creek Unit is generally located along the Mogollon Rim in eastcentral Arizona, and falls within Gila County. This unit consists of 232 ac (94 ha) along 8 stream mi (13 km) of Canyon Creek. The Tonto National Forest manages the majority of lands within this unit; however, the White Mountain Apache Tribe also has land within this unit. This unit contains sufficient physical or biological features, but these features may require special management consideration including preventing invasion by nonnative predatory species as well as the potential for high-intensity wildfires. VerDate Sep<11>2014 19:35 Apr 27, 2020 Jkt 250001 Lands owned by the White Mountain Apache Tribe in the Canyon Creek Unit are being considered for exclusion from the final rule for critical habitat under section 4(b)(2) of the Act. A total of 77 ac (31 ha), or 33 percent, of this unit are being considered for exclusion (see Application of Section 4(b)(2) of the Act, below). Tonto Creek Subbasin Unit The Tonto Creek Subbasin Unit is generally located southeast of Payson, Arizona, and northeast of the Phoenix metropolitan area, in Gila County. This unit consists of a total of 1,390 ac (562 ha) in 3 subunits along 41 stream mi (66 km): 28 stream mi (45 km) of Tonto Creek, 1 stream mi (2 km) of Houston Creek, and 12 stream mi (19 km) of Haigler Creek. Land ownership or land management within this unit consists of lands managed by the U.S. Forest Service on Tonto National Forest in the Hellsgate Wilderness and privately owned lands. Some reaches along Tonto Creek experience seasonal drying as a result of regional groundwater pumping, while others are or may be affected by diversions or existing or planned flood control projects. Development along private reaches of Tonto Creek may also affect terrestrial characteristics of narrow-headed gartersnake habitat. Mercury has been detected in fish samples within Tonto Creek, and further research is necessary to determine if mercury is bioaccumulating in the resident food chain. In general, this unit has PBFs 1, 2, 3, and 5, but PBF 4 is in degraded condition. The physical or biological features in this unit may require special management consideration due to competition with, and predation by, nonnative species that are present in this unit; water diversions; flood-control projects; potential for high-intensity wildfires; and development of areas adjacent to or within proposed critical habitat. No areas within this unit are considered for exclusion. Verde River Subbasin Unit The Verde River Subbasin Unit is generally located near Perkinsville and Sedona, Arizona, west of Paulden, Arizona, in Coconino and Yavapai Counties. This unit consists of 1,832 ac (741 ha) in 3 subunits along 58 stream mi (93 km): 27 stream mi (43 km) of Verde River, 24 stream mi (39 km) of Oak Creek, and 7 stream mi (11 km) of West Fork Oak Creek. Verde River Subbasin Unit occurs on lands managed by the U.S. Forest Service on Prescott and Coconino National Forests, Arizona State Parks at Redrock State Park, and PO 00000 Frm 00026 Fmt 4701 Sfmt 4702 private entities. Proposed groundwater pumping of the Big Chino Aquifer may adversely affect future base flow in the Verde River. In general, the physical or biological features in this unit are sufficient, but may require special management consideration due to competition with, and predation by, nonnative species that are present; water diversions; groundwater pumping potentially resulting in drying of habitat; potential for high-intensity wildfires; and human development of areas adjacent to proposed critical habitat. No areas within this unit are considered for exclusion. 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. We published a final rule with a revised definition of destruction or adverse modification on August 27, 2019 (84 FR 44976). Destruction or adverse modification means a direct or indirect alteration that appreciably diminishes the value of critical habitat as a whole for the conservation of a listed species. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency (action agency) must enter into consultation with us. Examples of actions that are subject to the section 7 consultation process are actions on State, tribal, local, or private lands that require a Federal permit (such as a permit from the U.S. Army Corps of Engineers under section 404 of the Clean Water Act (33 U.S.C. 1251 et seq.) or a permit from the Service under section 10 of the Act) or that involve some other Federal action (such as funding from the Federal Highway Administration, Federal Aviation Administration, or the Federal 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, authorized, or carried out by a Federal E:\FR\FM\28APP2.SGM 28APP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 Federal Register / Vol. 85, No. 82 / Tuesday, April 28, 2020 / Proposed Rules agency—do not require section 7 consultation. Compliance with the requirements of section 7(a)(2) of the Act is documented 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 set forth requirements for Federal agencies to reinitiate formal consultation on previously reviewed actions. These requirements apply when the Federal agency has retained discretionary involvement or control over the action (or the agency’s discretionary involvement or control is authorized by law) and, subsequent to the previous consultation, we have listed a new species or designated critical habitat that may be affected by the Federal action, or the action has been modified in a manner that affects the species or critical habitat in a way not considered in the previous consultation. In such situations, Federal agencies sometimes may need to request reinitiation of consultation with us, but the regulations also specify some exceptions to the VerDate Sep<11>2014 19:35 Apr 27, 2020 Jkt 250001 requirement to reinitiate consultation on specific land management plans after subsequently listing a new species or designating new critical habitat. See the regulations for a description of those exceptions. Application of the ‘‘Adverse Modification’’ Standard The key factor related to the destruction or adverse modification determination is whether implementation of the proposed Federal action directly or indirectly alters the designated critical habitat in a way that appreciably diminishes the value of the critical habitat as a whole for the conservation of the listed species. 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 violate 7(a)(2) of the Act by destroying or adversely modifying such habitat, or that may be affected by such designation. Activities that the Services may, during a consultation under section 7(a)(2) of the Act, find are likely to destroy or adversely modify critical habitat include, but are not limited to: (1) Actions that would alter the amount, timing, or frequency of flow within a stream or the quantity of available water within wetland habitat such that the prey base for either gartersnake species, or the gartersnakes themselves, are appreciably diminished or threatened with extirpation. Such activities could include, but are not limited to: Water diversions; channelization; construction of any barriers or impediments within the active river channel; removal of flows in excess of those allotted under a given water right; construction of permanent or temporary diversion structures; groundwater pumping within aquifers associated with the river; or dewatering of isolated within-channel pools or stock tanks. These activities could result in the reduction of the distribution or abundance of important gartersnake prey species, as well as reduce the distribution and amount of suitable physical habitat on a regional landscape for the gartersnakes themselves. (2) Actions that would significantly increase sediment deposition or scouring within the stream channel or pond that is habitat for the northern Mexican or narrow-headed gartersnake, PO 00000 Frm 00027 Fmt 4701 Sfmt 4702 23633 or one or more of their prey species within the range of either gartersnake species. Such activities could include, but are not limited to: Poorly managed livestock grazing; road construction; commercial or urban development; channel alteration; timber harvest; prescribed fires or wildfire suppression; off-road vehicle or recreational use; and other alterations of watersheds and floodplains. These activities could adversely affect the potential for gartersnake prey species to survive or breed. They may also reduce the likelihood that their prey species, leopard frogs for northern Mexican gartersnake for example, could move among subpopulations in a functioning metapopulation. This would, in turn, decrease the viability of metapopulations and their component local populations of prey species. (3) Actions that would alter water chemistry beyond the tolerance limits of a gartersnake prey base. Such activities could include, but are not limited to: Release of chemicals, biological pollutants, or effluents into the surface water or into connected groundwater at a point source or by dispersed release (non-point source); aerial deposition of known toxicants, such as mercury, that are positively correlated to regional exceedances of water quality standards for these toxicants; livestock grazing that results in waters heavily polluted by feces; runoff from agricultural fields; roadside use of salts; aerial pesticide overspray; runoff from mine tailings or other mining activities; and ash flow and fire retardants from fires and fire suppression. These actions could adversely affect the ability of the habitat to support survival and reproduction of gartersnake prey species. (4) Actions that would remove, diminish, or significantly alter the structural complexity of key natural structural habitat features in and adjacent to aquatic habitat. These features may be organic or inorganic, may be natural or constructed, and include (but are not limited to) boulders and boulder piles, rocks such as river cobble, downed trees or logs, debris jams, small mammal burrows, or leaf litter. Such activities could include, but are not limited to: Construction projects; flood control projects; vegetation management projects; or any project that requires a 404 permit from the U.S. Army Corps of Engineers. These activities could result in a reduction of the amount or distribution of these key habitat features that are important for gartersnake thermoregulation, shelter, protection from predators, and foraging opportunities. E:\FR\FM\28APP2.SGM 28APP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 23634 Federal Register / Vol. 85, No. 82 / Tuesday, April 28, 2020 / Proposed Rules (5) Actions and structures that would physically block movement of gartersnakes or their prey species within or between regionally proximal populations or suitable habitat. Such actions and structures include, but are not limited to: Urban, industrial, or agricultural development; reservoirs stocked with predatory fishes, bullfrogs, or crayfish; highways that do not include reptile and amphibian fencing and culverts; and walls, dams, fences, canals, or other structures that could physically block movement of gartersnakes. These actions and structures could reduce or eliminate immigration and emigration among gartersnake populations, or that of their prey species, reducing the long-term viability of populations. (6) Actions that would directly or indirectly result in the introduction, spread, or augmentation of predatory nonnative species in gartersnake habitat, or in habitat that is hydrologically connected, even if those segments are occasionally intermittent, or introduction of other species that compete with or prey on either gartersnake species or their prey base, or introduce pathogens such as Batrachochytrium dendrobatidis, which is a serious threat to the amphibian prey base of northern Mexican gartersnakes. Possible actions could include, but are not limited to: Introducing or stocking nonnative, spiny-rayed fishes, bullfrogs, crayfish, tiger salamanders, or other predators of the prey base of northern Mexican or narrow-headed gartersnakes; creating or sustaining a sport fishery that encourages use of nonnative live fish, crayfish, tiger salamanders, or frogs as bait; maintaining or operating reservoirs that act as source populations for predatory nonnative species within a watershed; constructing water diversions, canals, or other water conveyances that move water from one place to another and through which inadvertent transport of predatory nonnative species into northern Mexican or narrow-headed gartersnake habitat may occur; and moving water, mud, wet equipment, or vehicles from one aquatic site to another, through which inadvertent transport of pathogens may occur. These activities directly or indirectly cause unnatural competition with and predation from nonnative predators on these gartersnake species, leading to significantly reduced recruitment within gartersnake populations and diminishment or extirpation of their prey base. (7) Actions that would deliberately remove, diminish, or significantly alter the native or nonnative, soft-rayed fish VerDate Sep<11>2014 19:35 Apr 27, 2020 Jkt 250001 component of the narrow-headed gartersnake prey base within occupied habitat for a period of 7 days or longer. In general, these actions typically occur in association with fisheries management, such as the application of piscicides in conjunction with fish barrier construction. These activities are designed to completely remove target fish species from a treatment area and, if the area is fishless for an extended period of time, could result in starvation of a resident narrow-headed gartersnake population. 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. Exclusions Consideration of Impacts Under Section 4(b)(2) of the Act Section 4(b)(2) of the Act states that the Secretary shall designate and make revisions to critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat. The Secretary may exclude an area from 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 the determination to exclude a particular area, 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. The first sentence in section 4(b)(2) of the Act requires that we take into consideration the economic, national security or other relevant impacts of designating any particular area as PO 00000 Frm 00028 Fmt 4701 Sfmt 4702 critical habitat. We describe below the process that we undertook for taking into consideration each category of impacts and our analyses of the relevant impacts. 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 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 E:\FR\FM\28APP2.SGM 28APP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 Federal Register / Vol. 85, No. 82 / Tuesday, April 28, 2020 / Proposed Rules 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 northern Mexican gartersnake and the narrow-headed gartersnake (Industrial Economics 2019, entire). We began by conducting a screening analysis of the proposed designation of critical habitat in order to focus our analysis on the key factors that are likely to result in incremental economic impacts. The purpose of the screening analysis is to filter out the geographic areas in which the critical habitat designation is unlikely to result in probable incremental economic impacts. In particular, the screening analysis considers baseline costs (i.e., absent critical habitat designation) and includes probable economic impacts where land and water use may be subject to conservation plans, land management plans, best management practices, or regulations that protect the habitat area as a result of the Federal listing status of the species. The screening analysis filters out particular areas of critical habitat that are already subject to such protections and 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 species and may require additional management or conservation efforts as a result of the critical habitat designation for the species which may incur incremental economic impacts. This screening analysis, combined with the information contained in our IEM, are what we consider our draft economic analysis (DEA) of the proposed critical habitat designation for the northern Mexican gartersnake and the narrow-headed gartersnake. The DEA 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 VerDate Sep<11>2014 19:35 Apr 27, 2020 Jkt 250001 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 northern Mexican gartersnake and the narrow-headed gartersnake, first we identified, in the IEM dated October 10, 2019, probable incremental economic impacts associated with the following categories of activities: (1) Federal lands management (National Park Service, U.S. Forest Service, Bureau of Land Management, Service, Department of Defense); (2) grazing (U.S. Forest Service, Bureau of Indian Affairs, Bureau of Land Management); (3) groundwater pumping (U.S. Forest Service, Bureau of Land Management, Department of Defense); (4) in-stream dams and diversions (Bureau of Land Management, Bureau of Reclamation, Service, Department of Defense); (5) dredging (Army Corps of Engineers, U.S. Forest Service, Bureau of Land Management, Natural Resources Conservation Service, National Park Service, Bureau of Indian Affairs); (6) water supply (Bureau of Reclamation, Army Corps of Engineers, Service, Bureau of Indian Affairs); (7) conservation and restoration (Natural Resources Conservation Service, Service, U.S. Forest Service, Department of Defense, Bureau of Land Management, National Park Service); (8) mining (U.S. Forest Service, Bureau of Land Management); (9) fire management (National Park Service, U.S. Forest Service, Bureau of Land Management, Bureau of Indian Affairs, Department of Defense); (10) vegetation and forest management (National Park Service, U.S. Forest Service, Bureau of Land Management); (11) transportation, including road and bridge construction and maintenance (Department of Transportation, Department of Defense, Bureau of Land Management, National Park Service, U.S. Forest Service, Customs and Border Protection, Bureau of Indian Affairs, Army Corps of Engineers); (12) recreation, including, but not limited to, sport fishing, sportfish stocking, and off-highway vehicle use (National Park Service, U.S. Forest Service, Bureau of Land Management); (13) border protection and national security (U.S. Customs and Border Protection, Department of Defense); (14) renewable energy (Bureau of Indian Affairs, Department of Transportation, Bureau of Land Management); and (15) commercial or residential development (Army Corps of Engineers). We PO 00000 Frm 00029 Fmt 4701 Sfmt 4702 23635 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; under the Act, designation of critical habitat only affects activities conducted, funded, permitted, or authorized by Federal agencies. In areas where the northern Mexican gartersnake or the narrowheaded gartersnake 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 species. If we finalize this revised 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 will result from the species being listed and those attributable to the critical habitat designation (i.e., difference between the jeopardy and adverse modification standards) for the northern Mexican gartersnake’s and the narrowheaded gartersnake’s critical habitat. The following specific circumstances 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 species, and (2) any actions that would result in sufficient harm or harassment to constitute jeopardy to the northern Mexican gartersnake and the narrow-headed gartersnake 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 species. 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 northern Mexican gartersnake 27,784 ac (11,244 ha) comprising 9 units. Land ownership within proposed critical habitat for the northern Mexican gartersnake in acres is broken down as follows: Federal (62 percent), State (Arizona and New Mexico) (5 percent), Tribal (0.3 percent), and private (32 percent) (see table 2a, above). All units are considered occupied. The proposed critical habitat designation for the narrow-headed gartersnake 18,701 ac (7,568 ha) E:\FR\FM\28APP2.SGM 28APP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 23636 Federal Register / Vol. 85, No. 82 / Tuesday, April 28, 2020 / Proposed Rules comprising 8 units. Land ownership within proposed critical habitat for the narrow-headed gartersnake in acres is broken down as follows: Federal (66 percent), State (Arizona and New Mexico) (2 percent), Tribal (3 percent), and private (29 percent) (see table 2b, above). All units are considered occupied. In these areas, any actions that may affect the species would also affect designated critical habitat because the species is so dependent on habitat to fulfill its life-history functions. Therefore, any conservation measures to address impacts to the species would be the same as those to address impacts to critical habitat. Consequently, it is unlikely that any additional conservation efforts would be recommended to address the adverse modification standard over and above those recommended as necessary to avoid jeopardizing the continued existence of the both gartersnakes. Further, every unit of proposed critical habitat overlaps with the ranges of a number of currently listed species and designated critical habitats. Therefore, the actual number of section 7 consultations is not expected to increase at all. The consultation would simply have to consider an additional species or critical habitat unit. While this additional analysis will require time and resources by the Federal action agency, the Service, and third parties, the probable incremental economic impacts of the critical habitat designation are expected to be limited to additional administrative costs and would not be significant (Industrial Economics 2019, entire). This is due to all units being occupied by either the northern Mexican gartersnake or the narrow-headed gartersnake. Based on consultation history for the gartersnakes, the number of future consultations, including technical assistances, is likely to be no more than 21 per year. The additional administrative cost of addressing adverse modification in these consultations is likely to be less than $61,000 in a given year, including costs to the Service, the Federal action agency, and third parties (Industrial Economics 2019 p. 14), with approximately $28,000 for formal consultations, $32,000 for informal consultations, and $1,100 for technical assistances. This is based on an individual technical assistance costing $410, informal consultation costing $2,500, and formal consultation costing $9,600. Therefore, the incremental costs associated with critical habitat are unlikely to exceed $100 million in any VerDate Sep<11>2014 19:35 Apr 27, 2020 Jkt 250001 single year and, therefore, would not be significant. To predict which units of proposed critical habitat are likely to experience the highest estimated incremental costs, we consider both the geographic distribution of historical formal consultations as well as the geographic distribution of land area. The units with the most historical formal consultations as well as the most acres of proposed critical habitat—and therefore the highest probability of intersecting with projects or activities with a Federal nexus that require consultation—are most likely to result in the highest incremental costs. Based on these criteria, Units 3 and 9 for the northern Mexican gartersnake are likely to result in the highest costs, with 30 percent and 15 percent of the 5.4 annual formal consultations occurring respectively in these units (Industrial Economics 2019, p. 16). In Unit 3, this would result in a cost of approximately $15,500; of this, the third-party cost is estimated to be less than 20 percent, or approximately $3,100. In Unit 9, this would result in a cost of approximately $7,700; of this, the third-party cost is estimated to be less than 20 percent, or approximately $1,500. For the narrow-headed gartersnake, Units 1 and 2 are likely to result in the highest costs, with 6 percent and 11 percent of the 5.4 annual formal consultations occurring respectively in these units (Industrial Economics 2019, p. 17). In Unit 1, this would result in a cost of approximately $3,100; of this, the third-party cost is estimated to be less than 20 percent, or approximately $600. In Unit 2, this would result in a cost of approximately $5,700; of this, the third-party cost is estimated to be less than 20 percent, or approximately $1,100. Therefore, impacts that are concentrated in any geographic area or sector would not be likely because of this critical habitat designation. As we stated earlier, we are soliciting data and comments from the public on the draft economic analysis, as well as all aspects of this revised proposed rule and our required determinations. We may revise the proposed rule or supporting documents to incorporate or address information we receive during the public comment period. In particular, we may exclude an area from critical habitat if we determine that the benefits of excluding the area outweigh the benefits of including the area, provided the exclusion will not result in the extinction of this species. During the development of a final designation, we will consider any additional economic impact information we receive through the public comment PO 00000 Frm 00030 Fmt 4701 Sfmt 4702 period, and 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 Economic Impacts The first sentence of section 4(b)(2) of the Act requires the Service to consider the economic impacts (as well as the impacts on national security and any other relevant impacts) of designating critical habitat. In addition, economic impacts may, for some particular areas, play an important role in the discretionary 4(b)(2) exclusion analysis under the second sentence of section 4(b)(2). In both contexts, the Service will consider the probable incremental economic impacts of the designation. When the Service undertakes a discretionary 4(b)(2) exclusion analysis with respect to a particular area, we will weigh the economic benefits of exclusion (and any other benefits of exclusion) against any benefits of inclusion (primarily the conservation value of designating the area). The conservation value may be influenced by the level of effort needed to manage degraded habitat to the point where it could support the listed species. The Service will use its discretion in determining how to weigh probable incremental economic impacts against conservation value. The nature of the probable incremental economic impacts and not necessarily a particular threshold level triggers considerations of exclusions based on probable incremental economic impacts. For example, if an economic analysis indicates high probable incremental impacts of designating a particular critical habitat unit of low conservation value (relative to the remainder of the designation), the Services may consider exclusion of that particular unit. Considerations Based on National Security Impacts Section 4(a)(3)(B)(i) of the Act may not cover all Department of Defense (DoD) lands or areas that pose potential national-security concerns (e.g., a DoD installation that is in the process of revising its INRMP for a newly listed species or a species previously not covered). If a particular area is not covered under section 4(a)(3)(B)(i), national-security or homeland-security concerns are not a factor in the process of determining what areas meet the definition of ‘‘critical habitat.’’ Nevertheless, when designating critical habitat under section 4(b)(2), the Service must consider impacts on national security, including homeland security, on lands or areas not covered by section E:\FR\FM\28APP2.SGM 28APP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 Federal Register / Vol. 85, No. 82 / Tuesday, April 28, 2020 / Proposed Rules 4(a)(3)(B)(i). Accordingly, we will always consider for exclusion from the designation areas for which DoD, Department of Homeland Security (DHS), or another Federal agency has requested exclusion based on an assertion of national-security or homeland-security concerns. We cannot automatically exclude requested areas. When DoD, DHS, or another Federal agency requests exclusion from critical habitat on the basis of national-security or homelandsecurity impacts, it must provide a reasonably specific justification of an incremental impact on national security that would result from the designation of that specific area as critical habitat. That justification could include demonstration of probable impacts, such as impacts to ongoing bordersecurity patrols and surveillance activities, or a delay in training or facility construction, as a result of compliance with section 7(a)(2) of the Act. If the agency requesting the exclusion does not provide us with a reasonably specific justification, we will contact the agency to recommend that it provide a specific justification or clarification of its concerns relative to the probable incremental impact that could result from the designation. If the agency provides a reasonably specific justification, we will defer to the expert judgment of DoD, DHS, or another Federal agency as to: (1) Whether activities on its lands or waters, or its activities on other lands or waters, have national-security or homeland-security implications; (2) the importance of those implications; and (3) the degree to which the cited implications would be adversely affected in the absence of an exclusion. In that circumstance, in conducting a discretionary 4(b)(2) exclusion analysis, we will give great weight to national-security and homeland-security concerns in analyzing the benefits of exclusion. Congress has provided to the Secretary of Homeland Security a number of authorities necessary to carry out the Department’s border security mission. One of those authorities is found at section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, as amended (‘‘IIRIRA’’). In section 102(a) of IIRIRA, Congress provided that the Secretary of Homeland Security shall take such actions as may be necessary to install additional physical barriers and roads (including the removal of obstacles to detection of illegal entrants) in the vicinity of the United States border to deter illegal crossings in areas of high illegal entry into the United States. In section 102(b) of IIRIRA, Congress VerDate Sep<11>2014 19:35 Apr 27, 2020 Jkt 250001 mandated the installation of additional fencing, barriers, roads, lighting, cameras, and sensors on the southwest border. Finally, in section 102(c) of IIRIRA, Congress granted to the Secretary of Homeland Security the authority to waive all legal requirements that he determines are necessary to ensure the expeditious construction of barriers and roads authorized by section 102 of IIRIRA. On May 15, 2019, the Secretary of Homeland Security issued waivers for legal requirements covering border barrier activities directly in the vicinity of the garternsnakes’ known range and proposed critical habitat (84 FR 21798). Exclusions Based on National Security Impacts We received comments from the U.S. Army installation at Fort Huachuca requesting that we exclude from the final designation of critical habitat the San Pedro River and Babocomari River subunits within the San Pedro River Subbasin Unit that fall within the San Pedro Riparian National Conservation Area (SPRNCA) managed by the BLM, as well as the lands owned by the Arizona State Land Department and private landowners. This includes 92 percent of the San Pedro River Subunit and all of the Babocomari River Subunit. San Pedro River Subunit and Babocomari River Subunit The area being requested for exclusion is part of the SPRNCA and is managed by the BLM and comprised of Federal, State, and private lands. The Army’s rationale for the exclusion was that any additional restrictions to ground-water pumping and water usage could affect their ability to increase staffing when needed, or carry out missions critical to national security. The Army also stated that designation of lands within the SPRNCA would increase its regulatory burden and disrupt its operations related to national security. The Army pointed to its continued land stewardship actions and its commitment to protecting natural resources on the base. We are considering this area for exclusion based on impacts to national security. Considerations of Other Relevant Impacts When identifying the benefits of inclusion for an area, we consider the additional regulatory benefits that area would receive due to the protection from destruction of adverse modification as a result of actions with a Federal nexus; the educational benefits of mapping essential habitat for PO 00000 Frm 00031 Fmt 4701 Sfmt 4702 23637 recovery of the listed species; and any benefits that may result from a designation due to State or Federal laws that may apply to critical habitat. When considering the benefits of exclusion, we consider, among other things, whether exclusion of a specific area is likely to result in conservation, or in the continuation, strengthening, or encouragement of partnerships. In the case of northern Mexican and narrow-headed gartersnakes, the benefits of critical habitat include public awareness of the presence of northern Mexican and narrow-headed gartersnakes and the importance of habitat protection, and, where a Federal nexus exists, increased habitat protection for northern Mexican and narrow-headed gartersnakes due to protection from destruction or adverse modification of critical habitat. Additionally, continued implementation of an ongoing management plan that provides equal to or more conservation than a critical habitat designation would reduce the benefits of including that specific area in the critical habitat designation. We evaluate the existence of a conservation plan when considering the benefits of inclusion. We consider a variety of factors, including, but not limited to, whether the plan is finalized; how it provides for the conservation of the essential physical or biological features; whether there is a reasonable expectation that the conservation management strategies and actions contained in a management plan will be implemented into the future; whether the conservation strategies in the plan are likely to be effective; and whether the plan contains a monitoring program or adaptive management to ensure that the conservation measures are effective and can be adapted in the future in response to new information. After identifying the benefits of inclusion and the benefits of exclusion, we carefully weigh the two sides to evaluate whether the benefits of exclusion outweigh those of inclusion. If our analysis indicates that the benefits of exclusion outweigh the benefits of inclusion, we then determine whether exclusion would result in extinction of the species. If exclusion of an area from critical habitat will result in extinction, we will not exclude it from the designation. 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 E:\FR\FM\28APP2.SGM 28APP2 23638 Federal Register / Vol. 85, No. 82 / Tuesday, April 28, 2020 / Proposed Rules jbell on DSKJLSW7X2PROD with PROPOSALS2 whether there are permitted conservation plans covering the species 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. Based on the information provided by entities seeking exclusion, as well as any additional public comments we receive, we will evaluate whether any lands in the proposed critical habitat areas are appropriate for exclusion from the final designation under section 4(b)(2) of the Act. If the analysis indicates that the benefits of excluding lands from the final designation outweigh the benefits of designating those lands as critical habitat, then the Secretary may exercise his discretion to exclude the lands from the final designation. Private or Other Non-Federal Conservation Plans or Agreements and Partnerships, in General We sometimes exclude specific areas from critical habitat designations based in part on the existence of private or other non-Federal conservation plans or agreements and their attendant partnerships. A conservation plan or agreement describes actions that are designed to provide for the conservation needs of a species and its habitat, and may include actions to reduce or mitigate negative effects on the species caused by activities on or adjacent to the area covered by the plan. Conservation plans or agreements can be developed by private entities with no Service involvement, or in partnership with the Service. We evaluate a variety of factors to determine how the benefits of any exclusion and the benefits of inclusion are affected by the existence of private or other non-Federal conservation plans or agreements and their attendant partnerships when we undertake a discretionary 4(b)(2) exclusion analysis. A non-exhaustive list of factors that we will consider for non-permitted plans or agreements is shown below. These factors are not required elements of plans or agreements, and all items may not apply to every plan or agreement. (i) The degree to which the plan or agreement provides for the conservation of the species or the essential physical VerDate Sep<11>2014 19:35 Apr 27, 2020 Jkt 250001 or biological features (if present) for the species; (ii) Whether there is a reasonable expectation that the conservation management strategies and actions contained in a management plan or agreement will be implemented; (iii) The demonstrated implementation and success of the chosen conservation measures; (iv) The degree to which the record of the plan supports a conclusion that a critical habitat designation would impair the realization of benefits expected from the plan, agreement, or partnership; (v) The extent of public participation in the development of the conservation plan; (vi) The degree to which there has been agency review and required determinations (e.g., State regulatory requirements), as necessary and appropriate; (vii) Whether National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.) compliance was required; and (viii) Whether the plan or agreement contains a monitoring program and adaptive management to ensure that the conservation measures are effective and can be modified in the future in response to new information. We are considering exclusions related to the following non-permitted (e.g., no safe harbor agreement or habitat conservation plan under the Act) voluntary plans that afford some protections to one or both gartersnakes species: The AGFD management plans for Bubbling Ponds and Page Springs State Fish Hatcheries and for Planet Ranch Conservation and Wildlife Area, and Freeport McMoRan Corporation management plans for spikedace and loach minnow. We also recognize our strong conservation partner in The Nature Conservancy, who manages exclusively for native aquatic species on their properties but do not have conservation management plans in place, per se. AGFD Management Plans The AGFD owns lands included in proposed critical habitat for northern Mexican gartersnake within the Oak Creek Subunit (142 ac (57 ha)) in the Verde River Subbasin Unit, and within the Bill Williams River Subunit (329 ac (133 ha)) in the Bill Williams River Subbasin Unit. The AGFD has implemented management actions at its Bubbling Ponds and Page Springs State Fish Hatcheries that benefit northern Mexican gartersnakes, including research on home range and habitat use of the species, maintaining fallow ponds as habitat for the species, and creating PO 00000 Frm 00032 Fmt 4701 Sfmt 4702 new gartersnake ponds as funds become available (Jones 2019). The AGFD also has an operational management plan for the Planet Ranch Conservation and Wildlife Area that they acquired in 2015 (AGFD 2018, entire). This property is along the Bill Williams River and within the Bill Williams River subunit of proposed critical habitat for northern Mexican gartersnake. The operational management plan includes habitat improvements that will be implemented and funded by the Lower Colorado River Multi-Species Conservation Program described above that could benefit the northern Mexican gartersnake (AGFD 2018, pp. 12–18). In addition, AGFD has a fully funded gartersnake biologist and has drafted a ‘‘Gartersnake Research and Management Strategy’’ for Arizona (Cotten et al. 2014, entire). Freeport McMoRan Corporation (FMC) Management Plans The FMC currently has a management plan that focuses on conservation for listed spikedace and loach minnow on the middle section of the upper Gila River that confers benefits to northern Mexican and narrow-headed gartersnakes (FMC 2011, p. 7). Freeport McMoRan owns 515 ac (208 ha) of proposed critical habitat for northern Mexican gartersnake on the Gila River and Duck Creek in the Upper Gila River Subbasin Unit, and 563 ac (228 ha) of proposed critical habitat for narrowheaded gartersnakes on the Gila River in the Gila River Subbasin Unit that are included in this management plan. Here, FMC manages more than 7.2 mi (11.6 km) along this section of the Gila River, much of which is owned by the Pacific Western Land Company (PWLC), a subsidiary of FMC, and is included in the U-Bar Ranch. FMC’s land and water rights in the Gila/Cliff Valley support operations at the Tyrone Mine in addition to its agricultural operations along the Gila River. Under FMC’s existing management system, the riparian zone adjacent to the Gila River has expanded in width, benefitting the endangered southwestern willow flycatcher and other riparian species including the two gartersnakes. Surveys show that there are low levels of nonnative fishes in the Gila/Cliff Valley segment of the Gila River stream reach as well. Specific conservation measures in the Gila River Subbasin Unit of critical habitat that confer protections to both gartersnakes include a voluntary water conservation program in which FMC has enrolled 1,450 cubic feet per second (cfs) (2,876 ac-ft) of its annual average diversion rights through 2018, and maintenance of a minimum of 25 E:\FR\FM\28APP2.SGM 28APP2 Federal Register / Vol. 85, No. 82 / Tuesday, April 28, 2020 / Proposed Rules cfs (18,099 ac-ft per year) flow levels in the Gila River during periods of drought (FMC 2011, p. 10) jbell on DSKJLSW7X2PROD with PROPOSALS2 The Nature Conservancy The Nature Conservancy owns three properties that include 597 ac (242 ha) of proposed critical habitat for northern Mexican gartersnake in Arizona. These properties include the Verde Valley Preserve with 16 ac (6 ha) of proposed critical habitat for northern Mexican gartersnake in the Verde River subunit, Canelo Hills Cienega Preserve with 1.8 ac (0.7 ha) of the O’Donnell Canyon Subunit, and the Patagonia-Sonoita Creek Preserve with 123 ac (50 ha) of the Sonoita Creek Subunit. The Nature Conservancy manages these properties for the benefit of aquatic and riparian species, although not all of them have management plans. Private or Other Non-Federal Conservation Plans Related to Permits Under Section 10 of the Act HCPs for incidental take permits under section 10(a)(1)(B) of the Act provide for partnerships with nonFederal entities to minimize and mitigate impacts to listed species and their habitat. In some cases, HCP permittees agree to do more for the conservation of the species and their habitats on private lands than designation of critical habitat would provide alone. We place great value on the partnerships that are developed during the preparation and implementation of HCPs. Candidate conservation agreements with assurances (CCAAs) and safe harbor agreements (SHAs) are voluntary agreements designed to conserve candidate and listed species, respectively, on non-Federal lands. In exchange for actions that contribute to the conservation of species on nonFederal lands, participating property owners are covered by an ‘‘enhancement of survival’’ permit under section 10(a)(1)(A) of the Act, which authorizes incidental take of the covered species that may result from implementation of conservation actions, specific land uses, and, in the case of SHAs, the option to return to a baseline condition under the agreements. The Service also provides enrollees assurances that we will not impose further land-, water-, or resource-use restrictions, or require additional commitments of land, water, or finances, beyond those agreed to in the agreements. When we undertake a discretionary 4(b)(2) exclusion analysis, we will always consider areas covered by an approved CCAA/SHA/HCP, and generally exclude such areas from a VerDate Sep<11>2014 19:35 Apr 27, 2020 Jkt 250001 designation of critical habitat if three conditions are met: 1. The permittee is properly implementing the CCAA/SHA/HCP, and is expected to continue to do so for the term of the agreement. A CCAA/SHA/ HCP is properly implemented if the permittee is, and has been, fully implementing the commitments and provisions in the CCAA/SHA/HCP, implementing agreement, and permit. 2. The species for which critical habitat is being designated is a covered species in the CCAA/SHA/HCP, or very similar in its habitat requirements to a covered species. The recognition that the Services extend to such an agreement depends on the degree to which the conservation measures undertaken in the CCAA/SHA/HCP would also protect the habitat features of the similar species. 3. The CCAA/SHA/HCP specifically addresses the habitat of the species for which critical habitat is being designated and meets the conservation needs of the species in the planning area. We are aware of the following plans related to permits under section 10 of the Act that fulfill the above criteria, and are considering the exclusion of non-Federal lands covered by these plans that provide for the conservation of northern Mexican or narrow-headed gartersnakes from the final designation: AGFD’s SHA for topminnow and desert pupfish in Arizona (AGFD and USFWS 2007), AGFD’s SHA for Chiricahua leopard frog in Arizona (AGFD and USFWS 2006), Lower Colorado River Multi-Species HCP (Lower Colorado Multi-Species Conservation Program 2018), Pima County Multi-Species HCP (Pima County 2016), Salt River Project (SRP) Roosevelt HCP (SRP 2002) and Horseshoe-Bartlett HCP (SRP 2008), and San Rafael Ranch Low-effect HCP (Harlow 2015). AGFD’s SHA for Topminnow and Desert Pupfish in Arizona Signed in 2007, the AGFD’s SHA for topminnow and desert pupfish is an umbrella document under which individual landowners in the entire Arizona range of these native fish species on non-Federal and tribal lands may participate. Topminnow and desert pupfish are prey species of the northern Mexican gartersnake. Three private landowners within the range of the northern Mexican gartersnake hold certificates of inclusion in this SHA: San Rafael Cattle Company for the 18,365-acre (7,482-ha) San Rafael Ranch in the San Rafael Valley, a private rancher for a <1 acre (<2.5 ha) property in the San Rafael Valley, and National PO 00000 Frm 00033 Fmt 4701 Sfmt 4702 23639 Audubon Society for <1 acre (<2.5 ha) of the Appleton-Whittell Research Ranch. The San Rafael Cattle Company maintains permanent water in 44 earthen stocktanks on the San Rafael Ranch that also serve as habitat for native aquatic species. The private rancher maintains permanent water in an earthen pond on his property that serves as habitat for native aquatic species. Appleton-Whittell Research Ranch is managed for the benefit of native species through a cooperative partnership among the National Audubon Society, U.S. Forest Service (USFS), BLM, The Nature Conservancy, Swift Current Land & Cattle Co., LLC, and the Research Ranch Foundation. There are 116 ac (47 ha) of private lands on the San Rafael Ranch and 0.1 ac (<0.1 ha) of private lands on the second private ranch included in proposed critical habitat for the northern Mexican gartersnake within the Upper Santa Cruz River Subbasin Unit. There are 214 ac (87 ha) of private lands within Appleton-Whittell Research Ranch that are proposed as critical habitat for northern Mexican gartersnake within the Upper San Pedro River Subbasin Unit. Details of subunit breakdown are in table 2a, above. San Rafael Cattle Company, the second private rancher, and Audubon Research Ranch must maintain aquatic habitats free of nonnative predators, including bullfrogs and warmwater sportfish, in accordance with each certificate of inclusion. To date, Gila topminnow have been released into two stock tanks on the San Rafael Ranch, and desert pupfish have been released into a wildlife pond on the Appleton-Whittell Research Ranch. All of these sites also provide habitat for northern Mexican gartersnake. AGFD’s SHA for Chiricahua Leopard Frog in Arizona Signed in 2006, the AGFD SHA for Chiricahua leopard frog is an umbrella document under which individual landowners in the entire Arizona range of this species on non-Federal and tribal lands may participate. Chiricahua leopard frogs are a primary prey species of the northern Mexican gartersnake. Four private landowners within the range of the northern Mexican gartersnake hold certificates of inclusion in this SHA: San Rafael Cattle Company, The Nature Conservancy, National Audubon Society, and an additional private ranch. Under each certificate of inclusion in the SHA, the four landowners must maintain aquatic habitats free of nonnative predators, including bullfrogs and warmwater sportfish. The San Rafael Cattle E:\FR\FM\28APP2.SGM 28APP2 23640 Federal Register / Vol. 85, No. 82 / Tuesday, April 28, 2020 / Proposed Rules jbell on DSKJLSW7X2PROD with PROPOSALS2 Company holds a certificate of inclusion for two pastures on 2,673 ac of the San Rafael Ranch in the San Rafael Valley. There are 5 ac (2 ha) within one of these pastures included in the unnamed drainage and Pasture 9 Tank subunit of proposed critical habitat for northern Mexican gartersnake in the Upper Santa Cruz River Subunit. This area is also covered by the San Rafael Ranch HCP, which is described below. To date, Chiricahua leopard frogs have been released into one stock tank on the San Rafael Ranch that also provides habitat for northern Mexican gartersnakes. This is in addition to the stock tank where Gila topminnows have been released on the ranch. National Audubon Society holds a certificate of inclusion for 1,409 ac on the Appleton-Whittell Research Ranch. There are 191 ac (77 ha) on this property included in O’Donnell Canyon, Post Canyon, and Unnamed drainage & Finley Tank subunits of proposed critical habitat for northern Mexican gartersnake. To date, Chiricahua leopard frogs have been released into two locations on this property that also provide habitat for northern Mexican gartersnakes. Another private rancher a holds a certificate of inclusion for 79 ac (32 ha) on lands adjacent to the AppletonWhittell Research Ranch. There are 15 ac (6 ha) within this ranch included in the Post Canyon Subunit of proposed critical habitat for the northern Mexican gartersnake. The Nature Conservancy holds a certificate of inclusion for its Ramsey Canyon Preserve in Ramsey Canyon, which is adjacent to proposed critical habitat for the gartersnake in the House Pond Subunit. Both Ramsey Canyon Preserve and House Pond are occupied by a Chiricahua leopard frog metapopulation that is likely prey for the northern Mexican gartersnake in this area. Although the gartersnake has yet to be detected in Ramsey Canyon, it is currently extant in House Pond Subunit in Brown Canyon, the canyon immediately north of Ramsey Canyon. Lower Colorado River Multi-Species HCP The Lower Colorado River Multispecies Conservation Program (LCR MSCP) is a joint effort by 6 Federal agencies, 3 States, 6 Tribes, 36 cities, and water and power authorities with management authority for storage, delivery, and diversion of water; hydropower generation, marketing, and delivery; and land management or Native American Trust responsibilities along 400 mi (644 km) of the Lower Colorado River. In 2005, the Service VerDate Sep<11>2014 19:35 Apr 27, 2020 Jkt 250001 issued a 50-year incidental take permit to the Bureau of Reclamation to address take of 6 species listed under the Act and 21 other species from water delivery and power generation along the Lower Colorado River. At this time, the northern Mexican gartersnake was considered extirpated from the lower Colorado River and is not included in the LCR MSCP. In 2018, the Bureau of Reclamation amended the LCR MSCP to address effects to the northern Mexican gartersnake, which was subsequently found in 2015 at Beal Lake on Havasu National Wildlife Refuge (NWR), which is included in the permit area. The LCR MSCP includes conservation measures to avoid and minimize direct effects of implementing covered activities and the LCR MSCP on the northern Mexican gartersnake, and the potential effects of habitat loss expected to be minimized with the creation of 1,496 ac (605 ha) of replacement habitat. Lands within the Lower Colorado River Unit are covered by the LCR MSCP, but are all Federal lands and are not proposed for exclusion from critical habitat designation. However, conservation measures also include funding for habitat improvements on Planet Ranch within the Bill Williams River Subunit that could benefit the northern Mexican gartersnake. Pima County Sonoran Desert Conservation Plan and Multi-Species HCP Through its Sonoran Desert Conservation Plan (SDCP), Pima County, Arizona, has been implementing measures that benefit the northern Mexican gartersnake since 2001. In 2016, the Service issued a 30year incidental take permit for the Pima County Multi-Species Habitat Conservation Plan (MSHCP) to address incidental take from residential and non-residential development, renewable energy projects, relocation of utilities, ranch-management activities, recreation, and conservation and mitigation activities. The MSHCP is part of the SDCP and addresses 44 species, including the northern Mexican gartersnake. Under the SDCP and MSCP, Pima County manages lands that fall within proposed critical habitat for the northern Mexican gartersnake. There are 12 mi (19 km) of Cienega Creek within 543 ac (220 ha) of proposed critical habitat for northern Mexican gartersnake within the Cienega Creek Subunit of the Cienega Creek Subbasin Unit. The 3,797-acre Cienega Creek Natural Preserve is owned by the Pima County Flood Control District and is protected as a ‘‘unique riparian ecosystem’’ by a declaration of PO 00000 Frm 00034 Fmt 4701 Sfmt 4702 restrictions, covenants, and conditions by the Pima County Board of Supervisors in 1987 (Pima County Flood Control District 1987, p. 1). Management objectives of this preserve include preservation and protection of the perennial stream flow and existing riparian vegetation of Cienega Creek and its associated floodplain (Pima County Department of Transportation and Flood Control District 1994, p. 2–1). Protections to northern Mexican gartersnakes on this property exists through chapter 30 of title 16 of the Pima County Floodplain Management Ordinance (Pima County Code Ordinance Number 2010–FC5). Chapter 30 of the Floodplain Management Ordnance effectively minimizes habitat loss for northern Mexican gartersnake by protecting riparian habitat from development and requiring mitigation for disturbances to riparian habitat that exceed one-third of an acre. Pima County requested that lands within the Cienega Creek Natural Preserve remain in critical habitat for the northern Mexican gartersnake. Salt River Project Roosevelt and Horseshoe-Bartlett HCPs In 2003, the Service issued an incidental take permit for the SRP Roosevelt HCP (SRP 2002) to address incidental take from operation of Roosevelt Dam and Lake for four riparian bird species, including southwestern willow flycatcher, bald eagle, Yuma clapper rail, and western yellow-billed cuckoo. As part of its mitigation measures for these bird species under the Roosevelt HCP, SRP has acquired and will manage in perpetuity 471 ac (191 ha) of riparian and adjacent upland habitat offsite along the Gila and Verde Rivers, some of which may also confer benefits to the two gartersnakes (SRP 2002, p. 143; SRP 2013, p. 17). Subsequently in 2008, the Service issued another incidental take permit to SRP for the SRP Horseshoe-Bartlett HCP to address incidental take from the operation of Horseshoe and Bartlett reservoirs of listed species as well as both gartersnakes, which were not listed at the time of permit issuance. Mitigation measures in the Verde River watershed included in the HorseshoeBartlett HCP designed to benefit the two gartersnakes include reducing nonnative fish reproduction, recruitment, and movement at Horseshoe Reservoir; increasing native fish populations, distribution, and relative abundance in the Verde River; and working to maintain water flows in the Verde River above Horseshoe Reservoir through watershed management activities (SRP E:\FR\FM\28APP2.SGM 28APP2 Federal Register / Vol. 85, No. 82 / Tuesday, April 28, 2020 / Proposed Rules jbell on DSKJLSW7X2PROD with PROPOSALS2 2008, pp. 193–196). Mitigation also included acquisition and management in perpetuity of 50 ac (20 ha) of riparian habitat along the Verde River and 150 ac (61 ha) of riparian habitat offsite along the Gila River, some of which may benefit the two gartersnakes (SRP 2008, pp. 179–184). Private lands, as well as acquisitions or conservation easements made to date for both of SRP’s HCPs that fall within proposed critical habitat for northern Mexican gartersnake, include 515 ac (208 ha) of private lands in the Gila River and Duck Creek subunits, and 96 ac (39 ha) of private lands in the Verde River Subunit (SRP 2014, pp. 27– 30; SRP 2014a, p. 11). SRP-owned lands that fall within proposed critical habitat for narrow-headed gartersnake include 563 ac (228 ha) of the Gila River Subunit. Management actions on the Camp Verde Riparian Preserve property on the Verde River that may benefit the two gartersnakes include acquiring water rights; creating conservation easements; maintaining fencing around riparian areas, including log-jams that allow normal hydrologic processes to continue unimpeded while excluding livestock; planting native species above riparian areas to improve watershed conditions; and monitoring groundwater and stream flow levels. San Rafael Ranch Low-Effect HCP In 2016, the Service issued a 30-year incidental take permit for the San Rafael Ranch low-effect HCP (Harlow 2015) to address incidental take from cattle ranching operations of Sonoran tiger salamander, northern Mexican gartersnake, Gila chub, and Huachuca springsnail. Measures to minimize take emphasize the use of riparian pastures and dispersed grazing, maintaining existing and developing new livestock ponds that also serve as habitat for covered species including the northern Mexican gartersnake, and undertaking recovery actions for listed species in cooperation with the Service and AGFD. The incidental take permit boundary includes the 18,500-acre San Rafael Ranch. Portions of the Santa Cruz River, Unnamed drainage and Pasture 9 Tank, and Unnamed drainage and Sheehy Spring subunits (116 ac (47 ha)) of proposed critical habitat for northern Mexican gartersnake fall within the incidental take permit boundary. Implementation of winter grazing only in riparian pastures along the Santa Cruz River and managed grazing of upland pastures would maintain habitat for northern Mexican gartersnakes. Maintaining fencing and managing trespass cattle limits grazing of riparian pastures to the non-growing season and lessens impacts to proposed critical VerDate Sep<11>2014 19:35 Apr 27, 2020 Jkt 250001 habitat. Maintenance of stock tanks will also help address nonnative predator populations in proposed critical habitat. Tribal Lands Several Executive Orders, Secretarial Orders, and policies relate to working with Tribes. These guidance documents generally confirm our trust responsibilities to Tribes, recognize that Tribes have sovereign authority to control tribal lands, emphasize the importance of developing partnerships with tribal governments, and direct the Service to consult with Tribes on a government-to-government basis. A joint Secretarial Order that applies to both the Service and the National Marine Fisheries Service (NMFS), Secretarial Order 3206, American Indian Tribal Rights, Federal–Tribal Trust Responsibilities, and the Endangered Species Act (June 5, 1997) (S.O. 3206), is the most comprehensive of the various guidance documents related to tribal relationships and Act implementation, and it provides the most detail directly relevant to the designation of critical habitat. In addition to the general direction discussed above, S.O. 3206 explicitly recognizes the right of Tribes to participate fully in the listing process, including designation of critical habitat. The Order also states, ‘‘Critical habitat shall not be designated in such areas unless it is determined essential to conserve a listed species. In designating critical habitat, the Services shall evaluate and document the extent to which the conservation needs of the listed species can be achieved by limiting the designation to other lands.’’ In light of this instruction, when we undertake a discretionary 4(b)(2) exclusion analysis, we will always consider exclusions of tribal lands under section 4(b)(2) of the Act prior to finalizing a designation of critical habitat, and will give great weight to tribal concerns in analyzing the benefits of exclusion. However, S.O. 3206 does not preclude us from designating tribal lands or waters as critical habitat, nor does it state that tribal lands or waters cannot meet the Act’s definition of ‘‘critical habitat.’’ We are directed by the Act to identify areas that meet the definition of ‘‘critical habitat’’ (i.e., areas occupied at the time of listing that contain the essential physical or biological features that may require special management or protection and unoccupied areas that are essential to the conservation of a species), without regard to landownership. While S.O. 3206 provides important direction, it PO 00000 Frm 00035 Fmt 4701 Sfmt 4702 23641 expressly states that it does not modify the Secretaries’ statutory authority. Fort Apache Native Fish Management Plan The White Mountain Apache Tribe’s Fort Apache Indian Reservation (Fort Apache) encompasses approximately 1,680,000 ac (679,872 ha) in east-central Arizona. Fort Apache includes 6 percent of the Black River Subbasin Unit (92 ac (37 ha)) and 33 percent of Canyon Creek Unit (77 ac (31 ha)) of proposed critical habitat for narrow-headed gartersnake. The Salt River and Black River serve as the boundary between Fort Apache and the San Carlos Apache Reservations. In May 2014, the White Mountain Apache Tribe and the Service drafted a native fish’s management plan for Fort Apache that includes the federally endangered loach minnow, federally threatened Apache trout, and four other native fish species currently extant on Fort Apache (White Mountain Apache Tribe and Service 2014, p. 2). This plan supersedes their 2000 Loach Minnow Management Plan (White Mountain Apache Tribe 2000, entire). The draft 2014 management plan identifies several Tribal regulation and management efforts they think are beneficial to loach minnow and would also confer benefits to the gartersnakes, including Resolution 89–149, which designates streams and riparian zones as Sensitive Fish and Wildlife areas, requiring that authorized programs ensure these zones remain productive for fish and wildlife. The White Mountain Apache Tribe additionally adopted a Water Quality Protection Ordinance in 1999 to ‘‘promote the health of Tribal waters and the people, plants and wildlife that depend on them through holistic management and sustainable use.’’ The draft 2014 management plan also includes an objective to identify Native Fish Management Units within each of the watersheds on Fort Apache and develop initial management recommendations for each Native Fish Management Unit, considering native fish and aquatic and riparian obligates, including, but not limited to, species such as leopard frogs and gartersnakes (White Mountain Apache Tribe and AFWCO 2014, p. 21). San Carlos Apache Tribe Fishery Management Plan The San Carlos Apache Reservation encompasses approximately 1,850,000 ac (748,668 ha) in east-central Arizona. This reservation includes 6 percent (102 ac (41 ha)) of the Black River Subbasin Unit and 70 percent (236 ac (96 ha)) of the Eagle Creek Unit of proposed critical habitat for narrow-headed gartersnake. E:\FR\FM\28APP2.SGM 28APP2 23642 Federal Register / Vol. 85, No. 82 / Tuesday, April 28, 2020 / Proposed Rules The Salt River and Black River serve as the boundary between the San Carlos Apache Reservation and Fort Apache. The San Carlos Apache Tribe Fishery Management Plan (FMP; San Carlos Apache Tribe 2005, entire) was adopted in 2005, via Tribal Resolution SEP–05– 178. This management plan addresses both sportfish and native fish management on the San Carlos Apache Reservation. Although sportfish have not been intentionally stocked in streams on the reservation since 1975, sportfish continue to be stocked in lentic waters including lakes, ponds, and stocktanks throughout the San Carlos Apache Reservation. The FMP has several goals relevant to native fish management, which may confer benefits to the gartersnakes by supporting conservation of their prey species. These goals include development and implementation of integrated, watershed-based approaches to fishery resource management; conserving, enhancing, and maintaining existing native fish populations and their habitats as part of the natural diversity of the San Carlos Apache Reservation, and preventing, minimizing, or mitigating adverse impacts to all native fishes, especially threatened or endangered species, and their habitats when consistent with the Reservation as a permanent home and abiding place for San Carlos Apache Tribal members; restoring extirpated native fishes and degraded natural habitats when appropriate and economically feasible; increasing Tribal awareness of native fish conservation and values; and aggressively pursuing funding adequate to support all Tribal conservation and management activities for all native fishes and their habitats (San Carlos Apache Tribe 2005, pp. 63–71). Yavapai-Apache Nation Tribal Resolution 46–2006 The Yavapai-Apache Nation includes 207 ac (84 ha) of proposed critical habitat for northern Mexican gartersnake in the Verde River Subunit. Yavapai-Apache Nation approved Tribal Resolution 46–2006, ‘‘confirming and declaring a riparian conservation corridor and management plan for the Verde River’’ that affords protections to both gartersnakes. This resolution requires the Yavapai-Apache Nation to ‘‘preserve the physical and biological features found within the riparian corridor of the Verde River essential to native wildlife species, including species listed as endangered or threatened by the federal government under the Endangered Species Act’’ (Yavapai-Apache Nation 2006, p. 1). The riparian corridor is defined as a 300-ft (91-m) buffer from centerline of the Verde River on their lands (YavapaiApache Nation 2006, p. 1). Within this corridor, the Yavapai-Apache resolves to coordinate with the Service on actions that may adversely impact habitat essential to the conservation and/or recovery of federally listed species (Yavapai-Apache Nation 2006, p. 2). In addition, stocking of nonnative fishes is specifically prohibited by the resolution (Yavapai-Apache Nation 2006, p. 2). We scheduled a meeting with these tribes and other interested tribes prior to publication of this revised proposed rule to give them as much time as possible to comment. Summary of Exclusion We Are Considering Based on the information provided by entities seeking exclusion, as well as any additional public comments we receive, we will evaluate whether certain lands in the proposed critical habitat are appropriate for exclusion from the final designation under section 4(b)(2) of the Act. If the analysis indicates that the benefits of excluding lands from the final designation outweigh the benefits of designating those lands as critical habitat, then the Secretary may exercise his discretion to exclude the lands from the final designation. The areas described above that we are considering excluding under section 4(b)(2) of the Act from the final critical habitat designation 7,405 ac (2,997 ha) for northern Mexican gartersnake and 1,072 ac (434 ha) for narrow-headed gartersnake, which represents 27 percent and 6 percent of the proposed designation for each gartersnake species, respectively. Tables 3a and 3b, below, provide approximate areas (ac, ha) of lands that meet the definition of critical habitat for each gartersnake species but are under our consideration for possible exclusion under section 4(b)(2) of the Act from the final critical habitat rule. Additionally, we will consider excluding any other areas where we determine that the benefits of exclusion outweigh the benefits of inclusion based upon the information we have when we finalize a critical habitat designation. TABLE 3a—AREAS IDENTIFIED FOR POSSIBLE EXCLUSION FOR THE NORTHERN MEXICAN GARTERSNAKE BY CRITICAL HABITAT UNIT AND SUBUNIT Unit subunit Landowner, property name Area in acres (hectares) Ownership type Portion of unit or subunit Upper Gila River Subbasin Unit Gila River ................................ Duck Creek ............................. Unit total being considered for exclusion. Freeport McMoRan (Freeport McMoRan Corporation management plans). Freeport McMoRan (Freeport McMoRan Corporation management plans). Private .................................... 500 (202) 48% Private .................................... 15 (6) 14% ......................................................................... ................................................ 515 (208) 45% Private .................................... 16 (6) 0.4% Private .................................... 96 (39) 2% Tribal ...................................... State ....................................... 207 (84) 142 (57) 5% 14% Verde River Subbasin Unit jbell on DSKJLSW7X2PROD with PROPOSALS2 Verde River ............................ Oak Creek .............................. VerDate Sep<11>2014 19:35 Apr 27, 2020 The Nature Conservancy, Verde Valley Preserve and Verde Valley property. Salt River Project, Camp Verde Riparian Preserve (Roosevelt and Horseshoe-Bartlett HCPs). Yavapai-Apache Nation ................................. Arizona Game and Fish Department, Bubbling Ponds Hatchery and Page Springs Hatchery (State Wildlife Action Plan). Jkt 250001 PO 00000 Frm 00036 Fmt 4701 Sfmt 4702 E:\FR\FM\28APP2.SGM 28APP2 23643 Federal Register / Vol. 85, No. 82 / Tuesday, April 28, 2020 / Proposed Rules TABLE 3a—AREAS IDENTIFIED FOR POSSIBLE EXCLUSION FOR THE NORTHERN MEXICAN GARTERSNAKE BY CRITICAL HABITAT UNIT AND SUBUNIT—Continued Area in acres (hectares) Unit subunit Landowner, property name Ownership type Unit total being considered for exclusion. ......................................................................... ................................................ Portion of unit or subunit 460 (186) 9% Bill Williams River Subbasin Unit Bill Williams River ................... Arizona Game and Fish Department, Planet Ranch Conservation and Wildlife Area (State Wildlife Action Plan). State ....................................... 329 (133) 18% Unit total being considered for exclusion. ......................................................................... ................................................ 329 (133) 8% Cienega Creek Subbasin Unit Cienega Creek ....................... Pima County, Cienega Creek Natural Preserve (Pima County MSCP). Private .................................... 543 (220) 34% Unit total being considered for exclusion. ......................................................................... ................................................ 543 (220) 27% Private .................................... 123 (50) 55% Private .................................... 91 (37) 57% Private .................................... 5 (2) 12% Private .................................... 20 (8) 80% Private .................................... ................................................ 0.07 (0.03) 238 (96) 100% 48% Upper Santa Cruz River Subbasin Unit Sonoita Creek ......................... Santa Cruz River .................... Unnamed Drainage and Pasture 9 Tank. Unnamed Drainage and Sheehy Spring. Unnamed Wildlife Pond .......... Unit total being considered for exclusion. The Nature Conservancy, Patagonia-Sonoita Creek Preserve. San Rafael Cattle Company, San Rafael Ranch (San Rafael Ranch Low-effect HCP). San Rafael Cattle Company, San Rafael Ranch (AGFD’s SHA, San Rafael Ranch Low Effect HCP). San Rafael Cattle Company, San Rafael Ranch (AGFD’s SHA, San Rafael Ranch Low Effect HCP). Private Ranch (AGFD’s SHA) ........................ ......................................................................... Upper San Pedro River Subbasin Unit San Pedro River (Fort Huachuca requested exclusion). Babocomari River (Fort Huachuca requested exclusion). O’Donnell Canyon .................. jbell on DSKJLSW7X2PROD with PROPOSALS2 Post Canyon ........................... Unnamed Drainage and Finley Tank. Unit total being considered for exclusion. Grand Total ..................... VerDate Sep<11>2014 19:35 Apr 27, 2020 Bureau of Land Management, San Pedro Riparian National Conservation Area (national security). Private (national security) .............................. Bureau of Land Management, San Pedro Riparian National Conservation Area (national security). Arizona State Land Department (national security). Private (national security) .............................. National Audubon Society, Appleton-Whittell Research Ranch (AGFD’s SHA). The Nature Conservancy, Canelo Hills Preserve. National Audubon Society, Appleton-Whittell Research Ranch (AGFD’s SHA). Private Ranch (AGFD’s SHA) ........................ National Audubon Society, Appleton-Whittell Research Ranch (AGFD’s SHA). ......................................................................... Federal ................................... 4,496 (1,820) 88% Private .................................... Federal ................................... 215 (87) 195 (79) 4% 49% State ....................................... 8 (3) 2% Private .................................... Private .................................... 199 (81) 173 (70) 49% 72% Private .................................... 1.8 (0.7) 0.8 Private .................................... 15 (6) 19% Private .................................... Private .................................... 15 (6) 3 (1) 19% 100% ................................................ 5,320 (2,152) 91% ......................................................................... ................................................ 7,405 (2,997) 27% Jkt 250001 PO 00000 Frm 00037 Fmt 4701 Sfmt 4702 E:\FR\FM\28APP2.SGM 28APP2 23644 Federal Register / Vol. 85, No. 82 / Tuesday, April 28, 2020 / Proposed Rules TABLE 3b—AREAS CONSIDERED FOR EXCLUSION FOR THE NARROW-HEADED GARTERSNAKE BY CRITICAL HABITAT UNIT AND SUBUNIT Unit subunit Landowner, property name Area in acres (hectares) Ownership type Portion of unit or subunit Upper Gila River Subbasin Unit Gila River ................................ Freeport McMoRan (Freeport McMoRan Corporation management plans). Private .................................... 563 (228) 10% Unit total being considered for exclusion. ......................................................................... ................................................ 563 (228) 10% Eagle Creek Unit Eagle Creek ............................ San Carlos Apache Tribe ............................... Tribal ...................................... 236 (96) 70% Unit total being considered for exclusion. ......................................................................... ................................................ 236 (96) 70% 55 (22) 7% Black River Subbasin Unit Black River ............................. Bear Wallow Creek ................ Reservation Creek .................. Unit total being considered for exclusion. *San Carlos Apache Tribe ............................. Tribal ...................................... White Mountain Apache Tribe ....................... San Carlos Apache Tribe ............................... White Mountain Apache Tribe ....................... White Mountain Apache Tribe ....................... Tribal Tribal Tribal Tribal ...................................... ...................................... ...................................... ...................................... 56 (23) 48 (19) <.01 (<.01) 36 (15) 7% 27% <.01% 27% ......................................................................... ................................................ 195 (79) 12% Canyon Creek Unit Canyon Creek ........................ White Mountain Apache Tribe ....................... Tribal ...................................... 77 (31) 33% Unit total being considered for exclusion. ......................................................................... ................................................ 77 (31) 33% Grand Total ..................... ......................................................................... ................................................ 1,072 (434) 6% We specifically request comments on the inclusion or exclusion of such areas in our final designation of critical habitat for the northern Mexican gartersnake and narrow-headed gartersnake (see Public Comments under Request for Information, above). 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. Required Determinations Regulatory Planning and Review (Executive Orders 12866 and 13563) jbell on DSKJLSW7X2PROD with PROPOSALS2 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 VerDate Sep<11>2014 19:35 Apr 27, 2020 Jkt 250001 Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget will review all significant rules. OIRA has determined that this rule is not significant. Executive Order (E.O.) 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, PO 00000 Frm 00038 Fmt 4701 Sfmt 4702 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 proposed rule in a manner consistent with these requirements. Regulatory Flexibility Act (5 U.S.C. 601 et seq.) Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effects of the rule on small entities (i.e., small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of the agency certifies the rule will not have a significant economic impact E:\FR\FM\28APP2.SGM 28APP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 Federal Register / Vol. 85, No. 82 / Tuesday, April 28, 2020 / Proposed Rules 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. Under the RFA, as amended, and as understood in the light of recent court decisions, Federal agencies are required to evaluate the potential incremental impacts of rulemaking only 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 if we adopt this revised proposed critical habitat designation. There is no requirement under the RFA to evaluate the potential impacts to entities not directly regulated. Moreover, Federal agencies VerDate Sep<11>2014 19:35 Apr 27, 2020 Jkt 250001 are not small entities. Therefore, because no small entities would be directly regulated by this rulemaking, the Service certifies that, if made final as proposed, the revised proposed critical habitat designation will not have a significant economic impact on a substantial number of small entities. In summary, we have considered whether this revised 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 made final, the revised proposed critical habitat designation will not have a significant economic impact on a substantial number of small business entities. Therefore, an initial regulatory flexibility analysis is not required. Executive Order 13771—Reducing Regulation and Controlling Regulatory Costs This proposed rule is not an Executive Order (E.O.) 13771 (‘‘Reducing Regulation and Controlling Regulatory Costs’’) (82 FR 9339, February 3, 2017) regulatory action because this rule is not significant under E.O. 12866. 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 proposed critical habitat designation would significantly affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action, and no Statement of Energy Effects is required. Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.) In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.), we make the following finding: (1) This proposed 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. 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 PO 00000 Frm 00039 Fmt 4701 Sfmt 4702 23645 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 nonFederal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Furthermore, to the extent that non-Federal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply, nor would critical habitat shift the costs of the large entitlement programs listed above onto State governments. (2) We do not think that this rule would significantly or uniquely affect small governments. The lands being proposed for critical habitat designation are owned by Pima County, private landowners, Tribes, the States of New Mexico and Arizona, and the Federal Government (U.S. Forest Service, National Park Service, Bureau of Land Management, and U.S. Fish and E:\FR\FM\28APP2.SGM 28APP2 23646 Federal Register / Vol. 85, No. 82 / Tuesday, April 28, 2020 / Proposed Rules Wildlife Service). In addition, based in part on an analysis conducted for the previous proposed designation of critical habitat and extrapolated to this designation, we do not expect this rule to significantly or uniquely affect small governments. Small governments will be affected only to the extent that any programs or actions requiring or using Federal funds, permits, or other authorized activities must ensure that their actions will not adversely affect the critical habitat. Further, we do not believe that this rule would significantly or uniquely affect small governments because it will not produce a Federal mandate of $100 million or greater in any year, that is, it is not a ‘‘significant regulatory action’’ under the Unfunded Mandates Reform Act. The designation of critical habitat imposes no obligations on State or local governments and, as such, a Small Government Agency Plan is not required. Therefore, a Small Government Agency Plan is not required. jbell on DSKJLSW7X2PROD with PROPOSALS2 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 northern Mexican gartersnake and narrow-headed gartersnake 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 for the proposed designation of critical habitat for northern Mexican gartersnake and narrow-headed gartersnake, and it concludes that, if adopted, this designation of critical habitat does not pose significant takings implications for lands within or affected by the designation. VerDate Sep<11>2014 19:35 Apr 27, 2020 Jkt 250001 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. From a federalism perspective, the designation of critical habitat directly affects only the responsibilities of Federal agencies. The Act imposes no other duties with respect to critical habitat, either for States and local governments, or for anyone else. As a result, the proposed rule does not have substantial direct effects either on the States, or on the relationship between the national government and the States, or on the distribution of powers and responsibilities among the various levels of government. The proposed designation may have some benefit to these governments because the areas that contain the features essential to the conservation of the species are more clearly defined, and the physical or biological features of the habitat necessary for the conservation of the species are specifically identified. This information does not alter where and what federally sponsored activities may occur. However, it may assist State and local governments in long-range planning because they 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) of the Act 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 would not unduly burden the judicial system and that it meets the requirements of sections 3(a) and 3(b)(2) of the Order. We have proposed designating critical habitat in accordance with the provisions of the PO 00000 Frm 00040 Fmt 4701 Sfmt 4702 Act. To assist the public in understanding the habitat needs of the species, this proposed rule identifies the elements of physical or biological features essential to the conservation of the species. The proposed designated areas of critical habitat are presented on maps, 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 information collection requirements, and a submission to the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) is not required. We may not conduct or sponsor and you are not required to respond to a collection of information unless it displays a currently valid OMB control number. National Environmental Policy Act (42 U.S.C. 4321 et seq.) It is our position that, outside the jurisdiction of the U.S. Court of Appeals for the Tenth Circuit, we do not need to prepare environmental analyses pursuant to the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.) in connection with designating critical habitat under the Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244). This position was upheld by the U.S. Court of Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)). However, when the range of the species includes States within the Tenth Circuit, such as that of northern Mexican and narrow-headed gartersnakes, under the Tenth Circuit ruling in Catron County Board of Commissioners v. U.S. Fish and Wildlife Service, 75 F.3d 1429 (10th Cir. 1996), we undertake a NEPA analysis for critical habitat designation. We invite the public to comment on the extent to which this proposed critical habitat designation may have a significant impact on the human environment, or fall within one of the categorical exclusions for actions that have no individual or cumulative effect on the quality of the human environment. 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 E:\FR\FM\28APP2.SGM 28APP2 23647 Federal Register / Vol. 85, No. 82 / Tuesday, April 28, 2020 / Proposed Rules 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 federally recognized 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 tribal lands in Arizona included in this proposed designation of critical habitat are the lands of the White Mountain Apache Tribe, San Carlos Apache Tribe, and Yavapai Apache Nation. We used the criteria described above under Criteria Used To Identify Critical Habitat to identify tribal lands that are occupied by the northern Mexican and narrow-headed gartersnakes that contain the features essential for the conservation of these species. We began government-togovernment consultation with these tribes on November 29, 2011, in a prenotification letter informing the tribes that we had begun an evaluation of the northern Mexican and narrow-headed Common name gartersnakes for listing purposes under the Act. We will consider these areas for exclusion from the final critical habitat designation to the extent consistent with the requirements of section 4(b)(2) of the Act. We sent notification letters on March 12, 2013, to each tribe that described the exclusion process under section 4(b)(2) of the Act and invited them to meet to discuss the listing process and engage in conversation with us about the proposal to the extent possible without disclosing predecisional information. During an April 2, 2019, coordination meeting with these tribes, we informed them that we were revising the proposed critical habitat designation for the two gartersnakes and would have meetings with them as early as legally possible regarding the revisions. We plan to meet with these tribes and any other interested tribes in early April 2020 so that we can provide ample time to comment. We will continue to work with tribal entities during the development of a final rule for the designation of critical habitat for the northern Mexican and narrow-headed gartersnakes References Cited A complete list of references cited in this rulemaking is available on the internet at https://www.regulations.gov and upon request from the Arizona Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT). Scientific name * * Where listed * * Authors The primary authors of this proposed rulemaking 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 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. 2. Amend § 17.11(h) by revising the entries for ‘‘Gartersnake, narrowheaded’’ and ‘‘Gartersnake, northern Mexican’’ under REPTILES in the List of Endangered and Threatened Wildlife to read as follows: ■ § 17.11 Endangered and threatened wildlife. * * * (h) * * * Status * * * Listing citations and applicable rules * * REPTILES * * Gartersnake, narrow-headed ... * Thamnophis rufipunctatus ...... * * Wherever found ...................... T Gartersnake, northern Mexican Thamnophis eques megalops Wherever found ...................... T * * * 3. In § 17.95, amend paragraph (c) by adding, in the same alphabetical order that the species appear in the table at § 17.11(h), entries for ‘‘Narrow-headed Gartersnake (Thamnophis rufipunctatus)’’ and ‘‘Northern Mexican Gartersnake (Thamnophis eques megalops)’’ to read as follows: jbell on DSKJLSW7X2PROD with PROPOSALS2 ■ § 17.95 Critical habitat—fish and wildlife. * * * (c) Reptiles. * * * VerDate Sep<11>2014 * * * * 19:35 Apr 27, 2020 Jkt 250001 * * Narrow-Headed Gartersnake (Thamnophis rufipunctatus) (1) Critical habitat units are depicted for Apache, Coconino, Gila, Graham, Greelee, and Yavapai Counties in Arizona, and Catron, Grant, and Hidalgo Counties in New Mexico, on the maps in this entry. (2) Within these areas, the physical or biological features essential to the conservation of narrow-headed gartersnake consist of the following components: PO 00000 Frm 00041 Fmt 4701 Sfmt 4702 * * 79 FR 38677, 7/8/2014; 50 CFR 17.95(c).CH 79 FR 38677, 7/8/2014; 50 CFR 17.42(g);4d 50 CFR 17.95(c).CH * * (i) Perennial streams or spatially intermittent streams that provide both aquatic and terrestrial habitat that allows for immigration, emigration, and maintenance of population connectivity of narrow-headed gartersnakes and contain: (A) Pools, riffles, and cobble and boulder substrate, with low amount of fine sediment and substrate embeddedness; (B) Organic and natural inorganic structural features (e.g., cobble bars, rock piles, large boulders, logs or E:\FR\FM\28APP2.SGM 28APP2 23648 Federal Register / Vol. 85, No. 82 / Tuesday, April 28, 2020 / Proposed Rules jbell on DSKJLSW7X2PROD with PROPOSALS2 stumps, aquatic and wetland vegetation, logs, and debris jams) in the stream channel for basking, thermoregulation, shelter, prey base maintenance, and protection from predators; (C) Water quality that is absent of pollutants or, if pollutants are present, at levels low enough such that recruitment of narrow-headed gartersnakes is not inhibited; and (D) Terrestrial habitat within 89 feet (27 meters) of the active stream channel that includes boulder fields, rocks, and rock structures containing cracks and crevices, small mammal burrows, downed woody debris, and vegetation for thermoregulation, shelter sites, and protection from predators. (ii) Hydrologic processes that maintain aquatic and riparian habitat through: (A) A natural flow regime that allows for periodic flooding, or if flows are modified or regulated, a flow regime that allows for the movement of water, sediment, nutrients, and debris through the stream network, as well as maintenance of native fish populations; and (B) Physical hydrologic and geomorphic connection between the active stream channel and its adjacent terrestrial areas. (iii) Prey base of native fishes, or softrayed, nonnative fish species. VerDate Sep<11>2014 19:35 Apr 27, 2020 Jkt 250001 (iv) An absence of nonnative predators, such as fish species of the families Centrarchidae and Ictaluridae, bullfrogs, and crayfish, or occurrence of nonnative predators at low enough densities such that recruitment of narrow-headed gartersnakes is not inhibited and maintenance of viable prey populations is still occurring. (v) Elevations of 2,300 to 8,200 feet (700 to 2,500 meters). (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 the effective date of this rule. (4) Critical habitat map units. Data layers defining map units included the U.S. Geological Survey’s 7.5’ quadrangles, National Hydrography Dataset and National Elevation Dataset; the Service’s National Wetlands Inventory dataset; and aerial imagery from Google Earth Pro. Line locations for lotic streams (flowing water) and drainages are depicted as the ‘‘Flowline’’ feature class from the National Hydrography Dataset geodatabase. The active channel along a stream is depicted as the ‘‘Wetlands’’ feature class from the Service’s National Wetlands Inventory dataset. Any discrepancies between the ‘‘Flowline’’ and ‘‘Wetlands’’ feature classes were PO 00000 Frm 00042 Fmt 4701 Sfmt 4702 resolved using aerial imagery from Google Earth Pro. Elevation range is masked using the ‘‘Elev_Contour’’ feature class of the National Elevation Dataset. The administrative boundaries for Arizona and New Mexico were obtained from the Arizona Land Resource Information Service and New Mexico Resource Geographic Information System, respectively. This includes the most current (as of the effective date of this rule) geospatial data available for land ownership, counties, States, and streets. Locations depicting critical habitat are expressed as decimal degree latitude and longitude in the World Geographic Coordinate System projection using the 1984 datum (WGS84). The maps in this entry, as modified by any accompanying regulatory text, establish the boundaries of the critical habitat designation. The coordinates or plot points or both on which each map is based are available to the public at the Service’s internet site at https://www.fws.gov/southwest/es/ arizona/, at https://www.regulations.gov at Docket No. FWS–R2–ES–2020–0011, 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) Note: Index map follows: BILLING CODE P E:\FR\FM\28APP2.SGM 28APP2 (6) Unit 1: Upper Gila River Subbasin Unit, Grant and Hidalgo Counties, New Mexico. (i) General description: Unit 1 consists of 5,429 ac (2,197 ha) in Grant VerDate Sep<11>2014 19:35 Apr 27, 2020 Jkt 250001 and Hidalgo Counties, and is composed of lands in Federal (2,827 ac (1,144 ha)), State (278 ac (113 ha)), and private (2,323 ac (940 ha)) ownership in eight subunits west of the town of Glenwood, PO 00000 Frm 00043 Fmt 4701 Sfmt 4702 23649 north of Silver City, and South of Gila and Cliff. (ii) Map of Unit 1 follows: E:\FR\FM\28APP2.SGM 28APP2 EP28AP20.000</GPH> jbell on DSKJLSW7X2PROD with PROPOSALS2 Federal Register / Vol. 85, No. 82 / Tuesday, April 28, 2020 / Proposed Rules Federal Register / Vol. 85, No. 82 / Tuesday, April 28, 2020 / Proposed Rules (7) Unit 2: San Francisco River Subbasin Unit, Catron County, New Mexico. VerDate Sep<11>2014 19:35 Apr 27, 2020 Jkt 250001 (i) General description: Unit 2 consists of 4,905 ac (1,985 ha) in Catron County, and is composed of lands in Federal (2,753 ac (1,114 ha)) and private PO 00000 Frm 00044 Fmt 4701 Sfmt 4702 (2,152 ac (871 ha)) ownership in six subunits near the towns of Glenwood and Reserve. (ii) Map of Unit 2 follows: E:\FR\FM\28APP2.SGM 28APP2 EP28AP20.001</GPH> jbell on DSKJLSW7X2PROD with PROPOSALS2 23650 (8) Unit 3: Blue River Subbasin Unit, Greenlee County, Arizona, and Catron County, New Mexico. (i) General description: Unit 3 consists of 2,971 ac (1,202 ha) in VerDate Sep<11>2014 19:35 Apr 27, 2020 Jkt 250001 Greenlee County, Arizona, and Catron County, New Mexico, and is composed of lands in Federal (2,510 ac (1,016 ha)) and private (460 ac (186 ha)) ownership PO 00000 Frm 00045 Fmt 4701 Sfmt 4702 23651 in three subunits near the towns of Blue, Arizona, and Luna, New Mexico. (ii) Map of Unit 3 follows: E:\FR\FM\28APP2.SGM 28APP2 EP28AP20.002</GPH> jbell on DSKJLSW7X2PROD with PROPOSALS2 Federal Register / Vol. 85, No. 82 / Tuesday, April 28, 2020 / Proposed Rules Federal Register / Vol. 85, No. 82 / Tuesday, April 28, 2020 / Proposed Rules (9) Unit 4: Eagle Creek Unit, Graham and Greenlee Counties, Arizona. (i) General description: Unit 4 consists of 336 ac (136 ha) in Graham VerDate Sep<11>2014 19:35 Apr 27, 2020 Jkt 250001 and Greenlee Counties, and is composed of lands in Federal (99 ac (40 ha)), Tribal (236 ac (96 ha)), and private (1 ac PO 00000 Frm 00046 Fmt 4701 Sfmt 4702 (<1 ha)) ownership near the town of Morenci. (ii) Map of Unit 4 follows: E:\FR\FM\28APP2.SGM 28APP2 EP28AP20.003</GPH> jbell on DSKJLSW7X2PROD with PROPOSALS2 23652 (10) Unit 5: Black River Subbasin Unit, Apache, Graham, and Greenlee Counties, Arizona. (i) General description: Unit 5 consists of 1,607 ac (650 ha) in Apache, VerDate Sep<11>2014 19:35 Apr 27, 2020 Jkt 250001 Graham, and Greenlee Counties, and is composed of lands in Federal (1,414 ac (572 ha)) and Tribal (194 ac (78 ha)) ownership in six subunits near the PO 00000 Frm 00047 Fmt 4701 Sfmt 4702 23653 towns of Maverick and Hannigan Meadow. (ii) Map of Unit 5 follows: E:\FR\FM\28APP2.SGM 28APP2 EP28AP20.004</GPH> jbell on DSKJLSW7X2PROD with PROPOSALS2 Federal Register / Vol. 85, No. 82 / Tuesday, April 28, 2020 / Proposed Rules Federal Register / Vol. 85, No. 82 / Tuesday, April 28, 2020 / Proposed Rules (11) Unit 6: Canyon Creek Unit, Gila County, Arizona. (i) General description: Unit 6 consists of 232 ac (94 ha) in Gila VerDate Sep<11>2014 19:35 Apr 27, 2020 Jkt 250001 County, and is composed of lands in Federal (155 ac (63 ha)) and Tribal (77 PO 00000 Frm 00048 Fmt 4701 Sfmt 4702 ac (31 ha)) ownership southwest of the town of Heber. (ii) Map of Unit 6 follows: E:\FR\FM\28APP2.SGM 28APP2 EP28AP20.005</GPH> jbell on DSKJLSW7X2PROD with PROPOSALS2 23654 (12) Unit 7: Tonto Creek Subbasin Unit, Gila County, Arizona. (i) General description: Unit 7 consists of 1,390 ac (562 ha) in Gila VerDate Sep<11>2014 19:35 Apr 27, 2020 Jkt 250001 County, and is composed of lands in Federal (1,285 ac (520 ha)) and private (105 ac (42 ha)) ownership in three PO 00000 Frm 00049 Fmt 4701 Sfmt 4702 23655 subunits near the towns of Jakes Corner and Gisela. (ii) Map of Unit 7 follows: E:\FR\FM\28APP2.SGM 28APP2 EP28AP20.006</GPH> jbell on DSKJLSW7X2PROD with PROPOSALS2 Federal Register / Vol. 85, No. 82 / Tuesday, April 28, 2020 / Proposed Rules Federal Register / Vol. 85, No. 82 / Tuesday, April 28, 2020 / Proposed Rules (13) Unit 8: Verde River Subbasin Unit, Coconino and Yavapai Counties, Arizona. (i) General description: Unit 8 consists of 1,832 ac (741 ha) in VerDate Sep<11>2014 19:35 Apr 27, 2020 Jkt 250001 Coconino and Yavapai Counties, and is composed of lands in Federal (1,343 ac (544 ha)), State (51 ac (21 ha)), and private (437 ac (177 ha)) ownership in PO 00000 Frm 00050 Fmt 4701 Sfmt 4702 three subunits near the towns of Sedona and Perkinsville. (ii) Map of Unit 8 follows: E:\FR\FM\28APP2.SGM 28APP2 EP28AP20.007</GPH> jbell on DSKJLSW7X2PROD with PROPOSALS2 23656 Federal Register / Vol. 85, No. 82 / Tuesday, April 28, 2020 / Proposed Rules Northern Mexican Gartersnake (Thamnophis eques megalops) (1) Critical habitat units are depicted for La Paz, Mohave, Yavapai, Gila, Cochise, Santa Cruz, and Pima Counties in Arizona, and Grant County in New Mexico, on the maps in this entry. (2) Within these areas, the physical or biological features essential to the conservation of northern Mexican gartersnake consist of the following components: (i) Perennial or spatially intermittent streams that provide both aquatic and VerDate Sep<11>2014 19:35 Apr 27, 2020 Jkt 250001 terrestrial habitat that allows for immigration, emigration, and maintenance of population connectivity of northern Mexican gartersnakes and contain: (A) Slow-moving water (walking speed) with in-stream pools, off-channel pools, and backwater habitat; (B) Organic and natural inorganic structural features (e.g., boulders, dense aquatic and wetland vegetation, leaf litter, logs, and debris jams) within the stream channel for thermoregulation, shelter, foraging opportunities, and protection from predators; PO 00000 Frm 00051 Fmt 4701 Sfmt 4702 (C) Terrestrial habitat adjacent to the stream channel that includes riparian vegetation, small mammal burrows, boulder fields, rock crevices, and downed woody debris for thermoregulation, shelter, foraging opportunities, brumation, and protection from predators; and (D) Water quality that is absent of pollutants or, if pollutants are present, at levels low enough such that recruitment of northern Mexican gartersnakes is not inhibited. E:\FR\FM\28APP2.SGM 28APP2 EP28AP20.008</GPH> jbell on DSKJLSW7X2PROD with PROPOSALS2 BILLING CODE C 23657 23658 Federal Register / Vol. 85, No. 82 / Tuesday, April 28, 2020 / Proposed Rules jbell on DSKJLSW7X2PROD with PROPOSALS2 (ii) Hydrologic processes that maintain aquatic and terrestrial habitat through: (A) A natural flow regime that allows for periodic flooding, or if flows are modified or regulated, a flow regime that allows for the movement of water, sediment, nutrients, and debris through the stream network; and (B) Physical hydrologic and geomorphic connection between a stream channel and its adjacent riparian areas. (iii) Prey base of primarily native anurans, fishes, small mammals, lizards, and invertebrate species. (iv) An absence of nonnative fish species of the families Centrarchidae and Ictaluridae, bullfrogs (Lithobates catesbeianus), and/or crayfish (Orconectes virilis, Procambarus clarki, etc.), or occurrence of these nonnative species at low enough levels such that recruitment of northern Mexican gartersnakes is not inhibited and maintenance of viable prey populations is still occurring. (v) Elevations from 130 to 8,500 feet (40 to 2,590 meters). (vi) Lentic wetlands including offchannel springs, cienegas, and natural and constructed ponds (small earthen impoundment) with: (A) Organic and natural inorganic structural features (e.g., boulders, dense aquatic and wetland vegetation, leaf litter, logs, and debris jams) within the ordinary high water mark for thermoregulation, shelter, foraging opportunities, brumation, and protection from predators; VerDate Sep<11>2014 19:35 Apr 27, 2020 Jkt 250001 (B) Riparian habitat adjacent to ordinary high water mark that includes riparian vegetation, small mammal burrows, boulder fields, rock crevices, and downed woody debris for thermoregulation, shelter, foraging opportunities, and protection from predators; and (C) Water quality that is absent of pollutants or, if pollutants are present, at levels low enough such that recruitment of northern Mexican gartersnakes is not inhibited. (vii) Ephemeral channels that connect perennial or spatially interrupted perennial streams to lentic wetlands in southern Arizona where water resources are limited. (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 the effective date of this rule. (4) Critical habitat map units. Data layers defining map units included the U.S. Geological Survey’s 7.5’ quadrangles, National Hydrography Dataset, and National Elevation Dataset; the Service’s National Wetlands Inventory dataset; and aerial imagery from Google Earth Pro. Line locations for lotic streams (flowing water) and drainages are depicted as the ‘‘Flowline’’ feature class from the National Hydrography Dataset geodatabase. Point locations for lentic sites (ponds) are depicted as ‘‘NHDPoint’’ feature class from the National Hydrography Dataset geodatabase. Extent of riparian habitat PO 00000 Frm 00052 Fmt 4701 Sfmt 4702 surrounding lotic streams and lentic sites is depicted by the greater of the ‘‘Wetlands’’ and ‘‘Riparian’’ features classes of the Service’s national Wetlands Inventory dataset and further refined using aerial imagery from Google Earth Pro. Elevation range is masked using the ‘‘Elev_Contour’’ feature class of the National Elevation Dataset. Administrative boundaries for Arizona and New Mexico were obtained from the Arizona Land Resource Information Service and New Mexico Resource Geographic Information System, respectively. This includes the most current (as of the effective date of this rule) geospatial data available for land ownership, counties, States, and streets. Locations depicting critical habitat are expressed as decimal degree latitude and longitude in the World Geographic Coordinate System projection using the 1984 datum (WGS84). The maps in this entry, as modified by any accompanying regulatory text, establish the boundaries of the critical habitat designation. The coordinates or plot points or both on which each map is based are available to the public at the Service’s internet site at https://www.fws.gov/southwest/es/ arizona/, at https://www.regulations.gov at Docket No. FWS–R2–ES–2020–0011, 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) Note: Index map follows: BILLING CODE P E:\FR\FM\28APP2.SGM 28APP2 (6) Unit 1: Upper Gila River Subbasin Unit, Grant County, New Mexico. (i) General description: Unit 1 consists of 1,132 ac (458 ha) in Grant VerDate Sep<11>2014 19:35 Apr 27, 2020 Jkt 250001 County, and is composed of lands in State (22 ac (9 ha)), and private (1,110 PO 00000 Frm 00053 Fmt 4701 Sfmt 4702 23659 ac (449 ha)) ownership in two subunits near the towns of Cliff and Gila. (ii) Map of Unit 1 follows: E:\FR\FM\28APP2.SGM 28APP2 EP28AP20.009</GPH> jbell on DSKJLSW7X2PROD with PROPOSALS2 Federal Register / Vol. 85, No. 82 / Tuesday, April 28, 2020 / Proposed Rules Federal Register / Vol. 85, No. 82 / Tuesday, April 28, 2020 / Proposed Rules (7) Unit 2: Tonto Creek Unit, Gila County, Arizona. (i) General description: Unit 2 consists of 4,302 ac (1,741 ha) in Gila VerDate Sep<11>2014 19:35 Apr 27, 2020 Jkt 250001 County, and is composed of lands in Federal (3,337 ac (1,350 ha)), and PO 00000 Frm 00054 Fmt 4701 Sfmt 4702 private (966 ac (391 ha)) ownership near the towns of Gisela and Punkin Center. (ii) Map of Unit 2 follows: E:\FR\FM\28APP2.SGM 28APP2 EP28AP20.010</GPH> jbell on DSKJLSW7X2PROD with PROPOSALS2 23660 (8) Unit 3: Verde River Subbasin Unit, Yavapai County, Arizona. (i) General description: Unit 3 consists of 5,246 ac (2,123 ha) in VerDate Sep<11>2014 19:35 Apr 27, 2020 Jkt 250001 Yavapai County, and is composed of lands in Federal (856 ac (346 ha)), State (705 ac (285 ha)), Tribal (88 ac (36 ha), and private (3,597 ac (1,456 ha)) PO 00000 Frm 00055 Fmt 4701 Sfmt 4702 23661 ownership in three subunits near the towns of Cottonwood, Cornville, Page Springs, and Camp Verde. (ii) Map of Unit 3 follows: E:\FR\FM\28APP2.SGM 28APP2 EP28AP20.011</GPH> jbell on DSKJLSW7X2PROD with PROPOSALS2 Federal Register / Vol. 85, No. 82 / Tuesday, April 28, 2020 / Proposed Rules Federal Register / Vol. 85, No. 82 / Tuesday, April 28, 2020 / Proposed Rules (9) Unit 4: Bill Williams River Subbasin Unit, La Paz and Mohave Counties, Arizona. VerDate Sep<11>2014 19:35 Apr 27, 2020 Jkt 250001 (i) General description: Unit 4 consists of 4,049 ac (1,639 ha) in La Paz and Mohave Counties, and is composed of lands in Federal (2,121 ac (858 ha)), PO 00000 Frm 00056 Fmt 4701 Sfmt 4702 State (202 ac (82 ha)), and private (1,727 ac (699 ha)) ownership in three subunits near the towns of Parker and Signal. (ii) Map of Unit 4 follows: E:\FR\FM\28APP2.SGM 28APP2 EP28AP20.012</GPH> jbell on DSKJLSW7X2PROD with PROPOSALS2 23662 Federal Register / Vol. 85, No. 82 / Tuesday, April 28, 2020 / Proposed Rules VerDate Sep<11>2014 19:35 Apr 27, 2020 Jkt 250001 (i) General description: Unit 5 consists of 4,467 ac (1,808 ha) in Mojave County and is composed of lands in PO 00000 Frm 00057 Fmt 4701 Sfmt 4702 Federal ownership within the Havasu National Wildlife Refuge. (ii) Map of Unit 5 follows: E:\FR\FM\28APP2.SGM 28APP2 EP28AP20.013</GPH> jbell on DSKJLSW7X2PROD with PROPOSALS2 (10) Unit 5: Lower Colorado River Unit, Mojave County, Arizona. 23663 Federal Register / Vol. 85, No. 82 / Tuesday, April 28, 2020 / Proposed Rules (11) Unit 6: Arivaca Cienega Unit, Pima County, Arizona. (i) General description: Unit 6 consists of 211 ac (86 ha) in Pima VerDate Sep<11>2014 19:35 Apr 27, 2020 Jkt 250001 County and is composed of lands in Federal (149 ac (60 ha)), State (1 ac (<1 PO 00000 Frm 00058 Fmt 4701 Sfmt 4702 ha)), and private (62 ac (25 ha)) ownership near the town of Arivaca. (ii) Map of Unit 6 follows: E:\FR\FM\28APP2.SGM 28APP2 EP28AP20.014</GPH> jbell on DSKJLSW7X2PROD with PROPOSALS2 23664 (12) Unit 7: Cienega Creek Subbasin Unit, Pima County, Arizona. (i) General description: Unit 7 consists of 2,030 ac (821 ha) in Pima VerDate Sep<11>2014 19:35 Apr 27, 2020 Jkt 250001 County and is composed of lands in Federal (1,112 ac (451 ha)), State (366 ac (148 ha)), and private (550 ac (220 ha)) PO 00000 Frm 00059 Fmt 4701 Sfmt 4702 23665 ownership in four subunits near the towns of Tucson, Vail, and Sonoita. (ii) Map of Unit 7 follows: E:\FR\FM\28APP2.SGM 28APP2 EP28AP20.015</GPH> jbell on DSKJLSW7X2PROD with PROPOSALS2 Federal Register / Vol. 85, No. 82 / Tuesday, April 28, 2020 / Proposed Rules Federal Register / Vol. 85, No. 82 / Tuesday, April 28, 2020 / Proposed Rules (13) Unit 8: Upper Santa Cruz River Subbasin Unit, Santa Cruz and Cochise Counties, Arizona. VerDate Sep<11>2014 19:35 Apr 27, 2020 Jkt 250001 (i) General description: Unit 8 consists of 496 ac (201 ha) in Santa Cruz and Cochise Counties, and is composed of lands in Federal (45 ac (18 ha)), State PO 00000 Frm 00060 Fmt 4701 Sfmt 4702 (111 ac (45 ha)), and private (340 ac (138 ha)) ownership in eight subunits near the towns of Sonoita and Patagonia. (ii) Map of Unit 8 follows: E:\FR\FM\28APP2.SGM 28APP2 EP28AP20.016</GPH> jbell on DSKJLSW7X2PROD with PROPOSALS2 23666 (14) Unit 9: Upper San Pedro River Subbasin Unit, Cochise and Santa Cruz Counties, Arizona. (i) General description: Unit 9 consists of 5,850 ac (2,367 ha) in VerDate Sep<11>2014 19:35 Apr 27, 2020 Jkt 250001 Cochise and Santa Cruz Counties, and is composed of lands in Federal (5,197 ac (2,103 ha)), State (8 ac (3 ha)), and private (645 ac (261 ha)) ownership in PO 00000 Frm 00061 Fmt 4701 Sfmt 4702 23667 six subunits near the towns of Sierra Vista and Elgin. (ii) Map of Unit 9 follows: E:\FR\FM\28APP2.SGM 28APP2 EP28AP20.017</GPH> jbell on DSKJLSW7X2PROD with PROPOSALS2 Federal Register / Vol. 85, No. 82 / Tuesday, April 28, 2020 / Proposed Rules 23668 Federal Register / Vol. 85, No. 82 / Tuesday, April 28, 2020 / Proposed Rules * * * * * Aurelia Skipwith, Director, U.S. Fish and Wildlife Service. [FR Doc. 2020–08069 Filed 4–27–20; 8:45 am] BILLING CODE 4333–15–P VerDate Sep<11>2014 19:35 Apr 27, 2020 Jkt 250001 PO 00000 Frm 00062 Fmt 4701 Sfmt 9990 E:\FR\FM\28APP2.SGM 28APP2 EP28AP20.018</GPH> jbell on DSKJLSW7X2PROD with PROPOSALS2 BILLING CODE C

Agencies

[Federal Register Volume 85, Number 82 (Tuesday, April 28, 2020)]
[Proposed Rules]
[Pages 23608-23668]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-08069]

[[Page 23607]]

Vol. 85

Tuesday,

No. 82

April 28, 2020

Part II

Department of the Interior

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Fish and Wildlife Service

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50 CFR 17

Endangered and Threatened Wildlife and Plants; Designation of Critical
Habitat for the Northern Mexican Gartersnake and Narrow-Headed
Gartersnake; Proposed Rule

Federal Register / Vol. 85 , No. 82 / Tuesday, April 28, 2020 /
Proposed Rules

[[Page 23608]]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R2-ES-2020-0011; FF09E21000 FXES11110900000 201]
RIN 1018-BD96

Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for the Northern Mexican Gartersnake and Narrow-Headed
Gartersnake

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Revised proposed rule; request for public comments.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are revising
our proposed designation of critical habitat for the northern Mexican
gartersnake (Thamnophis eques megalops) and narrow-headed gartersnake
(Thamnophis rufipunctatus) under the Endangered Species Act, as amended
(Act). In total, approximately 27,784 acres (11,244 hectares) in La
Paz, Mohave, Yavapai, Gila, Cochise, Santa Cruz, and Pima Counties in
Arizona, and in Grant County in New Mexico, fall within the boundaries
of the revised proposed critical habitat designation for the northern
Mexican gartersnake; and 18,701 acres (7,568 hectares) in Greenlee,
Graham, Apache, Yavapai, Gila, and Coconino Counties in Arizona, as
well as in Grant, Hidalgo, and Catron Counties in New Mexico, fall
within the boundaries of the revised proposed critical habitat
designation for the narrow-headed gartersnake. We also announce the
availability of a draft economic analysis of the revised proposed
designation of critical habitat for northern Mexican and narrow-headed
gartersnakes. We request comments from all interested parties on this
revised proposed rule and the associated draft economic analysis.
Comments submitted on our July 10, 2013, proposed rule need not be
resubmitted as they will be fully considered in the preparation of the
final rule. If we finalize this rule as proposed, it would extend the
Act's protections to these species' critical habitat.

DATES: We will accept comments on this revised proposed rule or the
draft economic analysis that are received or postmarked on or before
June 29, 2020. 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 June 12, 2020.

ADDRESSES: You may submit comments by one of the following methods:
(1) Electronically: Go to the Federal eRulemaking Portal:
https://www.regulations.gov. In the Search box, enter FWS-R2-ES-
2020-0011, which is the docket number for this rulemaking. Then, click
on the Search button. On the resulting page, in the Search panel on the
left side of the screen, under the Document Type heading, check the
Proposed Rule box to locate this document. You may submit a comment by
clicking on ``Comment Now!''
(2) By hard copy: Submit by U.S. mail to: Public Comments
Processing, Attn: FWS-R2-ES-2020-0011, U.S. Fish and Wildlife Service,
MS: JAO/1N, 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 the Information Requested, below, for more information).
Availability of supporting materials: The draft economic analysis
is available at https://www.fws.gov/southwest/es/arizona/, at https://www.regulations.gov at Docket No. FWS-R2-ES-2020-0011, and at the
Arizona Ecological Services Field Office (see FOR FURTHER INFORMATION
CONTACT).
For the critical habitat designation, the coordinates or plot
points or both from which the maps are generated are included in the
administrative record and are available at https://www.fws.gov/southwest/es/arizona, at https://www.regulations.gov under Docket No.
FWS-R2-ES-2020-0011 and 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 included in the
preamble and/or at https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Jeff Humphry, 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. Persons who use a telecommunications
device for the deaf (TDD), may call the Federal Relay Service at 800-
877-8339.

SUPPLEMENTARY INFORMATION:

Executive Summary

Why we need to publish a rule. Critical habitat shall be
designated, to the maximum extent prudent and determinable, for any
species determined to be an endangered or threatened species under the
Act. Both gartersnakes are listed as threatened under the Act (79 FR
38678; July 8, 2014). Designations and revisions of critical habitat
can only be completed by issuing a rule.
What this document does. This is a revised proposed rule to
designate critical habitat for northern Mexican gartersnake and narrow-
headed gartersnake under the Act.
For reasons described later in this document, this revised proposed
rule reduces the proposed critical habitat designation from what we
proposed on July 10, 2013, as follows:
For the northern Mexican gartersnake, the proposed
designation is reduced from approximately 421,423 acres (170,544
hectares) to approximately 27,784 acres (11,244 hectares); and
For the narrow-headed gartersnake, the proposed
designation is reduced from approximately 210,189 acres (85,060
hectares) to approximately 18,701 acres (7,568 hectares).
The basis for our action. Section 4(a)(3) of the Act requires the
Secretary of the Interior (Secretary) to designate critical habitat
concurrent with listing to the maximum extent prudent and determinable.
Section 4(b)(2) of the Act states that the Secretary must make the
designation on the basis of the best scientific data available and
after taking into consideration the economic impact, the impact on
national security, and any other relevant impacts of specifying any
particular area as critical habitat. Section 3(5)(A) of the Act defines
critical habitat as (i) the specific areas within the geographical area
occupied by the species, at the time it is listed, on which are found
those physical or biological features (I) essential to the conservation
of the species and (II) which may require special management
considerations or protections; and (ii) specific areas outside the
geographical area occupied by the species at the time it is listed,
upon a determination by the Secretary that such areas are essential for
the conservation of the species.
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

[[Page 23609]]

the role of peer review of listing actions under the Act, we sought the
expert opinions of eight independent specialists on the July 10, 2013,
proposed rule to ensure that our critical habitat proposal was based on
scientifically sound data, assumptions, and analyses. We received
responses from three of the peer reviewers. We reviewed all comments we
received from the peer reviewers for substantive issues and new
information regarding critical habitat for the two gartersnakes. Peer
reviewers substantive comments have been addressed or incorporated into
this revised proposed rule. Because we will consider all comments and
information we receive during the comment period, our final
determinations may differ from this proposal. Such final decisions
would be a logical outgrowth of this proposal, as long as we: (1) Base
the decisions on the best scientific and commercial data available
after considering all of the relevant factors; (2) do not rely on
factors Congress has not intended us to consider; and (3) articulate a
rational connection between the facts found and the conclusions made,
including why we changed our conclusion.

Information Requested

We intend that any final action resulting from this revised
proposed rule will be based on the best scientific and commercial data
available and be as accurate and as effective as possible. Therefore,
we request comments or information from other concerned government
agencies, Native American tribes, the scientific community, industry,
or any other interested party concerning this revised 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 information to inform the following factors that the
regulations identify as reasons why designation of critical habitat may
be not prudent:
(a) The species is threatened by taking, collecting, or other human
activity and identification of critical habitat can be expected to
increase the degree of such threat to the species;
(b) The present or threatened destruction, modification, or
curtailment of a species' habitat or range is not a threat to the
species, or threats to the species' habitat stem solely from causes
that cannot be addressed through management actions resulting from
consultations under section 7(a)(2) of the Act;
(c) Areas within the jurisdiction of the United States provide no
more than negligible conservation value, if any, for a species
occurring primarily outside the jurisdiction of the United States; or
(d) No areas meet the definition of critical habitat.
(2) Specific information on:
(a) The amount and distribution of northern Mexican or narrow-
headed gartersnake habitat;
(b) Which areas, that were occupied at the time of listing (2013)
and that contain the physical or biological features essential to the
conservation of these species, should be included in the designation
and why;
(c) What period of time should be used to ascertain occupancy at
time of listing (2013) and why, and whether or not data from 1998 to
the present should be used in this determination;
(d) Whether it is appropriate to use information from a long-term
dispersal study on neonate, juvenile, and adult age classes of the
Oregon gartersnake (Thamnophis atratus hydrophilus) in a free-flowing
stream environment in northern California (Welsh et al. 2010, entire)
as a surrogate for juvenile northern Mexican gartersnake and narrow-
headed gartersnake dispersal;
(e) Special management considerations or protection that may be
needed in critical habitat areas we are proposing, including managing
for the potential effects of climate change; and
(f) What areas not occupied at the time of listing are essential
for the conservation of these species and why. We particularly seek
comments regarding:
(i) Whether occupied areas are inadequate for the conservation of
the species; and
(ii) Specific information that informs the determination of whether
unoccupied areas will, with reasonable certainty, contribute to the
conservation of the species and contain at least one physical or
biological feature essential to the conservation of the species.
(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 northern Mexican or narrow-headed gartersnake 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.
(7) Whether any specific areas we are proposing for critical
habitat designation should be considered for exclusion under section
4(b)(2) of the Act, and whether the benefits of potentially excluding
any specific area outweigh the benefits of including that area under
section 4(b)(2) of the Act, in particular for those lands discussed in
each critical habitat unit and in tables 3a and 3b, below.
(8) Whether we could improve or modify our approach to designating
critical habitat in any way to provide for greater public participation
and understanding, or to better accommodate public concerns and
comments.
Please include sufficient information with your submission (such as
scientific journal articles or other publications) to allow us to
verify any scientific or commercial information you include.
Please note that submissions merely stating support for, or
opposition to, the action under consideration without providing
supporting information, although noted, will not be considered in
making a determination, as section 4(b)(1)(A) of the Act directs that
determinations as to whether any species is an endangered or a
threatened species must be made ``solely on the basis of the best
scientific and commercial data available.''
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.
If you submit information via https://www.regulations.gov, your
entire submission--including any personal identifying information--will
be posted on the website. If your submission is made via a hardcopy
that includes personal identifying information, you may request at the
top of your document that we withhold this information from public
review. However, we cannot guarantee that we will be able to do so. We
will post all hardcopy submissions on https://www.regulations.gov.
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).

[[Page 23610]]

Public Hearing

Section 4(b)(5) of the Act provides for a public hearing on this
proposal, if requested. Requests must be received within 45 days after
the date of publication of this proposed rule in the Federal Register
(see DATES, above). Such requests must be sent to the address shown in
FOR FURTHER INFORMATION CONTACT. We will schedule a public hearing on
this proposal, if requested, and announce the date, time, and place of
the hearing, as well as how to obtain reasonable accommodations, in the
Federal Register and local newspapers at least 15 days before the
hearing. For the immediate future, we will provide these public
hearings using webinars that will be announced on the Service's
website, in addition to the Federal Register. The use of these virtual
public hearings is consistent with our regulation at 50 CFR
424.16(c)(3).

Previous Federal Actions

On July 10, 2013, we published in the Federal Register (78 FR
41550) a proposed rule to designate critical habitat for northern
Mexican gartersnake and narrow-headed gartersnake. In that proposed
rule, we proposed to designate approximately 421,423 acres (ac)
(170,544 hectares (ha)) as critical habitat in 14 units for the
northern Mexican gartersnake and 210,189 ac (85,060 ha) as critical
habitat in 6 units for the narrow-headed gartersnake. That proposal had
a 60-day comment period, ending September 9, 2013. We received
substantive comments during the comment period that have contributed to
the current revised proposed rule.

Background

It is our intent to discuss in this document only those topics
directly relevant to the designation of critical habitat for northern
Mexican gartersnake and narrow-headed gartersnake. For more information
on the two species, their corresponding habitats, and previous Federal
actions concerning the two species, refer to the proposed designation
of critical habitat published in the Federal Register on July 10, 2013
(78 FR 41550). The proposed rule is available online at https://www.regulations.gov (at Docket No. FWS-R2-ES-2020-0011) or from the
Arizona Ecological Services Field Office (see FOR FURTHER INFORMATION
CONTACT).
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. Designation also does not allow the government
or public to access private lands, nor does designation 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 Federal agency would be required to consult
with the Service under section 7(a)(2) of the Act. However, even if the
Service were to conclude that the proposed activity would result in
destruction or adverse modification of the critical habitat, the
Federal action agency and the landowner are not required to abandon the
proposed activity, or to restore or recover the species; instead, they
must 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 that occur in specific occupied areas,
we focus on the specific features that are essential to 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. When designating critical habitat, the Secretary will first
evaluate areas occupied by the species. The Secretary will only
consider unoccupied areas to be essential where a critical habitat
designation limited to geographical areas occupied by the species would
be inadequate to ensure the conservation of the species. In addition,
for an unoccupied area to be considered essential, the Secretary must
determine that there is a reasonable certainty both that the area will
contribute to the conservation of the

[[Page 23611]]

species and that the area contains one or more of those physical or
biological features essential to the conservation of the species.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific data available. Further, our Policy on
Information Standards Under the Endangered Species Act (published in
the Federal Register on July 1, 1994 (59 FR 34271)), the Information
Quality Act (section 515 of the Treasury and General Government
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)),
and our associated Information Quality Guidelines, provide criteria,
establish procedures, and provide guidance to ensure that our decisions
are based on the best scientific data available. They require our
biologists, to the extent consistent with the Act and with the use of
the best scientific data available, to use primary and original sources
of information as the basis for recommendations to designate critical
habitat.
When we are determining which areas should be designated as
critical habitat, our primary source of information is generally the
information developed during the listing process for the species.
Additional information sources may include any generalized conservation
strategy, criteria, or outline that may have been developed for the
species; the recovery plan for the species; articles in peer-reviewed
journals; conservation plans developed by States and counties;
scientific status surveys and studies; biological assessments; other
unpublished materials; or experts' opinions or personal knowledge.
Habitat is dynamic, and species may move from one area to another
over time. We recognize that critical habitat designated at a
particular point in time may not include all of the habitat areas that
we may later determine are necessary for the recovery of the species.
For these reasons, a critical habitat designation does not signal that
habitat outside the designated area is unimportant or may not be needed
for recovery of the species. Areas that are important to the
conservation of the species, both inside and outside the critical
habitat designation, will continue to be subject to: (1) Conservation
actions implemented under section 7(a)(1) of the Act; (2) regulatory
protections afforded by the requirement in section 7(a)(2) of the Act
for Federal agencies to ensure their actions are not likely to
jeopardize the continued existence of any endangered or threatened
species; and (3) the Act's prohibitions on taking any individual of the
species, including taking caused by actions that affect habitat.
Federally funded or permitted projects affecting listed species outside
their designated critical habitat areas may still result in jeopardy
findings in some cases. These protections and conservation tools will
continue to contribute to recovery of this species. Similarly, critical
habitat designations made on the basis of the best available
information at the time of designation will not control the direction
and substance of future recovery plans, habitat conservation plans
(HCPs), or other species conservation planning efforts, if new
information available at the time of these planning efforts calls for a
different outcome.

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 Secretary
may, but is not required to, determine that a designation would not be
prudent in the following circumstances:
(i) The species is threatened by taking or other human activity and
identification of critical habitat can be expected to increase the
degree of such threat to the species;
(ii) The present or threatened destruction, modification, or
curtailment of a species' habitat or range is not a threat to the
species, or threats to the species' habitat stem solely from causes
that cannot be addressed through management actions resulting from
consultations under section 7(a)(2) of the Act;
(iii) Areas within the jurisdiction of the United States provide no
more than negligible conservation value, if any, for a species
occurring primarily outside the jurisdiction of the United States;
(iv) No areas meet the definition of critical habitat; or
(v) The Secretary otherwise determines that designation of critical
habitat would not be prudent based on the best scientific data
available.
As discussed in the final listing rule published on July 8, 2014
(79 FR 38678), there is currently no imminent threat of take attributed
to collection or vandalism identified under Factor B for these species,
and identification and mapping of critical habitat is not expected to
initiate any such threat. In our proposed listing rule for the northern
Mexican gartersnake and narrow-headed gartersnake (78 FR 41500; July
10, 2013), we determined that the present or threatened destruction,
modification, or curtailment of habitat or range is a threat to these
species and that those threats in some way can be addressed by section
7(a)(2) consultation measures. The species occurs wholly in the
jurisdiction of the United States, and we are able to identify areas
that meet the definition of critical habitat. Therefore, because none
of the circumstances enumerated in our regulations at 50 CFR
424.12(a)(1) has been met and because there are no other circumstances
the Secretary has identified for which this designation of critical
habitat would be not prudent, we have determined that the designation
of critical habitat is prudent for these species.

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
Mexican gartersnake and narrow-headed gartersnake is determinable. Our
regulations at 50 CFR 424.12(a)(2) state that critical habitat is not
determinable when one or both of the following situations exist:
(i) Data sufficient to perform required analyses are lacking, or
(ii) The biological needs of the species are not sufficiently well
known to identify any area that meets the definition of ``critical
habitat.''
When critical habitat is not determinable, the Act allows the
Service an additional year to publish a critical habitat designation
(16 U.S.C. 1533(b)(6)(C)(ii)).
We reviewed the available information pertaining to the biological
needs of these species and habitat characteristics where these species
are located. This and other information represent the best scientific
and commercial data available and led us to conclude that the
designation of critical habitat is determinable for the Mexican
gartersnake and narrow-headed gartersnake.

Changes From Previously Proposed Critical Habitat

In this document, we are revising our proposed critical habitat
designations for the northern Mexican gartersnake and narrow-headed
gartersnake (78 FR 41550; July 10, 2013). We based these revisions on
information we received during the comment period on the July 10, 2013,
proposed rule, as well as on relevant scientific research conducted
after the publication of that proposed rule. After the publication of
the proposed rule, we found that there was

[[Page 23612]]

substantial scientific disagreement in the criteria we used to define
what areas were occupied at the time of listing for each species, and
the criteria we used to identify the lateral extent of critical habitat
boundaries. We also received additional information including locations
of each species at the time of listing, and the biological needs and
corresponding habitat characteristics of each species. We also note
that we no longer use primary constituent elements (PCEs) to identify
areas as critical habitat. The Service eliminated primary constituent
elements due to redundancy with the physical or biological features
(PBFs). This change in terminology is in accordance with a February 11,
2016 (81 FR 7414), rule to implement changes to the regulations for
designating critical habitat. We used the comments and additional
information to revise: (1) The PBFs that are essential to the
conservation of the species and which may require special management
considerations or protection under the Act, (2) the criteria used to
define the areas occupied at the time of listing for each species, and
(3) the criteria used to identify critical habitat boundaries. We then
apply the revised PBFs and identification criteria for each gartersnake
species along with additional information we received regarding where
these PBFs exist on the landscape to determine the geographic extent of
each critical habitat unit. Finally, we provide clarification of some
of the terms we used to define critical habitat for each species.

Primary Constituent Elements

Background
In accordance with section 3(5)(A)(i) of the Act and regulations at
50 CFR 424.12(b), in determining which areas we will designate as
critical habitat from within the geographical area occupied by the
species at the time of listing, we consider the physical or biological
features that are essential to the conservation of the species and that
may require special management considerations or protection. The
regulations at 50 CFR 424.02 define ``physical or biological features
essential to the conservation of the species'' as the features that
occur in specific areas and that are essential to support the life-
history needs of the species, including, but not limited to, water
characteristics, soil type, geological features, sites, 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. For example,
physical features essential to the conservation of the species 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 essential 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.
Previous Proposed Rule's Primary Constituent Elements
As stated above, we now use only PBFs that are essential to the
conservation of the species to describe critical habitat. We have
modified the PCEs from the previous critical habitat rule, which are
now PBFs in this rule. For your convenience, we are providing the PCEs
from the previous proposed critical habitat rule for you to compare the
changes.
The northern Mexican gartersnake's previous PCEs were:
(1) Aquatic or riparian habitat that includes:
a. Perennial or spatially intermittent streams of low to moderate
gradient that possess appropriate amounts of in-channel pools, off-
channel pools, or backwater habitat, and that possess a natural,
unregulated flow regime that allows for periodic flooding or, if flows
are modified or regulated, a flow regime that allows for adequate river
functions, such as flows capable of processing sediment loads; or
b. Lentic wetlands such as livestock tanks, springs, and cienegas;
and
c. Shoreline habitat with adequate organic and natural inorganic
structural complexity to allow for thermoregulation, gestation,
shelter, protection from predators, and foraging opportunities (e.g.,
boulders, rocks, organic debris such as downed trees or logs, debris
jams, small mammal burrows, or leaf litter); and
d. Aquatic habitat with characteristics that support a native
amphibian prey base, such as salinities less than 5 parts per thousand,
pH greater than or equal to 5.6, and pollutants absent or minimally
present at levels that do not affect survival of any age class of the
northern Mexican gartersnake or the maintenance of prey populations.
(2) Adequate terrestrial space (600 feet (ft) (182.9 meter (m))
lateral extent to either side of bankfull stage) adjacent to designated
stream systems with sufficient natural structural characteristics to
support life-history functions such as gestation, immigration,
emigration, and brumation (extended inactivity).
(3) A prey base consisting of viable populations of native
amphibian and native fish species.
(4) An absence of nonnative fish species of the families
Centrarchidae and Ictaluridae, bullfrogs (Lithobates catesbeianus),
and/or crayfish (Orconectes virilis, Procambarus clarki, etc.), or
occurrence of these nonnative species at low enough levels such that
recruitment of northern Mexican gartersnakes and maintenance of viable
native fish or soft-rayed, nonnative fish populations (prey) is still
occurring.
The narrow-headed gartersnake's previous PCEs were:
(1) Stream habitat, which includes:
a. Perennial or spatially intermittent streams with sand, cobble,
and boulder substrate and low or moderate amounts of fine sediment and
substrate embeddedness, and that possess appropriate amounts of pool,
riffle, and run habitat to sustain native fish populations;
b. A natural, unregulated flow regime that allows for periodic
flooding or, if flows are modified or regulated, a flow regime that
allows for adequate river functions, such as flows capable of
processing sediment loads;
c. Shoreline habitat with adequate organic and natural inorganic
structural complexity (e.g., boulders, cobble bars, vegetation, and
organic debris such as downed trees or logs, debris jams), with
appropriate amounts of shrub- and sapling-sized plants to allow for

[[Page 23613]]

thermoregulation, gestation, shelter, protection from predators, and
foraging opportunities; and
d. Aquatic habitat with no pollutants or, if pollutants are
present, levels that do not affect survival of any age class of the
narrow-headed gartersnake or the maintenance of prey populations.
(2) Adequate terrestrial space (600 ft (182.9 m) lateral extent to
either side of bankfull stage) adjacent to designated stream systems
with sufficient natural structural characteristics to support life-
history functions such as gestation, immigration, emigration, and
brumation.
(3) A prey base consisting of viable populations of native fish
species or soft-rayed, nonnative fish species.
(4) An absence of nonnative fish species of the families
Centrarchidae and Ictaluridae, bullfrogs (Lithobates catesbeianus),
and/or crayfish (Orconectes virilis, Procambarus clarki, etc.), or
occurrence of these nonnative species at low enough levels such that
recruitment of narrow-headed gartersnakes and maintenance of viable
native fish or soft-rayed, nonnative fish populations (prey) is still
occurring.
Stream Flow
In the July 10, 2013, proposed rule (78 FR 41550) under PCE 1 for
each species we use the terms ``perennial'' and ``spatially
intermittent,'' but we did not include a definition of perennial or
spatially intermittent flow.
In this revised proposed rule, we are defining the terms perennial,
spatially intermittent, and ephemeral as related to stream flow in PBF
1 for each gartersnake species. We are clarifying the spectrum of
stream flow regimes that provide stream habitat for each gartersnake
species based on stream flow definitions in Levick et al. (2008, p. 6)
and Stromberg et al. (2009, p. 330). A perennial stream or portion of a
stream is defined as having surface flow continuously year round,
except for infrequent periods of severe drought (Levick et al. 2008, p.
6). An intermittent stream is a stream where portions flow continuously
only at certain time of the year (Levick et al. 2008, p. 6). An
intermittent stream flows when it receives water from a spring, a
ground-water source, or a surface source (such as melting snow [i.e.,
seasonal]). During the dry seasons, frequently compounded by high
evapotranspiration of watershed vegetation, the ground water table may
drop below the elevation of the streambed, causing surface flow to
cease or reduce to a series of separate pools or short areas of flow
(Gordon et al. 2004, p. 51). An ephemeral stream is usually dry except
for brief periods immediately following precipitation, and its channel
is at all times above the groundwater table (Levick et al. 2008, p. 6).
In the range of each gartersnake species, many streams have reaches
with year-round water that are separated by intermittent or ephemeral
reaches of flow, as a result of differences in geology along the
stream. This variation of flow along a stream is common enough in the
Southwest that hydrologists use the terms ``interrupted,'' ``perennial
interrupted,'' or ``spatially intermittent'' to describe the spatial
segmentation of a dryland stream into reaches that are perennial,
intermittent, or ephemeral (Levick et al. 2008, p. 6; Stromberg et al.
2009, p. 330; Stromberg et al. 2013, p. 413). A stream that is
interrupted, perennially interrupted, or spatially intermittent has
perennial flow occurring in areas with shallow bedrock or high
hydraulic connectivity to regional aquifers, and ephemeral to
intermittent flow occurring in areas with deeper alluvial basins or
greater distance from the headwaters (Stromberg et al. 2009, p. 330).
The spatial patterning of wet and dry reaches on spatially intermittent
streams changes through time in response to climatic fluctuations and
to human modifications of the landscape (Stromberg et al. 2009, p.
331). In the remainder of this document, we use the terms
``perennial,'' ``spatially intermittent,'' and ``ephemeral'' in
accordance with the above definitions.
For northern Mexican gartersnake, streams that have perennial or
spatially intermittent flow can provide stream habitat for the species.
Ephemeral reaches of streams can serve as habitat for northern Mexican
gartersnakes, and are included in critical habitat as a separate PBF
(#7) if such reaches are between perennial sections of a stream that
were occupied at the time of listing. Streams that have ephemeral flow
over their entire length do not usually provide habitat for the
northern Mexican gartersnake, but are considered critical habitat when
they may serve as corridors between perennial streams and lentic
aquatic habitats including springs, cienegas, and natural or
constructed ponds (livestock tanks) that were occupied at the time of
listing.
For narrow-headed gartersnake, streams that have perennial flow or
limited spatially intermittent flow that is primarily perennial provide
stream habitat for the species. Narrow-headed gartersnakes have been
documented in pools and shallow portions of an intermittent flow reach
of the Blue River with wet areas separated by dry segments of 0.6 to
1.2 miles (1 to 2 kilometers (km)) in length (Cotten et al. 2017, p.
687). The wetted areas where gartersnakes were detected also had
abundant native prey of the narrow-headed gartersnake, indicating that
these areas may provide greater foraging opportunities during low flow
periods (Cotten et al. 2017, p. 687). However, ephemeral reaches of
streams do not provide habitat for narrow-headed gartersnakes. Within
the range of the narrow-headed gartersnake, perennial streams become
ephemeral as they approach their headwaters. However, narrow-headed
gartersnakes have not been found in these ephemeral reaches because
their fish prey base is likely absent and there is no upstream
perennial habitat, so the ephemeral reaches do not provide
connectivity.
Hydrologic Processes
In the previous proposed critical habitat rule, hydrologic
processes of a stream were captured in PCE 1 as part of a component of
aquatic habitat: ``[aquatic habitat that possesses] a natural,
unregulated flow regime that allows for periodic flooding or, if flows
are modified or regulated, a flow regime that allows for adequate river
functions, such as flows capable of processing sediment loads.'' These
processes are not the aquatic habitat or terrestrial habitat components
themselves, but the flow regime and physical hydrologic and geomorphic
connection that create and maintain a stream channel and continuously
redefine the boundary between aquatic and riparian habitat used by both
gartersnake species.
Both gartersnake species are dependent on terrestrial and aquatic
habitat for all of their life-history functions, so it is important
that hydrologic processes are present to maintain both the terrestrial
and aquatic components of habitat for both gartersnake species.
Therefore, we established a PBF (#2) for hydrological processes that is
separate from the aquatic and terrestrial habitat PBF (#1).
Lentic Wetlands
For northern Mexican gartersnake, we removed lentic wetlands
included in PCE 1 of the previous proposed rule and created a separate
PBF (#6) that includes the aquatic and terrestrial components of these
habitats.
Shoreline Habitat
In the previous proposed rule, shoreline habitat is included in PCE
1. For northern Mexican gartersnake, PCE 1 was ``aquatic or riparian
habitat'' and for the narrow-headed gartersnake it was ``stream
habitat.'' For both gartersnakes, we defined shoreline

[[Page 23614]]

habitat as areas having ``adequate organic and inorganic structural
complexity'' with examples such as boulders, rocks, and organic debris
for thermoregulation, gestation, shelter, protection from predators,
and foraging opportunities.
In this revised proposed rule, we are no longer including the term
``shoreline habitat,'' because shorelines fluctuate and can include
both terrestrial and aquatic habitat features used by either
gartersnake species. Instead, a component of PBF 1 focuses on the
organic and natural inorganic structural features important to each
gartersnake species that fall within the stream channel that
encompasses a fluctuating shoreline.
Water Quality
In the July 10, 2013, proposed rule, for the northern Mexican
gartersnake under PCE 1, we state: ``Aquatic habitat with
characteristics that support a native amphibian prey base, such as
salinities less than 5 parts per thousand, pH greater than or equal to
5.6, and pollutants absent or minimally present at levels that do not
affect survival of any age class of the northern Mexican gartersnake or
the maintenance of prey populations'' (78 FR 41550, July 10, 2013, p.
78 FR 41584). In that proposed rule, for the narrow-headed gartersnake
under PCE 1, we state: ``Aquatic habitat with no pollutants or, if
pollutants are present, levels that do not affect survival of any age
class of the narrow-headed gartersnake or the maintenance of prey
populations'' (78 FR 41550, July 10, 2013, p. 78 FR 41601).
In this revised proposed rule, we are removing the specific
salinity and pH requirement for habitat characteristics that support a
native amphibian prey base for the northern Mexican gartersnake. As
mentioned in the July 10, 2013, proposed rule, while native leopard
frogs can be the primary prey base for adult northern Mexican
gartersnakes in some areas, these gartersnakes feed on a variety of
organisms that do not necessarily require the salinity and pH specified
in the PCE (78 FR 41550, July 10, 2013, pp. 78 FR 41553-41554). Because
we do not have salinity and pH values needed for the variety of aquatic
organisms that the different age classes of northern Mexican
gartersnakes eat, we are making this PBF more general. We did not make
substantive changes to the relevant PBF component for narrow-headed
gartersnake.
Prey Base
In the July 10, 2013, proposed rule, we described a wholly native
prey base of amphibians and fish for the northern Mexican gartersnake
in PCE 3, but in PCE 4, we state that nonnative fish are also prey for
the species. In the discussion of PBFs, we noted that northern Mexican
gartersnakes consume primarily amphibians and fishes, but that
occasional invertebrates and other vertebrate taxa may be eaten
opportunistically (78 FR 41550, July 10, 2013, p. 78 FR 41554) and that
the success of northern Mexican gartersnake populations is, in some
cases, tied to nonnative prey species consisting of larval and juvenile
bullfrogs. We did not include these other taxa and bullfrogs in the
PCEs because they are either relatively rare in the diet (in the case
of invertebrates and other vertebrates) or in the case of bullfrogs,
the adult frogs prey voraciously on gartersnake, and so despite the
fact that the snakes eat the juveniles, the presence of bullfrogs
indicates that the habitat is degraded.
We received additional information regarding the prey base of
northern Mexican gartersnake. Additional research confirms that in some
areas where native aquatic prey species are not available, viable
populations of northern Mexican gartersnakes likely rely on bullfrogs
and nonnative, soft-rayed and potentially spiny-rayed fish as a primary
food source (Emmons et al. 2016, pp. 556-557; Emmons and Nowak 2016a,
p. 44; Emmons and Nowak 2013, pp. 6, 15; Lashway 2012, p. 7). In other
areas where native ranid frogs are no longer present, we have
additional information to support that northern Mexican gartersnakes
consume other anurans (frogs and toads), small mammals, lizards, and
invertebrate species (Caldwell 2014, p. 1; d'Orgeix et al. 2013, p.
214; Emmons and Nowak 2016b, p. 9; Manjarriez et al. 2017, table 1).
In this revised proposed rule, for northern Mexican gartersnake, we
are removing the requirement for a wholly native prey base and
including the additional prey species described above in PBF 3. We also
used ``anurans'' (frogs and toads) instead of ``amphibians'' to more
accurately describe the gartersnake's primary prey. We do not make
substantive changes to PBF 3 for narrow-headed gartersnake.

Primary Constituent Elements/Critical Habitat Boundaries

Terrestrial Space Along Streams
In the previous proposed rule, PCE 2 for both gartersnakes included
``[a]dequate terrestrial space (600 ft (182.9 m) lateral extent to
either side of bankfull stage) adjacent to designated stream systems
with sufficient structural characteristics to support life-history
functions such as gestation, immigration, emigration, and brumation
[extended inactivity]'' (78 FR 41550, July 10, 2013, pp. 78 FR 41584
and 78 FR 41601). In the discussion of the PBFs and PCEs, we stated
that the northern Mexican gartersnake has been found up to 330 ft (100
m) away from permanent water (Rosen and Schwalbe 1988, p. 27), and the
narrow-headed gartersnake has been found up to 650 ft (200 m) from
water (Nowak 2006, pp. 19-21; 78 FR 41550, July 10, 2013, p. 78 FR
41557). We then state that ``[b]ased on the literature, we expect the
majority of terrestrial activity for both species occurs within 600 ft
(182.9 m) of permanent water in lotic habitat'' and that ``we believe a
600-ft (182.9-m) lateral extent to either side of bankfull stage will
sufficiently protect the majority of important terrestrial habitat;
provide brumation, gestation, and dispersal opportunities; and reduce
the impacts of high flow events, thereby providing adequate protection
to proposed critical habitat areas'' (78 FR 41550, July 10, 2013, p. 78
FR 41557). We go on to say that we determined 600-ft (182.9-m) lateral
extent from bankfull width for four biological reasons, including
maintaining the biological integrity and natural dynamics of the river
system and associated riparian habitat, nutrient recharge, general
aquatic habitat values, and providing adequate space for normal
gartersnake behaviors.
We received numerous comments and additional scientific information
regarding our definition of adequate terrestrial space for the two
gartersnakes in two general categories. First, using a single distance
of 600 ft (182.9 m) lateral extent from bankfull stage for both
gartersnake species includes areas outside the area typically used by
each gartersnake species and can include areas that do not have any of
the PBFs essential to the conservation of each species, especially in
higher order streams (Nowak 2006, pp. 19-20; Jennings and Christman
2012, pp. 8-12; Emmons and Nowak 2016a, p. 30; Myrand et al. 2017 p.
36). Second, using ``bankfull width'' as a measurement point for the
lateral extent of critical habitat is difficult to determine on the
ground as evidenced by our lack of mapping it as such in the July 10,
2013, proposed rule. Instead, we mapped critical habitat as a 1,200-ft
(366-m) polygon surrounding the centerline of a stream (78 FR 41550,
July 10, 2013, pp. 78 FR 41585, 78 FR 41601). We discuss both issues
below.
At the time of the publication of the July 10, 2013, proposed rule,
most of the

[[Page 23615]]

information we had on locations of both gartersnake species was from
studies where traps were set within water to capture gartersnakes and
then gartersnakes were subsequently released. This survey method does
not provide information on how these species use terrestrial habitat.
Nowak et al. (2006, entire), the study we referenced in our July 10,
2013, proposed rule, was the first study that used radio-telemetered
narrow-headed gartersnakes to look at habitat use. This study only
reported an individual narrow-headed gartersnake moving in a straight-
line distance of 650 ft (200 m) from water location, which we used to
inform lateral extent of critical habitat for both gartersnake species
because this was the best available information. However, since the
publication of the 2013 proposed rule, E. Nowak (2015) provided the
Service a correct interpretation of her telemetry data for this
individual and for the other narrow-headed gartersnakes recorded in
this study. Nowak clarified that the narrow-headed gartersnake was
found on a steep slope approximately 390 ft (150 m) above a stream in a
narrow canyon in a brumation site (Nowak 2006, p. 17). Nowak further
clarified that other narrow-headed gartersnakes were recorded using
brumation sites on the steep slope, reporting horizontal distances from
brumation sites to stream centerline between 276 and 328 ft (84 and 100
m). Nowak (2006, pp. 19-20) also reported at least five other
individual narrow-headed gartersnakes overwintering at brumation sites
not on steep slopes at 66 to 98 ft (20 to 30 m) from water. The
important difference in the distance from the stream is dependent on
the adjacent terrestrial topography. If the topography is steep slopes,
then the gartersnake is found farther from the stream, but this
additional distance is vertical, not horizontal, from the stream bank.
Since we published the 2013 proposed rule, researchers have
completed additional telemetry studies for each gartersnake species
that provide information on how each gartersnake species uses
terrestrial habitat (Jennings and Christman 2012; Boyarski et al. 2015;
Emmons and Nowak 2016a; Myrand et al. 2017; Sprague 2017; Nowak et al.
2019). For northern Mexican gartersnake, telemetry studies indicate
home ranges of individuals ranging from 1.7 acres (0.7 ha) at a highly
modified lentic site to 47.0 acres (19.04 ha) along a spatially
intermittent stream (Boyarski et al. 2015, p. 12; Emmons and Nowak
2016a, pp. 27-28; Nowak et al. 2019, p. 31). Maximum longitudinal
length within these home ranges varied from approximately 148 ft (45 m)
at the lentic site to 2,736 ft (834 m) along the spatially intermittent
stream (Boyarski et al. 2015, p. 12; Emmons and Nowak 2016a, pp. 27-28;
Nowak et al. 2019, p. 31). Mean distance to water of northern Mexican
gartersnake locations ranged from 3.87 to 312.5 ft (1.18 to 95.25 m)
along Tonto Creek in north-central Arizona (Nowak et al. 2019, p. 40).
These studies of northern Mexican gartersnake indicate that this
species overwinters in rodent burrows, cavities below boulders and rock
fields, and below debris piles located 1.6 ft (0.5 m) to approximately
558 ft (170 m) from the water's edge (Boyarski et al. 2015, p. 8;
Emmons and Nowak 2016a, p. 30; Myrand et al. 2017, p. 21). Brumation
sites were located an average of 129 ft (39.27 m) from the water's edge
in two different areas along the Verde River in Arizona (Emmons and
Nowak 2016a, p. 30). Nowak et al. (2019, p. 36) reported brumation
sites for 14 northern Mexican gartersnakes that ranged from 2 to 1,257
ft (0.7 to 383 m) from the water's edge along the Tonto River in
Arizona. Overwintering of seven gartersnakes at brumation sites was
also recorded within 230 ft (70 m) of ponds, and one gartersnake
overwintered at a site approximately 1,115 ft (350 m) from a pond
(Boyarski et al. 2015, pp. 8, 11).
For narrow-headed gartersnake, telemetry studies in New Mexico on
the Tularosa River, Gila River, and Whitewater Creek found individuals
an average of 58.7 ft (17.9 m) from water, with a maximum distance of
285 ft (87 m) across four different sites on the three streams with a
sample size of 69 individuals (Jennings and Chirstman 2012, pp. 9-10).
Researchers found most snakes within 3.28 ft (1 m) of the water's edge
(Jennings and Christman 2012, pp. 9-10). Narrow-headed gartersnakes
were found with lowest average distance of 22.7 ft (6.9 m) during the
dry season of 2010, and highest average distance of 88.3 ft (26.9 m)
during the wet season in 2010 (Jennings and Chirstman 2012, pp. 9-10).
Although, Nowak (2006, p. 19) reported that the maximum distance moved
by one individual was 650 ft (200 m) from water on a steep hillside in
a narrow canyon, she also reported that during the active season, she
most often found individuals outside of water under boulders, small
rocks, and broken concrete slabs located less than 328 ft (100 m) from
the water's edge within the floodplain of Oak Creek and West Fork Oak
Creek, Arizona.
Based on a review of this new information, clarification of Nowak's
data, and comments we received, it is likely that 600 ft (182.9 m) does
not accurately capture the lateral extent of terrestrial habitat used
by either species. Consequently, we have modified the lateral extent
boundary of critical habitat for both species. For northern Mexican
gartersnake, we are defining the lateral extent to include the wetland
or riparian zone adjacent to a stream or lentic water body, whichever
is greater. Delineating based on riparian zone rather than delineating
a set distance more accurately captures the foraging habitat used by
the northern Mexican gartersnake. As described above in this section
and under ``Hydrologic Processes,'' most northern Mexican gartersnake
detections ranged from in water in the stream channel up to meadows or
woodlands within the floodplain at the limit of the riparian zone. We
are defining the riparian zone as the strip of vegetation along a
stream that is of distinct composition and density from the surrounding
uplands, or the area between the stream channel and the upland
terrestrial ecosystem (Levick et al. 2008, pp. 6, 47). Although
northern Mexican gartersnakes have been found in a variety of
vegetation types within this riparian zone (i.e., grasses, shrubs, and
wetland plants), the underlying characteristic of this habitat needed
by the gartersnake appears to be dense vegetation or other natural
structural components that provide cover for the species. Size of the
riparian zone and composition of plants within the riparian zone varies
widely across the range of northern Mexican gartersnake. The width of
critical habitat for northern Mexican gartersnake along streams varies
from approximately 50 to 7,000 ft (15 to 2,134 m). Because the width of
wetland and riparian zone varies along and among streams, and some
streams have little to no riparian habitat but have wetland habitat
that includes some terrestrial components, delineating these areas
rather than delineating a set distance from the stream channel better
captures the needed habitat for the northern Mexican gartersnake.
For narrow-headed gartersnake, we have modified the lateral extent
boundary of critical habitat to include aquatic and terrestrial
features within 89 ft (27 m) of the active channel of a stream. This
distance captures the greatest average distance moved from the water
during the wet season on the Tularosa River in New Mexico from a 3-year
study with a sample size of 69 individuals at two different sites
(Jennings and Christman 2012, p. 12). This is the largest study to
date.
In addition, we have modified the delineation of where terrestrial
habitat

[[Page 23616]]

begins. We chose to use the active channel instead of bankfull width
because the active channel effectively defines a river or stream as a
feature on the landscape (Mersel and Lichvar 2014, pp. 11-12). The
active channel is established and maintained by flows that occur with
some regularity (several times per year to several times per decade),
but not by very rare and extremely high flood events. The outer limits
of the active channel can generally be defined by three primary
indicators that together form a discernable mark on the landscape: A
topographic break in slope, change in vegetation characteristics, and
change in sediment characteristics (Mersel and Lichvar 2014, pp. 13-
14). The active channel is often a fairly obvious and easy feature to
identify in the field, allowing for rapid and consistent identification
(Mersel and Lichvar 2014, p. 14). Further, the active channel can be
consistently recognized by the public.
These changes in determining lateral extent from streams have
reduced the proposed critical habitat designation by 3,458 ac (1,399
ha), or less than 1 percent, of the area included in the July 10, 2013,
proposed rule for critical habitat for northern Mexican gartersnake,
and 41,927 ac (16,967 ha), or 20 percent, of the area included in that
proposed rule for critical habitat for narrow-headed gartersnake (see
tables 1a and 1b, below).
In addition, we are no longer including terrestrial space as a
separate PBF, but are including both terrestrial and aquatic features
that make up a stream in a single PBF (PBF 1) that more accurately
captures the habitat requirements essential to each gartersnake
species.
Overland Areas for Northern Mexican Gartersnake
In the July 10, 2013, proposed rule, for northern Mexican
gartersnake, 5 of the 14 critical habitat units included additional
terrestrial space beyond the 600-ft (182.9-m) lateral extent from
bankfull stage of streams (overland areas or terrestrial space). In the
discussion of space for individual and population growth for normal
behavior under PBFs, we state that ``records for northern Mexican
gartersnakes from semi-remote livestock tanks and spring sources
suggest the species moves across the local landscape as part of its
foraging ecology,'' (78 FR 41550, July 10, 2013, p. 78 FR 41554), and
we cite observations by Drummond and Marcias-Garcia (1983, pp. 24, 35)
of northern Mexican gartersnakes wandering hundreds of meters away from
water, as well as Rosen and Schwalbe (1988, p. 27) observing a northern
Mexican gartersnake 330 ft (100 m) away from permanent water. We
described these areas as overland areas or terrestrial space between
springs, seeps, streams, and stock tanks. We did not include these
areas in a PCE, but we included them in the proposed designation of
critical habitat. Upland areas that are distant from riparian habitat
that the snakes use for foraging may be used while moving between
habitats, but specific habitat attributes in these areas that are
essential to the snakes have not been identified. In determining which
areas we will designate as critical habitat from within the
geographical area occupied by the species at the time of listing, the
Act directs us to consider the physical or biological features (or PCEs
under our previous regulations) that are essential to the conservation
of the species and that may require special management considerations
or protection. A common characteristic of these overland areas was the
presence of natural or constructed livestock ponds within a grassland
landscape in southern Arizona, although we did not define or discuss
the scope of this grassland landscape in the July 10, 2013, proposed
rule. We did not know how northern Mexican gartersnakes used the
grassland landscape in between water features, so we used property and
watershed boundaries to delineate large landscapes that encompassed the
features that the species may use. We used a U.S. Geological Survey
(USGS) Hydrological Unit Code (HUC) level 10 watershed boundary to
delineate the Upper Santa Cruz River Subbasin Unit. We used property
ownership boundaries to delineate the following units and subunits:
Buenos Aires National Wildlife Refuge Unit, Las Cienegas National
Conservation Area Subunit and Cienega Creek Natural Preserve Subunit in
the Cienega Creek Subbasin Unit, Appleton-Whittell Research Ranch
Subunit and Canelo Hills Cienega Preserve Subunit in the Babocomari
River Subbasin Unit, and San Bernardino National Wildlife Refuge Unit.
While property boundaries can delineate individual land management
prescriptions and affect the likelihood for species persistence,
property boundaries themselves are not linked to the PBFs that are
essential to the conservation of northern Mexican gartersnake, where
more accurate mapping methods are available, they should be used as an
alternative to property boundaries. These overland areas encompassed
290,620 acres (47,441 ha) in the previous proposed rule, but only
12,745 acres (5,158 ha) had water bodies within them that contained PCE
1 and PCE 2, and were considered occupied at the time of listing. In
other words, 96 percent of these lands included in critical habitat did
not have PCEs for northern Mexican gartersnake as defined in the July
10, 2013, proposed rule.
Upon further inspection of all known locations of the species, no
northern Mexican gartersnakes have been detected in the aforementioned
overland areas in southern Arizona outside of stream floodplains. These
eight lentic sites occupied at the time of listing, including natural
and constructed ponds, all fall within a stream floodplain, although
some of these streams are ephemeral. Data are still lacking to explain
how the species moves through the overland areas between perennial or
intermittent aquatic features, but we used our re-assessment of
gartersnake locations in relation to stream floodplains, along with
additional information obtained since the publication of the July 10,
2013, proposed rule, to refine the definition of terrestrial space used
by the species. There is new information about how northern Mexican
gartersnakes exploit seasonal amphibian prey species in ephemeral
waters during the rainy season when prey is abundant within these
grassland landscapes in southern Arizona (d'Orgeix et al. 2013, entire;
Caldwell 2014, entire). After the first heavy rains of the monsoon
season in 2012, northern Mexican gartersnakes were found foraging on
seasonal amphibian prey (spadefood (Spea multiplicata)) and basking at
the bases of Sacaton grass (Sporobolus wrightii) in and around a ponded
area within an ephemeral section of the floodplain in O'Donnell Canyon.
These northern Mexican gartersnakes were 0.75 miles (1.2 km) overland
and 1.49 miles (2.3 km) along O'Donnell Canyon upstream of the closest
known population of northern Mexican gartersnakes at Finley Tank
(d'Orgeix 2013, p. 214). Caldwell (2014, p. 1) also found northern
Mexican gartersnakes in wetted ephemeral habitat within the Cienega
Creek floodplain: One in an off-channel marsh, and one in pool of water
on a road that also contained spadefoot larva and metamorphs. We also
have updated information on telemetered snakes moving in other
terrestrial habitats along stream channels in northern Arizona (Emmons
and Nowak 2013, entire; Emmons and Nowak 2016a, entire; Myrand et al.
2017, entire), as described earlier. This research has also

[[Page 23617]]

shown that when northern Mexican gartersnakes were surface active in
habitats with perennial stream flow in northern Arizona, they were
observed outside of water concealed under dense vegetative most of the
time. While we do not have similar information for gartersnakes in
grassland habitats, ephemeral channels in southern Arizona usually have
more vegetative cover than the surrounding uplands, so we can deduce
that it is more likely that gartersnakes are using these more densely
vegetated areas that provide more cover to successfully move between
aquatic sites in these grasslands. Based on this information, we are
not including the overland terrestrial space between springs, seeps,
streams, and stock tanks. In this revised proposed rule, we are
including the springs, seeps, streams, and stock tanks and the
ephemeral drainages that connect these wetlands to perennial streams.
The resulting proposed critical habitat better represents our current
understanding of the life history of the northern Mexican gartersnake
and the habitat characteristics that facilitate its life-history
functions. Consequently, no units or subunits include overland
grassland areas, and all areas considered occupied under this revised
proposed rule are adjusted in size to appropriately reflect the PBFs
(see table 1a, below).
The removal of overland terrestrial space in these large grasslands
has reduced the proposed critical habitat designation for northern
Mexican gartersnake by 285,837 ac (115,674 ha), or 68 percent, of the
area included in the July 10, 2013, proposed rule.
Elevation
In the July 10, 2013, proposed rule, we erroneously included some
areas that are not within the elevation range of narrow-headed
gartersnake, including portions of the West Fork Gila River, Black
Canyon, Iron Creek, Diamond Creek, and Whitewater Creek.
In this revised proposed rule, we add the elevation range of each
corresponding gartersnake species as a PBF to capture the range of
where each species has been documented and exclude the areas that are
outside the elevation ranges where the species occur. This reduces the
proposed critical habitat designation by 2,320 ac (939 ha), or 1
percent, of the area included in the July 10, 2013, proposed rule for
critical habitat for narrow-headed gartersnake (see table 1b, below).

Changes to Criteria Used To Identify Critical Habitat

Occupancy Records

On July 10, 2013, we published proposed rules to list both
gartersnake species (78 FR 41500) and to designate critical habitat for
both gartersnake species (78 FR 41550). On July 8, 2014, we published a
final rule (79 FR 38678) listing both species.
In the proposed rule to designate critical habitat (78 FR 41550;
July 10, 2013), we considered an entire stream as occupied at the time
of listing for each corresponding gartersnake if it was within the
historical range of the species, contained aquatic and terrestrial
components of habitat defined by PCE 1 and PCE 2, had at least one
record of the species dated 1980 or later, and had at least one native
prey species present (78 FR 41550, July 10, 2013, p. 78 FR 41556). For
the northern Mexican gartersnake, we also considered large overland
areas (grasslands) within specific land ownership or watershed as
occupied if they met the above criteria. We have reconsidered the use
the criteria of one record of the species dated 1980 or later as a
proxy for what was occupied at the time of listing. We received
comments that using records dated 1980 or later to determine which
streams are occupied at the time of listing is inconsistent with
definitions we used to define the status of the northern Mexican
gartersnake in prior Service status assessment documents, that our
approach is not supported by the scientific literature, and that low
gartersnake detection probabilities do not justify a broad historical
approach to designate critical habitat. Thus, in this revised proposed
rule, we take a more accurate approach (described below) to conclude
what areas were likely occupied at the time of listing in 2014.
For northern Mexican gartersnake, the definition of occupancy we
used to determine critical habitat in the July 10, 2013, proposed rule
is significantly different from the criteria that we used to define
what areas we considered the northern Mexican gartersnake extant or
extirpated in other previous Service documents. In the 2006 and 2008
12-month findings (71 FR 56228, September 26, 2006; and 73 FR 71788,
November 25, 2008, respectively), as well as in updates to the
``Species Assessment and Listing Priority Form'' described in our
annual candidate notices of review (see 73 FR 75176, December 10, 2008;
74 FR 57804, November 9, 2009; 75 FR 69222, November 10, 2010; 76 FR
66370, October 26, 2011), ``extant'' was defined as areas where the
species is expected to reliably occur in appropriate habitat as
supported by museum records or recent, reliable observations. Based on
this definition, only 42 percent of the total area considered occupied
at the time of listing by the species in the July 10, 2013, proposed
critical habitat designation was considered extant from 2006 to 2011.
From 2006-2011, the Service defined ``extirpated'' as that there have
been no individuals reported for a decade or longer at a site within
the historical distribution of the species, despite survey efforts, and
there is no expectation of natural recovery at the site due to the
presence of known or strongly suspected causes of extirpation.
Furthermore, the Service defined ``unknown'' as the species occurred
based on museum records (mostly historically) but access is restricted,
or survey data unavailable or insufficient, or where threats could
preclude occupancy. Of the total area considered occupied by the
species in the July 10, 2013, proposed critical habitat designation, 16
percent would have been considered extirpated, 23 percent would have
been considered unknown, and 19 percent would have had no status based
on the 2006-2011 definitions of status for northern Mexican
gartersnake. In the July 10, 2013, proposed listing rule (78 FR 41500),
we changed how we defined status to correspond with our definition of
``occupied'' in the July 10, 2013, proposed critical habitat rule (78
FR 41550). The most significant change in those 2013 publications was
that we considered a gartersnake species extant in an area if it had
been reported in an area in the past 33 years regardless of negative
survey efforts or threats precluding occupancy. We justified using
records of each species from the 1980s to determine that an area was
occupied at the time of listing by stating that ``both species of
gartersnake are cryptic, secretive, difficult to detect, quick to
escape underwater, and capable of persisting in low or very low
population densities that make positive detections nearly impossible in
structurally complex habitat'' (78 FR 41550, July 10, 2013, p. 78 FR
41556). For narrow-headed gartersnake, we had no previous Service
documents that addressed occupancy of the species.
For this revised proposed rule, we reassessed occupancy at the time
of listing for each gartersnake by reviewing all records for each
gartersnake that we used in the July 10, 2013, proposed critical
habitat rule in conjunction with expected survivorship of each species,
subsequent surveys in areas that had no

[[Page 23618]]

detection of the corresponding gartersnake species, and changes in
threats that may have prevented occupancy at time of listing.
Understanding longevity of a species can inform how long we can
reasonably expect a species is still extant in an area, regardless of
detection probability. The oldest estimated northern Mexican
gartersnake is between 14 and 16 years old, although growth rate
calculations are still preliminary (M. Ryan 2020). The longest years
between recaptures from these mark-recapture studies is 9 years (M.
Ryan 2020, pers. comm.). Narrow-headed gartersnakes may live up to 10
years or longer in the wild (Rosen and Schwalbe 1988, p. 38). An
individual narrow-headed gartersnake captured in the wild as an adult
was kept in captivity for 11 years; and estimated to be 16 years old
(M. Ryan 2020). Based on this information, we estimate maximum
longevity for each gartersnake species is 15 years, so that it is
reasonable to conclude that a gartersnake detected in 1998 or later
represents a population that could still be present at the time of
proposed listing in 2013, depending on the extent of threats in the
area. Although it is possible that gartersnakes are still extant in
areas where they were detected only during the 1980s, we have
determined that the best available information reflecting occupancy at
the time of listing supports a more recent date of records since 1998.
In the July 10, 2013, proposed critical habitat rule, 8 percent of
the critical habitat designation for northern Mexican gartersnake and
17 percent of the designation for narrow-headed gartersnake was
considered occupied at the time of listing, based solely on records of
the corresponding species dated before 1998. For northern Mexican
gartersnake, these areas included Mule Creek Unit, Upper Salt River
Subbasin Unit, and Agua Fria River Subbasin Unit in their entirety, and
Bear Canyon Creek Subunit in San Pedro River Subbasin Unit and Turkey
Creek Subunit in Babocomari River Subbasin Unit. For narrow-headed
gartersnake, areas included Turkey Creek Subunit in Upper Gila River
Subbasin Unit; and Salt River, White River, Carrizo Creek, Cibecue
Creek, and Diamond Creek subunits in Upper Salt River Subbasin Unit. We
note that the San Bernardino National Wildlife Refuge Unit did not have
a verified northern Mexican gartersnake record dated 1998 or later.
This unit was not included in the revised proposed rule. In addition,
Parker Canyon and Parker Canyon Lake were specifically mentioned as
part of the occupied Upper Santa Cruz River Unit for northern Mexican
gartersnake in the July 10, 2013, proposed rule, but the last detection
of the species in this area was in 1979 (Holycross et al. 2006,
appendix A). Redrock Canyon does not have a record of the northern
Mexican gartersnake, and was also erroneously included in the July 10,
2013, proposed rule. Instead, the species was found in nearby Cott Tank
Drainage and is included in this revised proposed rule (Jones 2009).
For narrow-headed gartersnake, we note that the Gila River Subunit in
the Middle Gila River Subbasin Unit had no records of the species and
was erroneously included in the July 10, 2013, proposed rule. In
addition, East Fork Gila River had no confirmed post-1980 records of
the species and was erroneously included in the July 10, 2013, proposed
rule (Propst 2015).
Based on our analyses in the rule listing the two garternakes (79
FR 38678; July 8, 2014), we conclude that there has been a significant
decline in both species over the past 50 years. This decline appeared
to accelerate during the two decades immediately before listing
occurred. From this observation, we conclude that many areas that were
occupied by the species in surveys during the 1980s are likely no
longer occupied because those populations have disappeared. To
determine where loss of populations was likely, we reviewed survey
efforts after 1989 that did not detect gartersnakes in some of the
areas mentioned above, and portions of other units and subunits
included in the July 10, 2013, proposed critical habitat rule. We
analyzed this to determine whether the cryptic nature of the species
was a valid argument for considering areas that only have gartersnake
records from the 1980s as still occupied at the time of listing in
2013. All of the surveys conducted since the 1980s included at least
the same amount or more search effort than those surveys that detected
each species in the 1980s. Since 1998, researchers have detected each
gartersnake species in many areas where they were found in the 1980s.
Areas where each gartersnake was found after 1997 are included in this
revised proposed rule. This includes portions of 9 of the 13 units for
northern Mexican gartersnake, and portions of 6 of the 7 units for
narrow-headed gartersnake from the July 10, 2013, proposed rule.
Resurveyed areas with no confirmed detection of northern Mexican
gartersnakes since the 1980s include Mule Creek (Hotle et al. 2012, p.
1), Black River (Holycross et al. 2006, p. 30), Big Bonito Creek
(Holycross et al. 2006, p. 64), Verde River downstream of Beasley Flat
(Holycross et al. 2006, p. 26; Emmons and Nowak 2012, pp. 11-13), Agua
Fria River (Holycross et al. 2006, pp. 15-18; Burger 2016, p. 3),
Little Ash Creek (Holycross et al. 2006, p. 19; Emmons and Nowak 2012,
p. 32; Burger 2016, p. 3), and Black Draw and lentic habitats on San
Bernardino National Wildlife Refuge (Radke 2006).
Resurveyed areas with no confirmed detection of narrow-headed
gartersnakes since the 1980s include the Gila River Subunit downstream
of the Middle Box (Christman and Jennings 2017, pp. 4-12; Jennings et
al. 2017, pp. 13-14; Jennings et al. 2018, pp. 10-13; Jennings and
Christman 2019, p. 5); San Francisco River downstream of confluence
with Whitewater Creek (Holycross et al. 2006, p. 66; Hellekson 2012),
and Salt River (Holycross et al. 2006, pp. 38-39). It is reasonable to
conclude that areas surveyed within 15 years of listing with no
detection of the corresponding gartersnake species were not occupied at
the time of listing. Survey efforts in these areas were comparable to
or greater than surveys conducted in the 1980s that detected the
species. Additionally, comparable surveys did detect gartersnakes in
other areas where the species was present in the 1980s. Finally, we
would expect that some populations would be lost during the decades
preceding listing when numbers of both gartersnakes were declining.
These declines are what eventually led to the need to list both
species.
As explained extensively in the final listing rule for both
gartersnake species (79 FR 38678, July 8, 2014, pp. 79 FR 38688-79 FR
38702), aquatic vertebrate survey efforts throughout the range of both
species indicate that native prey species of both gartersnakes have
decreased or are absent, while nonnative predators, including
bullfrogs, crayfish, and spiny-rayed fish, continue to increase in many
of the areas where both gartersnakes were present in the 1980s (Emmons
and Nowak 2012, pp. 11-14; Gibson et al. 2015, pp. 360-364; Burger
2016, pp. 21-32; Emmons and Nowak 2016a, pp. 43-44; Christman and
Jennings 2017, p. 14; Hall 2017, pp. 12-13; Jennings et al. 2018, p.
19). We acknowledge that both gartersnake species are extant in some
areas that have abundant nonnative, aquatic predators, some of which
also are prey for gartersnakes, so presence of nonnative aquatic
predators is not always indicative of absence of these gartersnakes
(Emmons and Nowak 2012, p. 31; Emmons and Nowak 2016a, p. 13; Emmons et
al. 2016, entire; Nowak et al. 2016, pp. 5-6; Lashway 2015, p. 5). We

[[Page 23619]]

also acknowledge that we do not have a good understanding of why
gartersnake populations are able to survive in some areas with aquatic
predators and not in other areas (Burger 2016, pp. 13-15). However, we
think it is reasonable to conclude that streams, stream reaches, and
lentic water bodies were not occupied at the time of listing if they
have only gartersnake records older than 1998 and have experienced a
rapid decline in native prey species coupled with an increase in
nonnative aquatic predators since gartersnakes were detected in these
areas in the 1980s.
In summary, through this review of gartersnake occupancy, we
determined that a stream, stream reach, or lentic water body was
occupied at the time of listing for each gartersnake species if it is
within the historical range of the species, contains all PBFs for the
species, (although the PBFs concerning prey availability and presence
of nonnative predators are often in degraded condition), and a last
known record of occupancy in 1998 or later. As a result, six subunits
in five units of critical habitat for northern Mexican gartersnake and
nine subunits in four units of critical habitat for narrow-headed
gartersnake included in the July 10, 2013, proposed rule are no longer
included in this revised proposed critical habitat designation their
entirety. This change reduced the proposed critical habitat designation
by 35,426 ac (14,336 ha), or 9 percent, of the area included in the
July 10, 2013, proposed rule for northern Mexican gartersnake, and
47,535 ac (19,237 ha), or 23 percent, of the area included in that
proposed rule for narrow-headed gartersnake (see tables 1a and 1b,
below). Other units and subunits are shortened in length due to our
definition of occupancy as described below under Stream Length.
We included gartersnake detections of each gartersnake that
occurred after the species was listed because these areas were likely
occupied at the time of listing in 2014. Both of these species are
cryptic in nature and may not be detected without intensive surveys.
Because populations for these species are generally small, isolated,
and in decline it is not likely that the species have colonized new
areas since 2014; these areas were most likely occupied at the time of
listing, but either had not been surveyed or the species were present
but not detected during surveys. However, we did not include streams or
lentic water bodies where gartersnakes were released for recovery
purposes after the species was listed that had not been historically
occupied by the species. This added one new unit and five subunits in
four existing units of critical habitat for northern Mexican
gartersnake (7,040 ac (2,848 ha)) and five subunits in two units of
critical habitat for narrow-headed gartersnake (1,181 ac (478 ha)) in
this revised proposed rule (see tables 1a and 1b, below).

Stream Length

In the July 10, 2013, proposed critical habitat rule, if a stream
had at least one known record for the each gartersnake species and at
least one record of a native prey species currently present, the entire
stream length was included in proposed critical habitat. In the
discussion, we stated, ``With respect to length (in proposed
designations based on flowing streams), the proposed areas were
designed to provide sufficient aquatic and terrestrial habitat for
normal behaviors of northern Mexican and narrow-headed gartersnakes of
all age classes'' (78 FR 41550, p. 78 FR 41556). We received numerous
general comments and comments on specific stream reaches that are not
habitat for the corresponding gartersnake.
In this revised proposed rule, for each gartersnake species, we
used comments we received and reports on water availability, prey
availability, and gartersnake surveys to re-evaluate all streams and
determine which stream reaches contain PBFs and where PBFs are lacking.
Stream reaches that lack PBFs include areas where water flow became
completely ephemeral along an otherwise perennial or spatially
intermittent stream, hydrologic processes needed to maintain streams
could not be recovered, nonnative aquatic predators outnumbered native
prey species, or streams were outside the elevation range. In addition,
reaches with multiple negative surveys without a subsequent positive
survey or reaches that have no records of the corresponding gartersnake
species are not included, as described above under Occupancy Records.
We do include stream reaches that lack survey data for the
corresponding gartersnake, if they have positive observation records of
the species dated 1998 or later both upstream and downstream of the
stream reach and have all of the PBFs.
We also reviewed the best available information we have on home
range size and potential dispersal distance for each gartersnake
species to inform upstream and downstream boundaries of each unit and
subunit of critical habitat. As explained earlier, the maximum
longitudinal distance measured across home range areas of northern
Mexican gartersnake tracked for at least one year was 4,852 ft
(1,478.89 m) for one individual, and ranged from 587.9 to 2,580 ft
(179.2 to 481.58 m) for eight other northern Mexican gartersnakes
(Nowak et al. 2019, pp. 24-25). Maximum longitudinal distance measured
across home range areas of narrow-headed gartersnakes ranged from 82 to
285 feet (25 to 87 m) (Jennings and Christman 2012, pp. 9-10). These
longitudinal home range distances were all determined from adult
gartersnakes, and did not inform how juvenile gartersnakes are
dispersing along a stream. Juvenile dispersal is important because
snakes of different age classes behave differently, and juvenile
gartersnakes may move farther along a stream as they search for and
establish suitable home ranges than do adults with established home
ranges. Because we have no information on how juvenile northern Mexican
gartersnakes and narrow-headed gartersnakes disperse, we used
information from a long-term dispersal study on neonate, juvenile, and
adult age classes of the Oregon gartersnake (Thamnophis atratus
hydrophilus) in a free-flowing stream environment in northern
California (Welsh et al. 2010, entire). This is the only dispersal
study available for another aquatic Thamnophis species in the United
States, so we used it as a surrogate for determining upstream and
downstream movements of both northern Mexican and narrow-headed
gartersnakes, which are also aquatic Thamnophis species. The greatest
movement was made by a juvenile recaptured as an adult 2.2 mi (3.6 km)
upstream from the initial capture location (Welsh et al. 2010, p. 79).
Therefore, in this revised proposed rule, we delineate upstream and
downstream critical habitat boundaries of a stream reach at 2.2 mi (3.6
km) from a known gartersnake observation record.
These changes in determining stream length reduced the proposed
critical habitat designation by 72,955 ac (29,524 ha), or 17 percent,
of the area included in the July 10, 2013, proposed rule for critical
habitat for northern Mexican gartersnake, and 101,597 ac (41,115 ha),
or 48 percent, of the area included in that proposed rule for critical
habitat for narrow-headed gartersnake (see tables 1a and 1b, below).

[[Page 23620]]

Table 1a--Changes to Northern Mexican Gartersnake Proposed Critical Habitat Units
--------------------------------------------------------------------------------------------------------------------------------------------------------
Length miles (kilometers) Area acres (hectares)
Previous unit Previous subunit New unit New subunit ---------------------------------------------------------------------
Previous New Previous New
--------------------------------------------------------------------------------------------------------------------------------------------------------
Upper Gila River............. ................ Upper Gila River ............... 148 (239) 13 (21) 21,135 (8,553) 1,132 (458)
Subbasin.
................ ................ Gila River..... 148 (239) 9 (14) 21,135 (8,553) 1,028 (416)
................ ................ Duck Creek..... 0 4 (6) 0 104 (42)
Mule Creek................... ................ Removed *....... ............... 19 (30) 0 2,579 (1,044) 0
Upper Salt River............. ................ Removed *....... ............... 156 (251) 0 22,218 (8,991) 0
Black River..... ................ Removed *...... 114 (184) 0 16,392 (6,634) 0
Big Bonito Creek ................ Removed *...... 42 (67) 0 5,826 (2,358) 0
Tonto Creek.................. ................ Tonto Creek..... ............... 65 (105) 32 (52) 8,936 (3,616) 4,302 (1,741)
Verde River.................. ................ Verde River ............... 201 (323) 61 (99) 29,191 (11,813) 5,246 (2,123)
Subbasin.
Upper Verde ................ Verde River.... 140 (225) 35 (56) 20,526 (8,307) 4,133 (1,672)
River.
Oak Creek....... ................ Oak Creek...... 39 (62) 23 (37) 5,533 (2,239) 1,014 (410)
Spring Creek.... ................ Spring Creek... 23 (36) 4 (6) 3,131 (1,267) 99 (40)
Agua Fria River.............. ................ Removed *....... ............... 56 (91) 0 7,946 (3,215) 0
Agua Fria River ................ Removed *...... 49 (80) 0 6,989 (2,828) 0
Mainstem.
Little Ash Creek ................ Removed *...... 10 (11) 0 957 (387) 0
Bill Williams River.......... ................ Bill Williams ............... 36 (58) 29 (46) 5,412 (2,190) 4,049 (1,639)
River Subbasin.
................ ................ Bill Williams 36 (58) 15 (24) 5,412 (2,190) 1,805 (730)
River.
................ ................ Big Sandy River 0 8 (13) 0 932 (377)
................ ................ Santa Maria 0 5 (9) 0 1,312 (531)
River.
................ Lower Colorado ............... 0 n/a 0 4,467 (1,808)
River.
Buenos Aires NWR............. ................ Arivaca Cienega. ............... n/a 3 (5) 117,313 (47,475) 211 (86)
Cienega Creek Subbasin....... ................ Cienega Creek ............... n/a 46 (73) 50,393 (20,393) 2,030 (821)
Subbasin.
Cienega Creek... ................ Cienega Creek 1 7+ (11+) 30 (48) 1,113 (450) 1,613 (653)
Cienega Creek ................ Removed *...... n/a n/a 4,260 (1,724) 0
Natural
Preserve.
Las Cienegas NCA ................ Removed *...... n/a n/a 45,020 (18,219) 0
2.
................ ................ Empire Gulch n/a 7 (11) n/a 326 (132)
and Empire
Wildlife Pond.
................ ................ Gardner Canyon n/a 7 (11) n/a 74 (30)
and Maternity
Wildlife Pond.
................ ................ Unnamed n/a 2 (3) n/a 15 (6)
Drainage and
Gaucho Tank.
Redrock Canyon............... ................ Removed * 3..... ............... 14 (23) 0 1,972 (798) 0
Upper Santa Cruz River ................ Upper Santa Cruz ............... n/a 23 (36) 113,895 (46,092) 496 (201)
Subbasin 4. River Subbasin.
................ ................ Sonoita Creek.. 0 3 (5) 0 224 (91)
................ ................ Cott Tank n/a 2 (3) 0 13 (5)
Drainage.
................ ................ Santa Cruz 14 (22) 7 (11) n/a 161 (65)
River.

[[Page 23621]]

................ ................ Unnamed n/a 5 (7) n/a 42 (17)
Drainage and
Pasture 9 Tank.
................ ................ Unnamed n/a 2 (3) n/a 25 (10)
Drainage and
Sheehy Spring.
................ ................ Scotia Canyon.. n/a 4 (7) n/a 31 (13)
................ ................ FS799 Tank..... n/a n/a n/a 0.7 (0.3)
................ ................ Unnamed n/a n/a n/a 0.1 (<0.1)
Wildlife Pond.
................ ................ Removed * 6 (9) 0 n/a 0
(Parker
Canyon).
San Pedro River Subbasin..... ................ Upper San Pedro ............... 165 (266) 35 (57) 23,690 (9,587) 5,850 (2,367)
River Subbasin.
San Pedro River. ................ San Pedro River 158 (255) 22 (35) 22,669 (9,174) 5,126 (2,074)
Bear Canyon ................ Removed *...... 7 (11) 0 1,022 (414) 0
Creek.
................ ................ House Pond..... 0 n/a 0 0.6 (0.2)
Babocomari River Subbasin.... ................ Incorporated 5.. ............... 45 (72) n/a 14,334 (5,801) n/a
Babocomari River ................ Babocomari 24 (24) 6 (10) 3,454 (1,398) 404 (164)
River.
Turkey Creek.... ................ Removed *...... 12 (19) 0 1,678 (679) 0
Appleton- ................ Removed * 6.... n/a n/a 7,798 (3,156) 0
Whittell
Research Ranch.
Canelo Hills ................ Removed * 6.... n/a n/a 213 (86) 0
Cienega
Preserve.
Post Canyon..... ................ Post Canyon.... 6+ (9+) 3 (5) 795 (322) 77 (31)
O'Donnell Canyon ................ O'Donnell 3+ (5+) 4 (7) 398 (161) 239 (97)
Canyon.
................ ................ Unnamed n/a 0.5 (0.7) n/a 3 (1)
Drainage and
Finley Tank.
San Bernardino NWR........... ................ Removed *....... ............... n/a n/a 2,387 (966) 0
---------------------------------------------------------------------
Totals................... ................ ................ ............... 932 (1,500) 241 (388) 421,423 (170,544) 27,784 (11,244)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Numbers may not sum due to rounding.
* ``Removed '' means this unit or subunit, which was proposed as critical habitat for the northern Mexican gartersnake in the July 10, 2013, proposed
rule (78 FR 41550), is not included in this revised proposed critical habitat designation.
1 Portions of Cienega Creek in the Cienega Creek Natural Preserve and Las Cienegas National Conservation Area are now included in Cienega Creek subunit.
2 All new named subunits in the Cienega Creek Subbasin unit were included in the July 10, 2013, proposed rule's Las Cienegas National Conservation Area
(NCA) subunit.
3 The gartersnake record was in Cott Tank Drainage not Redrock Canyon so is now captured in the Cott Tank Drainage subunit.
4 All new named subunits except for Sonoita Creek were included in the July 10, 2013, proposed rule's Upper Santa Cruz River Subbasin unit.
5 The named subunits of the Babocomari River Subbasin unit in the July 10, 2013, proposed rule (78 FR 41550) are now incorporated into the Upper San
Pedro River Subbasin unit.
6 Portions of these two subunits are now included in Post Canyon, O'Donnell Canyon, and Unnamed Drainage and Finley Tank subunits.

[[Page 23622]]

Table 1b--Changes to Narrow-Headed Gartersnake Proposed Critical Habitat Units
--------------------------------------------------------------------------------------------------------------------------------------------------------
Length miles (kilometers) Area acres (hectares)
Previous unit Previous subunit New unit New subunit ---------------------------------------------------------------------
Previous New Previous New
--------------------------------------------------------------------------------------------------------------------------------------------------------
Upper Gila River Subbasin.... ................ Upper Gila River ............... 325 (526) 104 (167) 49,903 (20,195) 5,429 (2,197)
Subbasin.
Gila River...... ................ Gila River..... 148 (239) 46 (74) 21,135 (8,553) 3,510 (1,420)
Turkey Creek.... ................ Removed *...... .............. 0 2,338 (946) 0
West Fork Gila ................ West Fork Gila 37 (60) 12 (19) 5,169 (2,092) 562 (228)
River. River.
Little Creek.... ................ Little Creek... .............. 7 (11) 2,236 (905) 162 (65)
Middle Fork Gila ................ Middle Fork 37 (60) 14 (23) 4,964 (2,009) 569 (230)
River. Gila River.
Iron Creek...... ................ Iron Creek..... 12 (20) 2 (3) 1,731 (701) 58 (23)
Gillita Creek... ................ Gillita Creek.. 12 (20) 6 (10) 1,704 (690) 149 (60)
East Fork Gila ................ Removed *...... 28 (44) 0 3,579 (1,148) 0
River.
Black Canyon.... ................ Black Canyon... 26 (42) 10 (16) 3,503 (1,418) 251 (102)
Diamond Creek... ................ Diamond Creek.. 25 (41) 6 (10) 3,545 (1,435) 169 (68)
Middle Gila River Subbasin... ................ Removed *....... ............... 63 (101) 0 8,814 (3,567) 0
Gila River...... ................ Removed *...... 3 (5) 0 432 (175) 0
Eagle Creek..... Eagle Creek 1... ............... 60 (97) 7 (11) 8,382 (3,392) 336 (136)
San Francisco River Subbasin. ................ San Francisco ............... 301 (476) 129 (207) 45,075 (18,241) 4,905 (1,985)
River Subbasin.
San Francisco ................ San Francisco 163 (263) 71 (115) 23,178 (9,380) 3,120 (1,263)
River. River.
Whitewater Creek ................ Whitewater .............. 9 (14) 2,289 (1,145) 208 (84)
Creek.
Saliz Creek..... ................ Saliz Creek.... 8 (13) 8 (13) 1,099 (445) 218 (88)
Tularosa River.. ................ Tularosa River. 35 (56) 20 (32) 4,728 (1,913) 829 (336)
n/a............. ................ Negrito Creek.. 0 13 (21) 0 337 (136)
South Fork ................ South Fork 11 (17) 8 (13) 1,483 (600) 192 (78)
Negrito Creek. Negrito Creek.
................ Blue River ............... n/a 64 (103) n/a 2,971 (1,202)
Subbasin.
Blue River...... ................ Blue River..... 53 (86) 52 (84) 7,432 (3,007) 2,504 (1,013)
Campbell Blue ................ Campbell Blue 22 (26) 7 (11) 3,008 (1,217) 361 (146)
Creek. Creek.
Dry Blue Creek.. ................ Dry Blue Creek. 9 (15) 4 (6) 1,320 (534) 106 (43)
Upper Salt River Subbasin.... ................ Black River ............... 352 (654) 51 (82) 58,014 (23,478) 1,607 (650)
Subbasin.
Salt River...... ................ Removed *...... 86 (139) 0 12,877 (5,211) 0
White River..... ................ Removed *...... 18 (29) 0 2,588 (1,047) 0
Carrizo Creek... ................ Removed *...... 64 (104) 0 9,033 (1,229) 0
Cibecue Creek... ................ Removed *...... 48 (77) .............. 6,669 (2,699) .................
Diamond Creek... ................ Removed *...... 22 (36) 0 3,117 (1,261) 0
Black River..... ................ Black River.... 114 (184) 23 (37) 16,384 (6,630) 763 (309)
n/a............. ................ Bear Wallow 0 6 (10) 0 174 (71)
Creek.
n/a............. ................ North Fork Bear 0 2 (3) 0 61 (25)
Wallow Creek.
n/a............. ................ Reservation 0 5 (8) 0 132 (54)
Creek.
n/a............. ................ Fish Creek..... 0 4 (6) 0 107 (43)
n/a............. ................ East Fork Black 0 12 (19) 0 370 (150)
River.
Canyon Creek.... Canyon Creek 1.. ............... 53 (85) 8 (13) 7,346 (2,973) 232 (94)
Tonto Creek.................. ................ Tonto Creek..... ............... 91 (146) 41 (66) 12,795 (5,178) 1,390 (562)
Tonto Creek..... ................ Tonto Creek.... 54 (87) 28 (45) 7,712 (3,121) 1,078 (436)
Houston Creek... ................ Houston Creek.. 15 (24) 1 (2) 2,046 (828) 18 (7)
Haigler Creek... ................ Haigler Creek.. 22 (35) 12 (19) 3,037 (1,229) 294 (119)

[[Page 23623]]

Verde River.................. ................ Verde River ............... 248 (400) 58 (93) 35,586 (14,401) 1,832 (741)
Subbasin.
Verde River..... ................ Verde River.... 128 (205) 27 (43) 18,721 (7,576) 923 (374)
Oak Creek....... ................ Oak Creek...... 51 (83) 24 (39) 7,369 (2,982) 748 (303)
West Fork Oak ................ West Fork Oak 16 (26) 7 (11) 2,137 (865) 161 (65)
Creek. Creek.
East Fork Verde ................ Removed *...... 53 (86) 0 7,360 (2,978) 0
River.
---------------------------------------------------------------------
Totals................... ................ ................ ............... 1,380 (2,221) 461 (742) 210,189 (85,060) 18,701 (7,568)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Numbers may not sum due to rounding.
* ``Removed'' means this unit or subunit, which was proposed as critical habitat for the narrow-headed gartersnake in the July 10, 2013, proposed rule
(78 FR 41550), is not included in this revised proposed critical habitat designation.
1 Eagle Creek and Canyon Creek were proposed as a critical habitat subunits for the narrow-headed gartersnake in the July 10, 2013, proposed rule (78 FR
41550), but are their own units in this revised proposed critical habitat designation.

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 we will designate as
critical habitat from within the geographical area occupied by the
species at the time of listing, we consider the physical or biological
features that are essential to the conservation of the species and that
may require special management considerations or protection. The
regulations at 50 CFR 424.02 define ``physical or biological features
essential to the conservation of the species'' as the features that
occur in specific areas and that are essential to support the life-
history needs of the species, including, but not limited to, water
characteristics, soil type, geological features, sites, 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. For example,
physical features essential to the conservation of the species 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 essential 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.

Summary of Essential Physical or Biological Features

We derive the specific PBFs essential to the conservation of
northern Mexican and narrow-headed gartersnakes from studies of this
species' habitat, ecology, and life history as described above.
Additional information can be found in the final listing rule published
in the Federal Register on July 8, 2014 (79 FR 38678); the previous
proposed critical habitat rule (78 FR 41550; July 10, 2013), as well as
comments we received on previous proposed critical habitat rule; and
information in this rule under Changes from Previously Proposed
Critical Habitat, above. We have determined that the following PBFs are
essential to the conservation of northern Mexican and narrow-headed
gartersnakes.
Northern Mexican Gartersnake
1. Perennial or spatially intermittent streams that provide both
aquatic and terrestrial habitat that allows for immigration,
emigration, and maintenance of population connectivity of northern
Mexican gartersnakes and contain:
(A) Slow-moving water (walking speed) with in-stream pools, off-
channel pools, and backwater habitat;
(B) Organic and natural inorganic structural features (e.g.,
boulders, dense aquatic and wetland vegetation, leaf litter, logs, and
debris jams) within the stream channel for thermoregulation, shelter,
foraging opportunities, and protection from predators;
(C) Terrestrial habitat adjacent to the stream channel that
includes riparian vegetation, small mammal burrows, boulder fields,
rock crevices, and downed woody debris for thermoregulation, shelter,
foraging opportunities, brumation, and protection from predators; and
(D) Water quality that is absent of pollutants or, if pollutants
are present, at levels low enough such that recruitment of northern
Mexican gartersnakes is not inhibited.
2. Hydrologic processes that maintain aquatic and terrestrial
habitat through:
(A) A natural flow regime that allows for periodic flooding, or if
flows are modified or regulated, a flow regime that allows for the
movement of water, sediment, nutrients, and debris through the stream
network; and
(B) Physical hydrologic and geomorphic connection between a stream
channel and its adjacent riparian areas.
3. Prey base of primarily native anurans, fishes, small mammals,
lizards, and invertebrate species.

[[Page 23624]]

4. An absence of nonnative fish species of the families
Centrarchidae and Ictaluridae, bullfrogs (Lithobates catesbeianus),
and/or crayfish (Orconectes virilis, Procambarus clarki, etc.), or
occurrence of these nonnative species at low enough levels such that
recruitment of northern Mexican gartersnakes is not inhibited and
maintenance of viable prey populations is still occurring.
5. Elevations from 130 to 8,500 ft (40 to 2,590 m).
6. Lentic wetlands including off-channel springs, cienegas, and
natural and constructed ponds (small earthen impoundment) with:
(A) Organic and natural inorganic structural features (e.g.,
boulders, dense aquatic and wetland vegetation, leaf litter, logs, and
debris jams) within the ordinary high water mark for thermoregulation,
shelter, foraging opportunities, brumation, and protection from
predators;
(B) Riparian habitat adjacent to ordinary high water mark that
includes riparian vegetation, small mammal burrows, boulder fields,
rock crevices, and downed woody debris for thermoregulation, shelter,
foraging opportunities, and protection from predators; and
(C) Water quality that is absent of pollutants or, if pollutants
are present, at levels low enough such that recruitment of northern
Mexican gartersnakes is not inhibited.
7. Ephemeral channels that connect perennial or spatially
intermittent perennial streams to lentic wetlands in southern Arizona
where water resources are limited.
Narrow-Headed Gartersnake
1. Perennial streams or spatially intermittent streams that provide
both aquatic and terrestrial habitat that allows for immigration,
emigration, and maintenance of population connectivity of narrow-headed
gartersnakes and contain:
(A) Pools, riffles, and cobble and boulder substrate, with low
amount of fine sediment and substrate embeddedness;
(B) Organic and natural inorganic structural features (e.g., cobble
bars, rock piles, large boulders, logs or stumps, aquatic and wetland
vegetation, logs, and debris jams) in the stream channel for basking,
thermoregulation, shelter, prey base maintenance, and protection from
predators;
(C) Water quality that is absent of pollutants or, if pollutants
are present, at levels low enough such that recruitment of narrow-
headed gartersnakes is not inhibited; and
(D) Terrestrial habitat within 89 ft (27 m) of the active stream
channel that includes boulder fields, rocks, and rock structures
containing cracks and crevices, small mammal burrows, downed woody
debris, and vegetation for thermoregulation, shelter sites, and
protection from predators.
2. Hydrologic processes that maintain aquatic and riparian habitat
through:
(A) A natural flow regime that allows for periodic flooding, or if
flows are modified or regulated, a flow regime that allows for the
movement of water, sediment, nutrients, and debris through the stream
network, as well as maintenance of native fish populations; and
(B) Physical hydrologic and geomorphic connection between the
active stream channel and its adjacent terrestrial areas.
3. Prey base of native fishes, or soft-rayed, nonnative fish
species.
4. An absence of nonnative predators, such as fish species of the
families Centrarchidae and Ictaluridae, bullfrogs, and crayfish, or
occurrence of nonnative predators at low enough densities such that
recruitment of narrow-headed gartersnakes is not inhibited and
maintenance of viable prey populations is still occurring.
5. Elevations of 2,300 to 8,200 ft (700 to 2,500 m).

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. In this revised proposed critical habitat rule, we are not
changing any of the special management considerations for either
gartersnake species' proposed critical habitat.

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 for both gartersnake species in areas considered currently
occupied. We are not currently proposing to designate any areas outside
the geographical area occupied by the species because we have not
identified any unoccupied areas that meet the definition of critical
habitat. We are not aware of any other areas within the historical
range of the species that maintain perennial water, have suitable prey,
and support an aquatic community that is not dominated by nonnative
predators. Therefore, although there may be a future need to expand the
area occupied by one or both gartersnake species to reach recovery,
there are no unoccupied areas that are currently essential to the
species conservation and that should be designated as critical habitat.
To identify areas proposed for critical habitat for the northern
Mexican and narrow-headed gartersnakes, we used a variety of sources
for species data including riparian species survey reports, museum
records, heritage data from State wildlife agencies, peer-reviewed
literature, agency reports, and interviews with species experts.
Holycross et al. (in press, entire) was a key source of information for
vouchered historical and current records of both gartersnake species
across their respective ranges. Other sources for current records of
the northern Mexican gartersnake included Cotten et al. (2014, entire),
Holycross et al. (2006, entire), and Rosen et al. (2001, entire).
Christman and Jennings (2017, entire), Hellekson (2012), Jennings et
al. (2017, entire), Jennings and Christman (2019, entire), and Jennings
et al. (2018) were important sources of information pertaining to
narrow-headed gartersnake status in New Mexico. In addition to
reviewing gartersnake-specific survey reports, we also focused on
survey reports and heritage data from State wildlife agencies for fish
and amphibians as they captured important data on the existing
community ecology that affects the status of these gartersnakes within
their ranges. In addition to species data sources, we used publicly
available geospatial datasets depicting water bodies, stream flow,
vegetation type, and elevation to identify areas proposed for critical
habitat.
The maps define the critical habitat designation, as modified by
any accompanying regulatory text, presented at the end of this document
under Proposed Regulation Promulgation. We include more detailed
information on the proposed boundaries of the critical habitat
designation in the preamble of this document. We will make the

[[Page 23625]]

coordinates or plot points or both on which each map is based available
to the public on https://www.regulations.gov at Docket No. FWS-R2-ES-
2020-0011, 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).

Areas Occupied at the Time of Listing

We are proposing for designation of critical habitat lands that we
have determined were occupied at the time of listing and contain one or
more of the physical or biological features to support life-history
processes essential to the conservation of the species. As explained
under Occupancy Records, above, this proposed critical habitat
designation does not include all streams known to have been occupied by
the species historically or the entire stream known to have been
occupied by the species historically. Instead, it focuses on occupied
streams or stream reaches within the historical range with positive
survey records from 1998 to 2019 that have retained the necessary PBFs
that will allow for the maintenance and expansion of existing
populations. In summary, for areas within the geographic area occupied
by the species at the time of listing, we delineated critical habitat
unit boundaries using the following criteria:

Northern Mexican Gartersnake

1. We mapped records of observations of northern Mexican
gartersnake from 1998 to 2019. We then examined these areas to
determine if northern Mexican gartersnake could still occur in them, as
described below.
2. We identified streams in which northern Mexican gartersnakes
were found since 1980 (used flowline layer in the USGS National
Hydrography Dataset to represent stream centerlines).
3. We identified and removed upstream and downstream ends of
streams that were below 130 ft or above 8,500 ft elevation using USGS
National Elevation Dataset.
4. We identified perennial, intermittent, and ephemeral reaches of
streams. We removed end reaches of streams that are ephemeral based on
FCode attribute of the flowline layer in the USGS National Hydrography
Dataset or information from peer review and public comments. We
identified native prey species along each stream using geospatial
datasets, literature, peer review, and public comments.
5. We identified prey species along each stream using geospatial
datasets, literature, peer review, and public comments. We removed
stream reaches that were documented to not contain prey species.
6. We identified and removed stream reaches with an abundance of
nonnative predators including fish, crayfish, or bullfrogs. (We used a
combination of factors to determine nonnative presence and impact to
the species. This evaluation included records from 1980 by looking at
subsequent negative survey data for northern Mexican gartersnakes along
with how the nonnative predator community had changed since those
gartersnakes were found, in addition to the habitat condition and
complexity. Most of the areas surveyed in the 1980s that had been re-
surveyed with negative results for gartersnakes had significant changes
to the nonnative predator community, which also decreased prey
availability for the gartersnakes. These areas were removed from
revised proposed critical habitat.)
7. We identified and removed stream reaches where stocking or
management of predatory sportfish is a priority and is conducted on a
regular basis.
8. We identified and included those stream reaches on private land
without public access that lack survey data but that have positive
survey records from 1998 forward both upstream and downstream of the
private land and have stream reaches with PBFs 1 and 2.
9. We used a surrogate species to determine potential neonate
dispersal along a stream, which is 2.2 miles (3.5 km). We then
identified the most upstream and downstream records of northern Mexican
gartersnake along each continuous stream reach determined by criteria 1
through 8, above, and extended the stream reach to include this
dispersal distance.
10. After identifying the stream reaches that met the above
parameters, we then connected those reaches between that have the PBFs.
We consider these areas between survey records occupied because the
species occurs upstream and downstream and multiple PBFs are present
that allow the species to move through these stream reaches.
11. We identified the springs, cienegas, and natural or constructed
ponds (livestock tanks) in which records of observations of the species
from 1998 to 2019 were found and included them in this revised proposed
critical habitat.
12. We identified ephemeral reaches of occupied perennial or
intermittent streams that serve as corridors between springs, cienegas,
and natural or constructed ponds (livestock tanks).
13. We identified and included the wetland and riparian area
adjacent to streams, springs, cienegas, and ponds to capture the
wetland and riparian habitat needed by the species for
thermoregulation, foraging, and protection from predators. We used the
wetland and riparian layers of the Service's National Wetlands
Inventory dataset and aerial photography in Google Earth Pro to
identify these areas.

Narrow-headed Gartersnake

1. We mapped records of narrow-headed gartersnake from 1998 to
2019. We then examined these areas to determine if narrow-headed
gartersnake could still occur here, as described below.
2. We identified the streams in which narrow-headed gartersnakes
were found since 1998 (used flowline layer in the USGS National
Hydrography Dataset to represent stream centerlines).
3. We identified and removed upstream and downstream ends of
streams that were below 2,300 ft or above 8,200 ft in elevation using
USGS National Elevation Dataset.
4. We identified perennial, intermittent, and ephemeral reaches of
streams. We removed end reaches of streams that are ephemeral or
intermittent based on FCode attribute of the flowline layer in the USGS
National Hydrography Dataset or information from peer review and public
comments.
5. We identified native and nonnative prey species along each
stream using geospatial datasets, literature, peer review, and public
comments. We removed stream reaches that did not have prey species.
6. We identified and removed stream reaches with an abundance of
nonnative predators including fish, crayfish, and bullfrogs. (We
examined a combination of factors to determine nonnative presence and
impact to the species. This included evaluating gartersnake records
from 1998 by looking at subsequent negative survey data for narrow-
headed gartersnakes along with how the nonnative predator community had
changed since those gartersnakes were found, in addition to the habitat
condition and complexity. Most of the areas surveyed in the 1980s that
had been re-surveyed with negative results for gartersnakes had
significant changes to the nonnative predator community, which also
decreased prey availability for the gartersnakes. These areas were
removed from revised proposed critical habitat.)
7. We identified and removed stream reaches where stocking or
management of predatory sportfish is a priority and is conducted on a
regular basis.
8. We identified and included those stream reaches on private land
without

[[Page 23626]]

public access that lack survey data but that have positive narrow-
headed gartersnake survey records from 1998 forward both upstream and
downstream of the private land and have stream reaches with PBFs 1 and
2.
9. We used a surrogate species to determine potential neonate
dispersal along a stream, which is 2.2 mi (3.5 km). We then identified
the most upstream and downstream records of narrow-headed gartersnake
along each continuous stream reach determined by criteria 1 through 8,
above, and extended the reach to include this dispersal distance.
10. After identifying the stream reaches that met the above
parameters, we then connected those reaches between that had the PBFs.
We consider these areas between survey records occupied because the
species occurs upstream and downstream and multiple PBFs are present
that allow the species to move through these stream reaches.
11. We identified the average distance narrow-headed gartersnakes
moved laterally from the water's edge in streams, which is 89 ft (27
m), to capture the wetland and terrestrial habitat needed by the
species for thermoregulation and protection from predators. We used the
wetland layer of the Service's National Wetlands Inventory dataset and
aerial photography in Google Earth Pro to identify the water's edge in
streams.
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 northern Mexican and
narrow-headed gartersnakes. However, constructed fish barriers in
streams within the proposed designated critical habitat are part of the
designation and are needed to manage the exclusion of nonnative
species. The scale of the maps we prepared under the parameters for
publication within the Code of Federal Regulations may not reflect the
exclusion of such developed lands. Any such lands inadvertently left
inside critical habitat boundaries shown on the maps of this proposed
rule have been excluded by text in the proposed rule and are not
proposed for designation as critical habitat. Therefore, if the
critical habitat is finalized as proposed, a Federal action involving
these lands would not trigger section 7 consultation with respect to
critical habitat and the requirement of no adverse modification unless
the specific action would affect the physical or biological features in
the adjacent critical habitat.
We are proposing for designation of critical habitat lands that we
have determined were occupied at the time of listing and contain one or
more of the physical or biological features that are essential to
support life-history processes of the species.

Proposed Critical Habitat Designation

Northern Mexican Gartersnake

We are proposing 241 stream mi (388 km) within the identified
wetland and riparian habitat needed for basking, cover, and foraging,
totaling 27,784 ac (11,244 ha) in nine units as the revised proposed
critical habitat for northern Mexican gartersnake. Land ownership
within proposed critical habitat for the northern Mexican gartersnake
in acres is broken down as follows: Federal (62 percent), State
(Arizona and New Mexico) (5 percent), Tribal (0.3 percent), and private
(32 percent) (see table 2a, below). The critical habitat areas we
describe below constitute our current best assessment of areas that
meet the definition of critical habitat for northern Mexican
gartersnake. We consider all units occupied at the time of listing, and
all units contain essential PBFs that may require special management
considerations or protection.

Table 2a--Land Ownership and Size of Northern Mexican Gartersnake Proposed Critical Habitat Units
[Area estimates reflect all land within critical habitat unit boundaries. County-owned lands are considered as private lands.]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Land ownership by type acres (hectares) Total size
Unit Subunit ---------------------------------------------------------------- acres
Federal State Tribal Private (hectares)
--------------------------------------------------------------------------------------------------------------------------------------------------------
1. Upper Gila River Subbasin.............. Gila River.................. .............. 22 (9) .............. 1,006 (407) 1,028 (416)
Duck Creek.................. .............. .............. .............. 104 (42) 104 (42)
-------------------------------------------------------------------------------
Unit Total............................ ............................ .............. 22 (9) .............. 1,110 (449) 1,132 (458)
2. Tonto Creek............................ ............................ 3,337 (1,350) .............. .............. 966 (391) 4,302 (1,741)
-------------------------------------------------------------------------------
Unit Total............................ ............................ 3,337 (1,350) .............. .............. 966 (391) 4,302 (1,741)
3. Verde River Subbasin................... Verde River................. 646 (261) 570 (231) 88 (36) 2,829 (1,145) 4,133 (1,672)
Oak Creek................... 193 (78) 134 (54) .............. 687 (278) 1,014 (410)
Spring Creek................ 17 (7) 1 (<1) .............. 80 (32) 99 (40)
-------------------------------------------------------------------------------
Unit Total............................ ............................ 856 (346) 705 (285) 88 (36) 3,597 (1,456) 5,246 (2,123)
4. Bill Williams River Subbasin........... Bill Williams River......... 1,002 (405) 202 (82) .............. 601 (243) 1,805 (730)
Big Sandy River............. 339 (137) .............. .............. 593 (240) 932 (377)
Santa Maria River........... 780 (316) .............. .............. 532 (215) 1,312 (531)
-------------------------------------------------------------------------------
Unit Total............................ ............................ 2,121 (858) 202 (82) .............. 1,727 (699) 4,049 (1,639)
5. Lower Colorado River................... ............................ 4,467 (1,808) .............. .............. .............. 4,467 (1,808)
-------------------------------------------------------------------------------
Unit Total............................ ............................ 4,467 (1,808) .............. .............. .............. 4,467 (1,808)
6. Arivaca Cienega........................ ............................ 149 (60) 1 (<1) .............. 62 (25) 211 (86)
-------------------------------------------------------------------------------
Unit Total............................ ............................ 149 (60) 1 (<1) .............. 62 (25) 211 (86)
7. Cienega Creek Subbasin................. Cienega Creek............... 755 (306) 308 (125) .............. 550 (222) 1,613 (653)
Empire Gulch and Empire 268 (109) 57 (23) .............. .............. 326 (132)
Wildlife Pond.

[[Page 23627]]

Gardner Canyon and Maternity 74 (30) .............. .............. .............. 74 (30)
Wildlife Pond.
Unnamed Drainage and Gaucho 15 (6) .............. .............. .............. 15 (6)
Tank.
-------------------------------------------------------------------------------
Unit Total............................ ............................ 1,112 (451) 366 (148) .............. 550 (222) 2,030 (821)
8. Upper Santa Cruz River Subbasin........ Sonoita Creek............... .............. .............. .............. 224 (91) 224 (91)
Cott Tank Drainage.......... 13 (5) .............. .............. .............. 13 (5)
Santa Cruz River............ .............. 70 (28) .............. 91 (37) 161 (65)
Unnamed Drainage and Pasture .............. 36 (15) .............. 5 (2) 42 (17)
9 Tank.
Unnamed Drainage and Sheehy .............. 5 (2) .............. 20 (8) 25 (10)
Spring.
Scotia Canyon............... 31 (13) .............. .............. .............. 31 (13)
FS799 Tank.................. 0.7 (0.3) .............. .............. .............. 0.7 (0.3)
Unnamed Wildlife Pond....... .............. .............. .............. 0.1 (<0.1) 0.1 (<0.1)
Unit Total............................ ............................ 45 (18) 111 (45) .............. 340 (138) 496 (201)
9. Upper San Pedro River Subbasin......... San Pedro River............. 4,911 (1,988) .............. .............. 215 (87) 5,126 (2,074)
Babocomari River............ 197 (80) 8 (3) .............. 199 (81) 404 (164)
O'Donnell Canyon............ 58 (24) .............. .............. 181 (73) 239 (97)
Post Canyon................. 30 (12) .............. .............. 47 (19) 77 (31)
Unnamed Drainage and Finley .............. .............. .............. 3 (1) 3 (1)
Tank.
House Pond.................. 0.6 (0.2) .............. .............. .............. 0.6 (0.2)
-------------------------------------------------------------------------------
Unit Total................................ ............................ 5,197 (2,103) 8 (3) .............. 645 (261) 5,850 (2,367)
Grand Total........................... ............................ 17,284 (6,995) 1,414 (572) 88 (36) 8,996 (3,640) 27,784
(11,244)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.

We present brief descriptions of all units, and reasons why they
meet the definition of critical habitat for northern Mexican
gartersnake, below.
Upper Gila River Subbasin Unit
The Upper Gila River Subbasin Unit is located in southwestern New
Mexico southeast of the towns of Cliff and Gila, in Grant County. This
unit consists of 1,132 ac (458 ha) along 13 stream mi (21 km) in two
subunits with 9 stream mi (14 km) along the Gila River and 4 stream mi
(6 km) along Duck Creek. The New Mexico Department of Game and Fish,
New Mexico State land department, and private entities manage lands
within this unit. Several reaches of the Gila River have been adversely
affected by channelization and diversions, which have reduced or
eliminated base flow. As a whole, this unit contains PBFs 1, 2, and 5,
but PBFs 3 and 4 are in degraded condition. PBFs 6 and 7 do not apply
to this unit. The physical or biological features in this unit may
require special management consideration due to competition with, and
predation by, nonnative species that are present in this unit; water
diversions; channelization; potential for high-intensity wildfires; and
human development of areas adjacent to proposed critical habitat.
Lands owned by Freeport McMoRan in the Upper Gila River Subbasin
Unit on the Gila River and Duck Creek are being considered for
exclusion from the final rule for critical habitat under section
4(b)(2) of the Act. A total of 515 ac (208 ha), or 45 percent, of this
unit are being considered for exclusion (see Application of Section
4(b)(2) of the Act, below).
Tonto Creek Unit
The Tonto Creek Unit is generally located near the towns of Gisela
and Punkin Center, Arizona, in Gila County. This unit consists of 4,302
ac (1,741 ha) of critical habitat along 32 stream mi (52 km) of Tonto
Creek. The downstream end of critical habitat is the spillway elevation
of Theodore Roosevelt Lake (2,120 ft (646 m)) near the confluence with
Bumblebee Creek. The Tonto National Forest is the primary land manager
in this unit, with additional lands privately owned. Some reaches along
Tonto Creek experience seasonal drying because of regional groundwater
pumping, while others are affected by diversions. Development along
private reaches of Tonto Creek may also affect terrestrial
characteristics of northern Mexican gartersnake habitat. Mercury has
been detected in fish samples within Tonto Creek, and further research
is necessary to determine if mercury is bioaccumulating in the resident
food chain. Theodore Roosevelt Lake is a nonnative sport fishery and
supports predators of the northern Mexican gartersnake, so that the
northern Mexican gartersnake may be subject to higher mortality from
predation by nonnative fish at the downstream end of this unit,
especially when the lake level is at spillway elevation. In general,
this unit contains PBFs 1, 2, 3, and 5, but PBF 4 is in degraded
condition. PBFs 6 and 7 do not apply to this unit. The physical or
biological features in this unit may require special management
consideration due to competition with, and predation by, nonnative
species that are present in this unit; water diversions causing loss of
base flow; flood-control

[[Page 23628]]

projects; and development of areas adjacent to or within proposed
critical habitat.
Verde River Subbasin Unit
The Verde River Subbasin Unit is generally located near the towns
of Cottonwood, Cornville, and Camp Verde, Arizona, in Yavapai County.
This unit consists of 5,246 ac (2,123 ha) along 61 stream mi (98 km) in
three subunits: 35 stream mi (56 km) of the Verde River, including
Tavasci Marsh and Peck Lake; 23 stream mi (37 km) of Oak Creek; and 4
stream mi (6 km) of Spring Creek. The Verde River Subbasin Unit occurs
on lands managed by the U.S. Forest Service on Coconino and Prescott
National Forests; National Park Service (NPS) at Tuzigoot National
Monument; Arizona Game and Fish Department at Bubbling Ponds and Page
Springs fish hatcheries; Arizona State Parks at Deadhorse Ranch and
Verde River Greenway State Natural Area; Arizona State Trust; Yavapai-
Apache Nation; and private entities. Crayfish, bullfrogs, and
nonnative, spiny-rayed fish are present in some of this unit. Proposed
groundwater pumping of the Big Chino Aquifer may adversely affect
future base flow in the Verde River. Development along the Verde River
has eliminated habitat along portions of the Verde River through the
Verde Valley. As a whole, this unit contains PBFs 1, 2, 3, and 5, but
PBF 4 is in degraded condition. The physical or biological features in
this unit may require special management consideration due to
competition with, and predation by, nonnative species that are present
in this unit; water diversions; existing and proposed groundwater
pumping potentially resulting in drying of habitat; potential for high-
intensity wildfires; and human development of areas adjacent to
proposed critical habitat.
Lands in the Verde River Subunit include The Nature Conservancy's
Verde Springs Preserve, Verde Valley property, Yavapai-Apache Nation,
and Salt River Project's Camp Verde Riparian Preserve. Lands owned by
the Yavapai-Apache Nation, and lands within Salt River Project's Camp
Verde Riparian Preserve are being considered for exclusion from the
final rule for critical habitat under section 4(b)(2) of the Act. Lands
in Oak Creek Subunit include Arizona Game and Fish Department's (AGFD)
Bubbling Ponds and Page Springs fish hatcheries, which are also being
considered for exclusion from the final rule for critical habitat. A
total of 460 ac (186 ha), or 9 percent, of this unit are being
considered for exclusion (see Application of Section 4(b)(2) of the
Act, below).
Bill Williams River Subbasin Unit
The Bill Williams River Subbbasin Unit is generally located in
western Arizona, northeast of Parker, Arizona, in La Paz and Mohave
Counties. This unit consists of 4,049 ac (1,639 ha) along 29 stream mi
(46 km) in three subunits: 15 stream mi (24 km) of Bill Williams River;
8 stream mi (13 km) of Big Sandy River; and 5 stream mi (9 km) of Santa
Maria River. The Bill Williams River Subbasin Unit occurs on lands
managed by the Bureau of Land Management (BLM) within the Rawhide
Mountains Wilderness, Swansea Wilderness, and Three Rivers Riparian
Area of Critical Environmental Concern (ACEC); Arizona State Parks at
Alamo Lake State Park; Arizona State Land Department; and private
landowners. This unit contains lowland leopard frogs and native fish
appear to be largely absent, although longfin dace have been detected
in the Santa Maria River Subunit. As a whole, this unit contains PBFs
1, 2, 3, and 5, but PBF 4 is in degraded condition. PBFs 6 and 7 do not
apply to this unit. Crayfish and several species of nonnative, spiny-
rayed fish maintain populations in reaches of the three rivers included
in the Bill Williams River Subbasin Unit. The physical or biological
features in this unit may require special management consideration due
to competition with, and predation by, nonnative species that are
present in this unit and flood-control projects.
Lands within the AGFD's Planet Ranch Conservation and Wildlife Area
property in the Bill Williams River Subunit are being considered for
exclusion from the final rule for critical habitat under section
4(b)(2) of the Act. A total of 329 ac (133 ha), or 8 percent, of this
unit are being considered for exclusion (see Application of Section
4(b)(2) of the Act, below).
Lower Colorado River Unit
The Colorado River Unit is generally located in western Arizona in
Mojave County. This unit consist of 4,467 ac (1,808 ha) within the
floodplain of the Colorado River but does not include the main
channelized portion of the river. This unit falls completely within the
Service's Havasu National Wildlife Refuge. Several species of
nonnative, spiny-rayed fish maintain robust populations in this unit.
In general, this unit contains PBFs 1, 2, and 5, but PBFs 3 and 4 are
in degraded condition. PBFs 6 and 7 do not apply to this unit. The
physical or biological features in this unit may require special
management consideration due to competition with, and predation by,
nonnative species that are present in this unit and flood-control
projects. No areas within this unit are considered for exclusion.
Arivaca Cienega Unit
The Arivaca Cienega Unit is generally located in southern Arizona,
in and around the town of Arivaca in Pima County, Arizona. This unit
consists of 211 ac (86 ha), along 3 stream mi (5 km) of Arivaca Creek
within Arivaca Cienega. This unit occurs on lands managed by the
Service at Buenos Aires National Wildlife Refuge, Arizona State Land
Department, and private landowners. Drought, bullfrogs, and crayfish
are a concern in the Arivaca Cienega Unit. In general, this unit
contains PBFs 2 and 5, but PBFs 1, 3, and 4 are in degraded condition.
PBFs 6 and 7 do not apply to this unit. The physical or biological
features in this unit may require special management consideration due
to loss of perennial flow, as well as competition with, and predation
by, nonnative species that are present in this unit. No areas within
this unit are considered for exclusion.
Cienega Creek Subbasin Unit
The Cienega Creek Subbasin Unit is generally located in southern
Arizona southeast of the city of Tucson and town of Vail, north of the
town of Sonoita, west of the Rincon Mountains, and east of the Santa
Rita Mountains in Pima County. This unit consists of 2,030 ac (821 ha)
along 46 stream mi (73 km) in four subunits: 30 stream mi (48 km) of
Cienega Creek; 7 stream mi (11 km) of Empire Gulch, including Empire
Wildlife Pond; 2 stream mi (3 km) of an unnamed drainage to Gaucho
Pond, including Gaucho Pond; and 7 stream mi (11 km) of Gardner Canyon,
including Maternity Wildlife Pond. The unnamed drainage to Gaucho Pond
is an ephemeral channel that may serve as a movement corridor for
northern Mexican gartersnakes. The Cienega Creek Subbasin Unit occurs
on lands managed by BLM on Las Cienegas National Conservation Area
(NCA), Arizona State Land Department, Pima County on Cienega Creek
Preserve, and private landowners. Recent, ongoing bullfrog eradication
on and around Las Cienegas NCA has reduced the threat of bullfrogs in
much of this unit. As a whole, this unit contains PBFs 1, 2, 3, 5, 6,
and 7, but PBF 4 is in degraded condition. Special management may be
required to maintain or develop the physical or biological features,
including continuing to promote the recovery or expansion of native
leopard frogs and fish, continuing bullfrog management, and eliminating
or

[[Page 23629]]

reducing other predatory nonnative species.
Lands within Pima County's Cienega Creek Natural Preserve in the
Cienega Creek Subunit are being considered for exclusion from the final
rule for critical habitat under section 4(b)(2) of the Act. A total of
543 ac (220 ha), or 27 percent, of this unit are being considered for
exclusion (see Application of Section 4(b)(2) of the Act, below).
However, Pima County has requested that these lands not be excluded
from the final rule.
Upper Santa Cruz River Subbasin Unit
The Santa Cruz River Subbasin Unit is generally located in southern
Arizona, south of the town of Sonoita and within the town of Patagonia,
southeast of the Santa Rita Mountains, and west of the Patagonia
Mountains in Santa Cruz and Cochise Counties. This unit consists of 496
ac (201 ha) along 23 stream mi (36 km) in eight subunits: FS 799 Tank;
an unnamed wildlife pond; 3 stream mi (5 km) of Sonoita Creek; 4 stream
mi (7 km) of Scotia Canyon; 2 stream mi (3 km) of Cott Tank Drainage; 7
stream mi (11 km) of Santa Cruz River; 5 stream mi (7 km) of an unnamed
drainage to Pasture 9 Tank, including Pasture 9 Tank; and 2 stream mi
(3 km) of an unnamed drainage to Sheehy Spring, including Sheehy
Spring. The latter two unnamed drainages are ephemeral channels that
may serve as movement corridors for northern Mexican gartersnakes. The
Upper Santa Cruz River Subbasin Unit occurs on lands managed by
Coronado National Forest, Arizona State Parks at San Rafael State
Natural Area, Arizona State Land Department, and private landowners
(including The Nature Conservancy at Patagonia-Sonoita Creek Preserve
and San Rafael Cattle Company at San Rafael Ranch). Native fish,
bullfrogs, Sonoran tiger salamanders, and Chiricahua leopard frogs
provide prey for northern Mexican gartersnakes in the Santa Cruz River
Subbasin Unit. Bullfrogs and nonnative spiny-ray fish remain an issue
in this unit. As a whole, this unit contains PBFs 1, 2, 3, 5, 6, and 7,
but PBF 4 is in degraded condition. Special management may be required
to maintain or develop the physical or biological features, including
continuing to promote the recovery or expansion of native leopard frogs
and fish, and eliminating or reducing predatory nonnative species.
Lands within the San Rafael Cattle Company's San Rafael Ranch in
the Santa Cruz River Subunit, Unnamed Drainage and Pasture 9 Tank
Subunit, and Unnamed Drainage and Sheehy Spring Subunit are being
considered for exclusion from the final rule for critical habitat under
section 4(b)(2) of the Act. Lands within The Nature Conservancy's
Patagonia-Sonoita Creek Preserve in the Sonoita Creek Subunit, as well
as the Unnamed Wildlife Pond Subunit, which are both on private lands,
are also being considered for exclusion. A total of 238 ac (96 ha), or
48 percent, of this unit are being considered for exclusion (see
Application of Section 4(b)(2) of the Act, below).
Upper San Pedro River Subbasin Unit
The Upper San Pedro River Subbasin Unit is generally located in
southeastern Arizona, east and west of Sierra Vista and south of the
town of Elgin, in Cochise and Santa Cruz Counties. This unit consists
of 5,850 ac (2,367 ha) in six subunits along 35 stream mi (57 km): 22
stream mi (35 km) of the San Pedro River; 6 stream mi (10 km) of the
Babocomari River; 4 stream mi (7 km) in O'Donnell Canyon; 3 stream mi
(5 km) in Post Canyon; 0.5 stream mi (0.7 km) in an ephemeral drainage
to Finley Tank, including Finley Tank; and House Pond. The Upper San
Pedro River Subbasin Unit occurs primarily on lands managed by BLM on
the San Pedro River Riparian and Las Cienegas NCAs, and also includes
lands managed by the U.S. Forest Service on Coronado National Forest,
Arizona State Land Department, and private entities. The unit includes
portions of the Canelo Hills Preserve owned by The Nature Conservancy
and portions of the Appleton-Whittell Research Ranch managed by several
private and Federal landowners. Native fish and leopard frogs occur in
House Pond and O'Donnell Canyon subunits and provide a prey base for
northern Mexican gartersnakes. Crayfish, bullfrogs, and nonnative,
spiny-rayed fish occur in the San Pedro River and Babocomari subunits
and are an ongoing threat to northern Mexican gartersnakes. As a whole,
this unit contains PBFs 1, 2, 5, 6, and 7, but PBFs 3 and 4 are in
degraded condition. The physical or biological features in Upper San
Pedro River Subbasin Unit may require special management consideration
due to competition with, and predation by, predatory nonnative species
that are present in this unit.
Lands owned by The Nature Conservancy at Canelo Hills Preserve and
lands owned by the National Audubon Society at Appleton-Whittell
Research Ranch in the O'Donnell Canyon Subunit are being considered for
exclusion from the final rule for critical habitat. In addition, Fort
Huachuca has requested the Service to consider for exclusion based on
national security lands managed by BLM, Arizona State Land Department,
and private entities within the San Pedro River and Babocomari River
subunits. A total of 5,320 ac (2,152 ha), or 91 percent, of this unit
are being considered for exclusion (see Application of Section 4(b)(2)
of the Act, below).

Narrow-Headed Gartersnake

We are proposing 461 stream mi (742 km) within a 89-ft (27-m)
lateral extent of the active stream channel, totaling 18,701 ac (7,568
ha) comprising 8 units as critical habitat for the narrow-headed
gartersnake in Greenlee, Graham, Apache, Yavapai, Gila, and Coconino
Counties in Arizona, as well as in Grant, Hidalgo, and Catron Counties
in New Mexico. Land ownership within proposed critical habitat for the
narrow-headed gartersnake is broken down as follows: Federal (66
percent), State (Arizona and New Mexico) (2 percent), Tribal (3
percent), and private (29 percent) (see table 2b, below). The critical
habitat areas we describe below constitute our current best assessment
of areas that meet the definition of critical habitat for narrow-headed
gartersnake. We consider all units occupied at the time of listing, and
all units contain essential PBFs that may require special management
considerations or protection.

Table 2b--Land Ownership and Size of Narrow-Headed Gartersnake Proposed Critical Habitat Units
[Area estimates reflect all land within critical habitat unit boundaries. County-owned lands are considered as private lands.]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Land ownership by type acres (hectares)
Unit Subunit ---------------------------------------------------------------- Size of unit
Federal State Tribal Private
--------------------------------------------------------------------------------------------------------------------------------------------------------
1. Upper Gila River Subbasin.............. Gila River.................. 1,123 (455) 119 (48) .............. 2,267 (917) 3,510 (1,420)

[[Page 23630]]

West Fork Gila River........ 358 (145) 154 (62) .............. 51 (20) 562 (228)
Little Creek................ 157 (64) 5 (2) .............. .............. 162 (65)
Middle Fork Gila River...... 569 (230) .............. .............. .............. 569 (230)
Iron Creek.................. 58 (23) .............. .............. .............. 58 (23)
Gilita Creek................ 149 (60) .............. .............. .............. 149 (60)
Black Canyon................ 245 (99) .............. .............. 6 (2) 251 (102)
Diamond Creek............... 169 (68) .............. .............. .............. 169 (68)
-------------------------------------------------------------------------------
Unit Total............................ ............................ 2,827 (1,144) 278 (113) .............. 2,323 (940) 5,429 (2,197)
2. San Francisco River Subbasin........... San Francisco River......... 1,679 (680) .............. .............. 1,441 (583) 3,121 (1,263)
Whitewater Creek............ 112 (45) .............. .............. 96 (39) 208 (84)
Saliz Creek................. 182 (74) .............. .............. 36 (15) 218 (88)
Tularosa River.............. 338 (137) .............. .............. 492 (199) 829 (336)
Negrito Creek............... 272 (110) .............. .............. 65 (26) 337 (136)
South Fork Negrito Creek.... 171 (69) .............. .............. 21 (9) 192 (78)
-------------------------------------------------------------------------------
Unit Total............................ ............................ 2,753 (1,114) .............. .............. 2,152 (871) 4,905 (1,985)
3. Blue River Subbasin.................... Blue River.................. 2,105 (852) .............. .............. 399 (162) 2,504 (1,013)
Campbell Blue Creek......... 300 (121) .............. .............. 61 (25) 361 (146)
Dry Blue Creek.............. 106 (43) .............. .............. .............. 106 (43)
-------------------------------------------------------------------------------
Unit Total............................ ............................ 2,510 (1,016) .............. .............. 460 (186) 2,971 (1,202)
4. Eagle Creek............................ ............................ 99 (40) .............. 236 (96) 1 (<1) 336 (136)
-------------------------------------------------------------------------------
Unit Total............................ ............................ 99 (40) .............. 236 (96) 1 (<1) 336 (136)
5. Black River Subbasin................... Black River................. 653 (264) .............. 111 (45) .............. 763 (309)
Bear Wallow Creek........... 127 (51) .............. 47 (19) .............. 174 (71)
North Fork Bear Wallow Creek 61 (25) .............. .............. .............. 61 (25)
Reservation Creek........... 96 (39) .............. 36 (14) .............. 132 (54)
Fish Creek.................. 107 (43) .............. .............. .............. 107 (43)
East Fork Black River....... 370 (150) .............. .............. .............. 370 (150)
-------------------------------------------------------------------------------
Unit Total............................ ............................ 1,414 (572) .............. 194 (78) .............. 1,607 (650)
6. Canyon Creek........................... ............................ 155 (63) .............. 77 (31) .............. 232 (94)
-------------------------------------------------------------------------------
Unit Total............................ ............................ 155 (63) .............. 77 (31) .............. 232 (94)
7. Tonto Creek Subbasin................... Tonto Creek................. 1,003 (406) .............. .............. 75 (30) 1,078 (436)
Houston Creek............... 16 (6) .............. .............. 2 (1) 18 (7)
Haigler Creek............... 266 (108) .............. .............. 28 (11) 294 (119)
-------------------------------------------------------------------------------
Unit Total............................ ............................ 1,285 (520) .............. .............. 105 (43) 1,390 (562)
8. Verde River Subbasin................... Verde River................. 823 (333) .............. .............. 101 (41) 923 (374)
Oak Creek................... 360 (146) 51 (21) .............. 337 (136) 748 (303)
West Fork Oak Creek......... 161 (65) .............. .............. .............. 161 (65)
-------------------------------------------------------------------------------
Unit Total............................ ............................ 1,343 (544) 51 (21) .............. 437 (177) 1,832 (741)
-------------------------------------------------------------------------------
Total............................. ............................ 12,386 (5,013) 329 (133) 507 (205) 5,479 (2,217) 18,701 (7,568)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.

We present brief descriptions of all units, and reasons why they
meet the definition of critical habitat for narrow-headed gartersnake,
below.
Gila River Subbasin Unit
The Gila River Subbasin Unit is generally located in southwestern
New Mexico, east of Glenwood, and west and north of Silver City in
Grant and Hidalgo Counties, New Mexico. This unit consists of 5,429 ac
(2,197 ha) in 8 subunits along 104 stream mi (167 km): 46 stream mi (74
km) of the Gila River, 12 stream mi (19 km) of West Fork Gila River, 14
stream mi (23 km) of Middle Fork Gila River, 10 stream mi (16 km) of
Black Canyon, 6 stream mi (10 km) of Diamond Creek, 6 stream mi (10 km)
of Gilita Creek, 2 stream mi (3 km) of Iron Creek, and 7 stream mi (11
km) of Little Creek. The Gila River Subbasin Unit consists of lands
primarily managed by the U.S. Forest Service on the Gila National
Forest; BLM within the Lower Box and Middle Gila Box ACECs and Gila
Lower Box Wilderness Study Area; NPS on Gila Cliff Dwellings National
Monument; New Mexico Department of Game and Fish on Heart Bar Wildlife
Area, Redrock State Wildlife Experimental Area, and Gila Bird Area;
State Trust lands; and private ownership, including lands owned by
Freeport McMoRan Corporation.

[[Page 23631]]

Some reaches of the Gila River have been adversely affected by
channelization and water diversions. In November 2014, the New Mexico
Interstate Stream Commission provided notice to the Secretary of the
Interior that the State of New Mexico intends to construct the New
Mexico Unit of the Central Arizona Project as authorized by the
Colorado River Basin Project Act of 1968 (Central Arizona Project 2015,
p. 5-6). The New Mexico Unit of the Central Arizona Project will divert
up to 14,000 ac-ft per year from the upper Gila River and its
tributaries for consumptive use in New Mexico. However, the Secretary
of the Interior denied an extension to divert additional funding, and
no record of decision for a project design was issued by a December 31,
2019, deadline. Therefore, the future of the project is unknown.
Historically, the West and Middle Forks Gila River maintained large
populations of bullfrogs and nonnative, spiny-rayed fish. Wildfires
have burned at both moderate and high severity within the unit and
likely resulted in significant flooding with excessive ash and sediment
loads. These sediment and ash-laden floods can reduce populations of
both nonnative predatory species and native prey species for narrow-
headed gartersnakes in affected streams for many years. The Gila River,
West Fork Gila River, Little Creek, Iron Creek, Black Canyon, and
Diamond Creek subunits have PBFs 1, 2, 3, and 5, but PBF 4 is in
degraded condition. The Middle Fork Gila River Subunit has PBF 1, 2, 4,
and 5 but PBF 3 is in degraded condition. The physical or biological
features in this unit may require special management consideration due
to competition with, and predation by, nonnative species that are
present in this unit; water diversions; channelization; potential for
high-intensity wildfires; and human development of areas adjacent to
proposed critical habitat.
Lands owned by Freeport McMoRan Corporation along the Gila River in
the Gila River Subunit are being considered for exclusion from the
final rule for critical habitat under section 4(b)(2) of the Act. A
total of 563 ac (228 ha), or 10 percent, of this unit are being
considered for exclusion (see Application of Section 4(b)(2) of the
Act, below).
San Francisco River Subbasin Unit
The San Francisco River Subbasin Unit is generally located in
southwestern New Mexico near the towns of Glenwood and Reserve, and
east of Luna, in Catron County. This unit consists of 4,905 ac (1,985
ha) in 6 subunits along 129 stream mi (207 km): 71 stream mi (115 km)
of San Francisco River, 9 stream mi (14 km) of Whitewater Creek, 8
stream mi (13 km) of Saliz Creek, 20 stream mi (32 km) of Tularosa
River, 13 stream mi (21 km) of Negrito Creek, and 8 stream mi (13 km)
of South Fork Negrito Creek. The San Francisco River Subbasin Unit
consists of lands managed primarily by the U.S. Forest Service on Gila
National Forest and private landowners.
Water diversions have dewatered sections of the San Francisco River
Subunit in the upper Alma Valley and at Pleasanton, New Mexico. The San
Francisco River Subunit also has historically maintained populations of
bullfrogs, crayfish, and nonnative, spiny-rayed fish at various
densities along its course. Wildfires have burned at both moderate and
high severity within the unit and likely resulted in significant
flooding with excessive ash and sediment loads. These sediment and ash-
laden floods can reduce populations of both nonnative predatory species
and native prey species for narrow-headed gartersnakes in affected
streams for many years. San Francisco River Subunit has PBFs 1, 2, and
5, but PBFs 3 and 4 are in degraded condition. Whitewater Creek Subunit
has PBFs 1, 2, 4, and 5, but PBF 3 is in degraded condition. Tularosa
River, Saliz Creek, Negrito Creek, and subunits have PBFs 1, 2, 3, and
5, but PBF 4 is in degraded condition. South Fork Negrito Creek Subunit
has adequate PBFs. The physical or biological features in this unit may
require special management consideration due to competition with, and
predation by, nonnative species that are present in this unit; water
diversions that reduce base flow; potential for high-intensity
wildfires; and human recreation and development of areas adjacent to
proposed critical habitat. No areas within this unit are considered for
exclusion.
Blue River Subbasin Unit
The Blue River Subbasin Unit is generally located near the east
central border of Arizona northeast of Clifton in Greenlee County, and
just into west-central New Mexico in Catron County. This unit consists
of a total of 2,971 ac (1,202 ha) along 64 stream mi (103 km): 52
stream mi (84 km) of Blue River, 7 stream mi (11 km) of Campbell Blue
Creek, and 4 stream mi (6 km) of Dry Blue Creek. Blue River Subbasin
Unit consists of lands managed primarily by the U.S. Forest Service on
Gila and Apache-Sitgreaves National Forests, and private landowners.
The fish community of the Blue River is highly diverse and largely
native, but nonnative fish are present. Native fish restoration is
actively occurring in the Blue River, including construction of a fish
barrier, mechanical removal of nonnative fish, and repatriation and
monitoring of federally listed warm-water fishes (Robinson and Crowder
2015, p. 24; Robinson and Love-Chezem 2015, entire). Wildfires have
burned at both moderate and high severity within the unit and likely
resulted in significant flooding with excessive ash and sediment loads.
These sediment and ash-laden floods can reduce populations of both
nonnative predatory species and native prey species for narrow-headed
gartersnakes in affected streams for many years. The Blue River and Dry
Blue Creek subunits have PBFs 1, 2, 3, and 5, but PFB 4 is in degraded
condition. Campbell Blue Creek Subunit has PBFS 1, 2, 4, and 5, but PBF
3 may be in degraded condition. The physical or biological features in
this unit may require special management consideration to maintain or
develop physical or biological features, including preventing
reinvasion of nonnative species, and continuing to reestablish native
prey species. No areas within this unit are considered for exclusion.
Eagle Creek Unit
The Eagle Creek Unit is generally located in eastern Arizona near
Morenci and includes portions of Graham and Greenlee Counties. This
unit consists of a total of 336 ac (136 ha) along 7 stream mi (11 km)
of Eagle Creek. The majority of lands within this unit are managed by
the San Carlos Apache Tribe and the U.S. Forest Service on the Gila
National Forest. This unit has PBFs 1, 2, 3, and 5, but PBF 4 is
deficient. Special management in this unit may be required to maintain
or develop the physical or biological features, including the
elimination or reduction of crayfish and nonnative, spiny-rayed fish,
as well as maintenance of adequate base flow in Eagle Creek.
Lands owned by the San Carlos Apache Tribe in the Eagle Creek Unit
are being considered for exclusion from the final rule for critical
habitat under section 4(b)(2) of the Act. A total of 236 ac (96 ha), or
70 percent, of this unit are being considered for exclusion (see
Application of Section 4(b)(2) of the Act, below).
Black River Subbasin Unit
The Black River Subbasin Unit is generally located along the
Mogollon Rim in east-central Arizona, east of Maverick and west of
Hannigan Meadow, and includes portions of Apache, Graham, and Greenlee

[[Page 23632]]

Counties. This unit consists of a total of 1,607 ac (650 ha) in 6
subunits along 51 stream mi (82 km): 23 stream mi (37 km) of Black
River, 6 stream mi (10 km) of Bear Wallow Creek, 2 stream mi (3 km) of
North Fork Bear Wallow Creek, 5 stream mi (8 km) of Reservation Creek,
4 stream mi (6 km) of Fish Creek, and 12 stream mi (19 km) of East Fork
Black River. The majority of lands within this unit are managed by the
U.S. Forest Service on Apache-Sitgreaves National Forest, with
additional lands managed by the White Mountain Apache and San Carlos
Apache Tribes.
Water in the Black River Subbasin is diverted for use at the
Morenci Mine, which may affect base flow. Wildfires have burned at both
moderate and high severity within the unit and likely resulted in
significant flooding with excessive ash and sediment loads. These
sediment and ash-laden floods can reduce populations of both nonnative
predatory species and native prey species for narrow-headed
gartersnakes in affected streams for many years. In general, this unit
has PBFs 1, 2, 3, and 5, but PBF 4 is in degraded condition. The
physical or biological features in this unit may require special
management consideration due to competition with, and predation by,
nonnative species that are present in this unit; water diversions;
potential for high-intensity wildfires; and human development of areas
adjacent to proposed critical habitat.
Lands owned by the White Mountain Apache and San Carlos Apache
Tribes along the Black River, Bear Wallow Creek, and Reservation Creek
of the Black River Subbasin Unit are being considered for exclusion
from the final rule for critical habitat under section 4(b)(2) of the
Act. A total of 195 ac (79 ha), or 12 percent, of this unit are being
considered for exclusion (see Application of Section 4(b)(2) of the
Act, below).
Canyon Creek Unit
The Canyon Creek Unit is generally located along the Mogollon Rim
in east-central Arizona, and falls within Gila County. This unit
consists of 232 ac (94 ha) along 8 stream mi (13 km) of Canyon Creek.
The Tonto National Forest manages the majority of lands within this
unit; however, the White Mountain Apache Tribe also has land within
this unit. This unit contains sufficient physical or biological
features, but these features may require special management
consideration including preventing invasion by nonnative predatory
species as well as the potential for high-intensity wildfires.
Lands owned by the White Mountain Apache Tribe in the Canyon Creek
Unit are being considered for exclusion from the final rule for
critical habitat under section 4(b)(2) of the Act. A total of 77 ac (31
ha), or 33 percent, of this unit are being considered for exclusion
(see Application of Section 4(b)(2) of the Act, below).
Tonto Creek Subbasin Unit
The Tonto Creek Subbasin Unit is generally located southeast of
Payson, Arizona, and northeast of the Phoenix metropolitan area, in
Gila County. This unit consists of a total of 1,390 ac (562 ha) in 3
subunits along 41 stream mi (66 km): 28 stream mi (45 km) of Tonto
Creek, 1 stream mi (2 km) of Houston Creek, and 12 stream mi (19 km) of
Haigler Creek. Land ownership or land management within this unit
consists of lands managed by the U.S. Forest Service on Tonto National
Forest in the Hellsgate Wilderness and privately owned lands.
Some reaches along Tonto Creek experience seasonal drying as a
result of regional groundwater pumping, while others are or may be
affected by diversions or existing or planned flood control projects.
Development along private reaches of Tonto Creek may also affect
terrestrial characteristics of narrow-headed gartersnake habitat.
Mercury has been detected in fish samples within Tonto Creek, and
further research is necessary to determine if mercury is
bioaccumulating in the resident food chain. In general, this unit has
PBFs 1, 2, 3, and 5, but PBF 4 is in degraded condition. The physical
or biological features in this unit may require special management
consideration due to competition with, and predation by, nonnative
species that are present in this unit; water diversions; flood-control
projects; potential for high-intensity wildfires; and development of
areas adjacent to or within proposed critical habitat. No areas within
this unit are considered for exclusion.
Verde River Subbasin Unit
The Verde River Subbasin Unit is generally located near
Perkinsville and Sedona, Arizona, west of Paulden, Arizona, in Coconino
and Yavapai Counties. This unit consists of 1,832 ac (741 ha) in 3
subunits along 58 stream mi (93 km): 27 stream mi (43 km) of Verde
River, 24 stream mi (39 km) of Oak Creek, and 7 stream mi (11 km) of
West Fork Oak Creek. Verde River Subbasin Unit occurs on lands managed
by the U.S. Forest Service on Prescott and Coconino National Forests,
Arizona State Parks at Redrock State Park, and private entities.
Proposed groundwater pumping of the Big Chino Aquifer may adversely
affect future base flow in the Verde River. In general, the physical or
biological features in this unit are sufficient, but may require
special management consideration due to competition with, and predation
by, nonnative species that are present; water diversions; groundwater
pumping potentially resulting in drying of habitat; potential for high-
intensity wildfires; and human development of areas adjacent to
proposed critical habitat. No areas within this unit are considered for
exclusion.

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.
We published a final rule with a revised definition of destruction
or adverse modification on August 27, 2019 (84 FR 44976). Destruction
or adverse modification means a direct or indirect alteration that
appreciably diminishes the value of critical habitat as a whole for the
conservation of a listed species.
If a Federal action may affect a listed species or its critical
habitat, the responsible Federal agency (action agency) must enter into
consultation with us. Examples of actions that are subject to the
section 7 consultation process are actions on State, tribal, local, or
private lands that require a Federal permit (such as a permit from the
U.S. Army Corps of Engineers under section 404 of the Clean Water Act
(33 U.S.C. 1251 et seq.) or a permit from the Service under section 10
of the Act) or that involve some other Federal action (such as funding
from the Federal Highway Administration, Federal Aviation
Administration, or the Federal 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, authorized, or carried out by a Federal

[[Page 23633]]

agency--do not require section 7 consultation.
Compliance with the requirements of section 7(a)(2) of the Act is
documented 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 set forth requirements for Federal
agencies to reinitiate formal consultation on previously reviewed
actions. These requirements apply when the Federal agency has retained
discretionary involvement or control over the action (or the agency's
discretionary involvement or control is authorized by law) and,
subsequent to the previous consultation, we have listed a new species
or designated critical habitat that may be affected by the Federal
action, or the action has been modified in a manner that affects the
species or critical habitat in a way not considered in the previous
consultation. In such situations, Federal agencies sometimes may need
to request reinitiation of consultation with us, but the regulations
also specify some exceptions to the requirement to reinitiate
consultation on specific land management plans after subsequently
listing a new species or designating new critical habitat. See the
regulations for a description of those exceptions.

Application of the ``Adverse Modification'' Standard

The key factor related to the destruction or adverse modification
determination is whether implementation of the proposed Federal action
directly or indirectly alters the designated critical habitat in a way
that appreciably diminishes the value of the critical habitat as a
whole for the conservation of the listed species. 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 violate 7(a)(2)
of the Act by destroying or adversely modifying such habitat, or that
may be affected by such designation.
Activities that the Services may, during a consultation under
section 7(a)(2) of the Act, find are likely to destroy or adversely
modify critical habitat include, but are not limited to:
(1) Actions that would alter the amount, timing, or frequency of
flow within a stream or the quantity of available water within wetland
habitat such that the prey base for either gartersnake species, or the
gartersnakes themselves, are appreciably diminished or threatened with
extirpation. Such activities could include, but are not limited to:
Water diversions; channelization; construction of any barriers or
impediments within the active river channel; removal of flows in excess
of those allotted under a given water right; construction of permanent
or temporary diversion structures; groundwater pumping within aquifers
associated with the river; or dewatering of isolated within-channel
pools or stock tanks. These activities could result in the reduction of
the distribution or abundance of important gartersnake prey species, as
well as reduce the distribution and amount of suitable physical habitat
on a regional landscape for the gartersnakes themselves.
(2) Actions that would significantly increase sediment deposition
or scouring within the stream channel or pond that is habitat for the
northern Mexican or narrow-headed gartersnake, or one or more of their
prey species within the range of either gartersnake species. Such
activities could include, but are not limited to: Poorly managed
livestock grazing; road construction; commercial or urban development;
channel alteration; timber harvest; prescribed fires or wildfire
suppression; off-road vehicle or recreational use; and other
alterations of watersheds and floodplains. These activities could
adversely affect the potential for gartersnake prey species to survive
or breed. They may also reduce the likelihood that their prey species,
leopard frogs for northern Mexican gartersnake for example, could move
among subpopulations in a functioning metapopulation. This would, in
turn, decrease the viability of metapopulations and their component
local populations of prey species.
(3) Actions that would alter water chemistry beyond the tolerance
limits of a gartersnake prey base. Such activities could include, but
are not limited to: Release of chemicals, biological pollutants, or
effluents into the surface water or into connected groundwater at a
point source or by dispersed release (non-point source); aerial
deposition of known toxicants, such as mercury, that are positively
correlated to regional exceedances of water quality standards for these
toxicants; livestock grazing that results in waters heavily polluted by
feces; runoff from agricultural fields; roadside use of salts; aerial
pesticide overspray; runoff from mine tailings or other mining
activities; and ash flow and fire retardants from fires and fire
suppression. These actions could adversely affect the ability of the
habitat to support survival and reproduction of gartersnake prey
species.
(4) Actions that would remove, diminish, or significantly alter the
structural complexity of key natural structural habitat features in and
adjacent to aquatic habitat. These features may be organic or
inorganic, may be natural or constructed, and include (but are not
limited to) boulders and boulder piles, rocks such as river cobble,
downed trees or logs, debris jams, small mammal burrows, or leaf
litter. Such activities could include, but are not limited to:
Construction projects; flood control projects; vegetation management
projects; or any project that requires a 404 permit from the U.S. Army
Corps of Engineers. These activities could result in a reduction of the
amount or distribution of these key habitat features that are important
for gartersnake thermoregulation, shelter, protection from predators,
and foraging opportunities.

[[Page 23634]]

(5) Actions and structures that would physically block movement of
gartersnakes or their prey species within or between regionally
proximal populations or suitable habitat. Such actions and structures
include, but are not limited to: Urban, industrial, or agricultural
development; reservoirs stocked with predatory fishes, bullfrogs, or
crayfish; highways that do not include reptile and amphibian fencing
and culverts; and walls, dams, fences, canals, or other structures that
could physically block movement of gartersnakes. These actions and
structures could reduce or eliminate immigration and emigration among
gartersnake populations, or that of their prey species, reducing the
long-term viability of populations.
(6) Actions that would directly or indirectly result in the
introduction, spread, or augmentation of predatory nonnative species in
gartersnake habitat, or in habitat that is hydrologically connected,
even if those segments are occasionally intermittent, or introduction
of other species that compete with or prey on either gartersnake
species or their prey base, or introduce pathogens such as
Batrachochytrium dendrobatidis, which is a serious threat to the
amphibian prey base of northern Mexican gartersnakes. Possible actions
could include, but are not limited to: Introducing or stocking
nonnative, spiny-rayed fishes, bullfrogs, crayfish, tiger salamanders,
or other predators of the prey base of northern Mexican or narrow-
headed gartersnakes; creating or sustaining a sport fishery that
encourages use of nonnative live fish, crayfish, tiger salamanders, or
frogs as bait; maintaining or operating reservoirs that act as source
populations for predatory nonnative species within a watershed;
constructing water diversions, canals, or other water conveyances that
move water from one place to another and through which inadvertent
transport of predatory nonnative species into northern Mexican or
narrow-headed gartersnake habitat may occur; and moving water, mud, wet
equipment, or vehicles from one aquatic site to another, through which
inadvertent transport of pathogens may occur. These activities directly
or indirectly cause unnatural competition with and predation from
nonnative predators on these gartersnake species, leading to
significantly reduced recruitment within gartersnake populations and
diminishment or extirpation of their prey base.
(7) Actions that would deliberately remove, diminish, or
significantly alter the native or nonnative, soft-rayed fish component
of the narrow-headed gartersnake prey base within occupied habitat for
a period of 7 days or longer. In general, these actions typically occur
in association with fisheries management, such as the application of
piscicides in conjunction with fish barrier construction. These
activities are designed to completely remove target fish species from a
treatment area and, if the area is fishless for an extended period of
time, could result in starvation of a resident narrow-headed
gartersnake population.

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.

Exclusions

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

Section 4(b)(2) of the Act states that the Secretary shall
designate and make revisions to critical habitat on the basis of the
best available scientific data after taking into consideration the
economic impact, national security impact, and any other relevant
impact of specifying any particular area as critical habitat. The
Secretary may exclude an area from 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 the determination to exclude a particular area, 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.
The first sentence in section 4(b)(2) of the Act requires that we
take into consideration the economic, national security or other
relevant impacts of designating any particular area as critical
habitat. We describe below the process that we undertook for taking
into consideration each category of impacts and our analyses of the
relevant impacts.
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 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

[[Page 23635]]

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 northern Mexican
gartersnake and the narrow-headed gartersnake (Industrial Economics
2019, entire). We began by conducting a screening analysis of the
proposed designation of critical habitat in order to focus our analysis
on the key factors that are likely to result in incremental economic
impacts. The purpose of the screening analysis is to filter out the
geographic areas in which the critical habitat designation is unlikely
to result in probable incremental economic impacts. In particular, the
screening analysis considers baseline costs (i.e., absent critical
habitat designation) and includes probable economic impacts where land
and water use may be subject to conservation plans, land management
plans, best management practices, or regulations that protect the
habitat area as a result of the Federal listing status of the species.
The screening analysis filters out particular areas of critical habitat
that are already subject to such protections and 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 species and may require
additional management or conservation efforts as a result of the
critical habitat designation for the species which may incur
incremental economic impacts. This screening analysis, combined with
the information contained in our IEM, are what we consider our draft
economic analysis (DEA) of the proposed critical habitat designation
for the northern Mexican gartersnake and the narrow-headed gartersnake.
The DEA 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 northern Mexican gartersnake
and the narrow-headed gartersnake, first we identified, in the IEM
dated October 10, 2019, probable incremental economic impacts
associated with the following categories of activities: (1) Federal
lands management (National Park Service, U.S. Forest Service, Bureau of
Land Management, Service, Department of Defense); (2) grazing (U.S.
Forest Service, Bureau of Indian Affairs, Bureau of Land Management);
(3) groundwater pumping (U.S. Forest Service, Bureau of Land
Management, Department of Defense); (4) in-stream dams and diversions
(Bureau of Land Management, Bureau of Reclamation, Service, Department
of Defense); (5) dredging (Army Corps of Engineers, U.S. Forest
Service, Bureau of Land Management, Natural Resources Conservation
Service, National Park Service, Bureau of Indian Affairs); (6) water
supply (Bureau of Reclamation, Army Corps of Engineers, Service, Bureau
of Indian Affairs); (7) conservation and restoration (Natural Resources
Conservation Service, Service, U.S. Forest Service, Department of
Defense, Bureau of Land Management, National Park Service); (8) mining
(U.S. Forest Service, Bureau of Land Management); (9) fire management
(National Park Service, U.S. Forest Service, Bureau of Land Management,
Bureau of Indian Affairs, Department of Defense); (10) vegetation and
forest management (National Park Service, U.S. Forest Service, Bureau
of Land Management); (11) transportation, including road and bridge
construction and maintenance (Department of Transportation, Department
of Defense, Bureau of Land Management, National Park Service, U.S.
Forest Service, Customs and Border Protection, Bureau of Indian
Affairs, Army Corps of Engineers); (12) recreation, including, but not
limited to, sport fishing, sport-fish stocking, and off-highway vehicle
use (National Park Service, U.S. Forest Service, Bureau of Land
Management); (13) border protection and national security (U.S. Customs
and Border Protection, Department of Defense); (14) renewable energy
(Bureau of Indian Affairs, Department of Transportation, Bureau of Land
Management); and (15) commercial or residential development (Army Corps
of Engineers). 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; under the Act,
designation of critical habitat only affects activities conducted,
funded, permitted, or authorized by Federal agencies. In areas where
the northern Mexican gartersnake or the narrow-headed gartersnake 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 species. If we finalize this revised
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 will result from the species being listed and those
attributable to the critical habitat designation (i.e., difference
between the jeopardy and adverse modification standards) for the
northern Mexican gartersnake's and the narrow-headed gartersnake's
critical habitat. The following specific circumstances 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 species, and (2) any actions that would result
in sufficient harm or harassment to constitute jeopardy to the northern
Mexican gartersnake and the narrow-headed gartersnake 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
species. 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 northern Mexican
gartersnake 27,784 ac (11,244 ha) comprising 9 units. Land ownership
within proposed critical habitat for the northern Mexican gartersnake
in acres is broken down as follows: Federal (62 percent), State
(Arizona and New Mexico) (5 percent), Tribal (0.3 percent), and private
(32 percent) (see table 2a, above). All units are considered occupied.
The proposed critical habitat designation for the narrow-headed
gartersnake 18,701 ac (7,568 ha)

[[Page 23636]]

comprising 8 units. Land ownership within proposed critical habitat for
the narrow-headed gartersnake in acres is broken down as follows:
Federal (66 percent), State (Arizona and New Mexico) (2 percent),
Tribal (3 percent), and private (29 percent) (see table 2b, above). All
units are considered occupied.
In these areas, any actions that may affect the species would also
affect designated critical habitat because the species is so dependent
on habitat to fulfill its life-history functions. Therefore, any
conservation measures to address impacts to the species would be the
same as those to address impacts to critical habitat. Consequently, it
is unlikely that any additional conservation efforts would be
recommended to address the adverse modification standard over and above
those recommended as necessary to avoid jeopardizing the continued
existence of the both gartersnakes. Further, every unit of proposed
critical habitat overlaps with the ranges of a number of currently
listed species and designated critical habitats. Therefore, the actual
number of section 7 consultations is not expected to increase at all.
The consultation would simply have to consider an additional species or
critical habitat unit. While this additional analysis will require time
and resources by the Federal action agency, the Service, and third
parties, the probable incremental economic impacts of the critical
habitat designation are expected to be limited to additional
administrative costs and would not be significant (Industrial Economics
2019, entire). This is due to all units being occupied by either the
northern Mexican gartersnake or the narrow-headed gartersnake.
Based on consultation history for the gartersnakes, the number of
future consultations, including technical assistances, is likely to be
no more than 21 per year. The additional administrative cost of
addressing adverse modification in these consultations is likely to be
less than $61,000 in a given year, including costs to the Service, the
Federal action agency, and third parties (Industrial Economics 2019 p.
14), with approximately $28,000 for formal consultations, $32,000 for
informal consultations, and $1,100 for technical assistances. This is
based on an individual technical assistance costing $410, informal
consultation costing $2,500, and formal consultation costing $9,600.
Therefore, the incremental costs associated with critical habitat are
unlikely to exceed $100 million in any single year and, therefore,
would not be significant.
To predict which units of proposed critical habitat are likely to
experience the highest estimated incremental costs, we consider both
the geographic distribution of historical formal consultations as well
as the geographic distribution of land area. The units with the most
historical formal consultations as well as the most acres of proposed
critical habitat--and therefore the highest probability of intersecting
with projects or activities with a Federal nexus that require
consultation--are most likely to result in the highest incremental
costs. Based on these criteria, Units 3 and 9 for the northern Mexican
gartersnake are likely to result in the highest costs, with 30 percent
and 15 percent of the 5.4 annual formal consultations occurring
respectively in these units (Industrial Economics 2019, p. 16). In Unit
3, this would result in a cost of approximately $15,500; of this, the
third-party cost is estimated to be less than 20 percent, or
approximately $3,100. In Unit 9, this would result in a cost of
approximately $7,700; of this, the third-party cost is estimated to be
less than 20 percent, or approximately $1,500.
For the narrow-headed gartersnake, Units 1 and 2 are likely to
result in the highest costs, with 6 percent and 11 percent of the 5.4
annual formal consultations occurring respectively in these units
(Industrial Economics 2019, p. 17). In Unit 1, this would result in a
cost of approximately $3,100; of this, the third-party cost is
estimated to be less than 20 percent, or approximately $600. In Unit 2,
this would result in a cost of approximately $5,700; of this, the
third-party cost is estimated to be less than 20 percent, or
approximately $1,100. Therefore, impacts that are concentrated in any
geographic area or sector would not be likely because of this critical
habitat designation.
As we stated earlier, we are soliciting data and comments from the
public on the draft economic analysis, as well as all aspects of this
revised proposed rule and our required determinations. We may revise
the proposed rule or supporting documents to incorporate or address
information we receive during the public comment period. In particular,
we may exclude an area from critical habitat if we determine that the
benefits of excluding the area outweigh the benefits of including the
area, provided the exclusion will not result in the extinction of this
species.
During the development of a final designation, we will consider any
additional economic impact information we receive through the public
comment period, and 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 Economic Impacts

The first sentence of section 4(b)(2) of the Act requires the
Service to consider the economic impacts (as well as the impacts on
national security and any other relevant impacts) of designating
critical habitat. In addition, economic impacts may, for some
particular areas, play an important role in the discretionary 4(b)(2)
exclusion analysis under the second sentence of section 4(b)(2). In
both contexts, the Service will consider the probable incremental
economic impacts of the designation. When the Service undertakes a
discretionary 4(b)(2) exclusion analysis with respect to a particular
area, we will weigh the economic benefits of exclusion (and any other
benefits of exclusion) against any benefits of inclusion (primarily the
conservation value of designating the area). The conservation value may
be influenced by the level of effort needed to manage degraded habitat
to the point where it could support the listed species. The Service
will use its discretion in determining how to weigh probable
incremental economic impacts against conservation value. The nature of
the probable incremental economic impacts and not necessarily a
particular threshold level triggers considerations of exclusions based
on probable incremental economic impacts. For example, if an economic
analysis indicates high probable incremental impacts of designating a
particular critical habitat unit of low conservation value (relative to
the remainder of the designation), the Services may consider exclusion
of that particular unit.

Considerations Based on National Security Impacts

Section 4(a)(3)(B)(i) of the Act may not cover all Department of
Defense (DoD) lands or areas that pose potential national-security
concerns (e.g., a DoD installation that is in the process of revising
its INRMP for a newly listed species or a species previously not
covered). If a particular area is not covered under section
4(a)(3)(B)(i), national-security or homeland-security concerns are not
a factor in the process of determining what areas meet the definition
of ``critical habitat.'' Nevertheless, when designating critical
habitat under section 4(b)(2), the Service must consider impacts on
national security, including homeland security, on lands or areas not
covered by section

[[Page 23637]]

4(a)(3)(B)(i). Accordingly, we will always consider for exclusion from
the designation areas for which DoD, Department of Homeland Security
(DHS), or another Federal agency has requested exclusion based on an
assertion of national-security or homeland-security concerns.
We cannot automatically exclude requested areas. When DoD, DHS, or
another Federal agency requests exclusion from critical habitat on the
basis of national-security or homeland-security impacts, it must
provide a reasonably specific justification of an incremental impact on
national security that would result from the designation of that
specific area as critical habitat. That justification could include
demonstration of probable impacts, such as impacts to ongoing border-
security patrols and surveillance activities, or a delay in training or
facility construction, as a result of compliance with section 7(a)(2)
of the Act. If the agency requesting the exclusion does not provide us
with a reasonably specific justification, we will contact the agency to
recommend that it provide a specific justification or clarification of
its concerns relative to the probable incremental impact that could
result from the designation. If the agency provides a reasonably
specific justification, we will defer to the expert judgment of DoD,
DHS, or another Federal agency as to: (1) Whether activities on its
lands or waters, or its activities on other lands or waters, have
national-security or homeland-security implications; (2) the importance
of those implications; and (3) the degree to which the cited
implications would be adversely affected in the absence of an
exclusion. In that circumstance, in conducting a discretionary 4(b)(2)
exclusion analysis, we will give great weight to national-security and
homeland-security concerns in analyzing the benefits of exclusion.
Congress has provided to the Secretary of Homeland Security a
number of authorities necessary to carry out the Department's border
security mission. One of those authorities is found at section 102 of
the Illegal Immigration Reform and Immigrant Responsibility Act of
1996, as amended (``IIRIRA''). In section 102(a) of IIRIRA, Congress
provided that the Secretary of Homeland Security shall take such
actions as may be necessary to install additional physical barriers and
roads (including the removal of obstacles to detection of illegal
entrants) in the vicinity of the United States border to deter illegal
crossings in areas of high illegal entry into the United States. In
section 102(b) of IIRIRA, Congress mandated the installation of
additional fencing, barriers, roads, lighting, cameras, and sensors on
the southwest border. Finally, in section 102(c) of IIRIRA, Congress
granted to the Secretary of Homeland Security the authority to waive
all legal requirements that he determines are necessary to ensure the
expeditious construction of barriers and roads authorized by section
102 of IIRIRA. On May 15, 2019, the Secretary of Homeland Security
issued waivers for legal requirements covering border barrier
activities directly in the vicinity of the garternsnakes' known range
and proposed critical habitat (84 FR 21798).

Exclusions Based on National Security Impacts

We received comments from the U.S. Army installation at Fort
Huachuca requesting that we exclude from the final designation of
critical habitat the San Pedro River and Babocomari River subunits
within the San Pedro River Subbasin Unit that fall within the San Pedro
Riparian National Conservation Area (SPRNCA) managed by the BLM, as
well as the lands owned by the Arizona State Land Department and
private landowners. This includes 92 percent of the San Pedro River
Subunit and all of the Babocomari River Subunit.
San Pedro River Subunit and Babocomari River Subunit
The area being requested for exclusion is part of the SPRNCA and is
managed by the BLM and comprised of Federal, State, and private lands.
The Army's rationale for the exclusion was that any additional
restrictions to ground-water pumping and water usage could affect their
ability to increase staffing when needed, or carry out missions
critical to national security. The Army also stated that designation of
lands within the SPRNCA would increase its regulatory burden and
disrupt its operations related to national security. The Army pointed
to its continued land stewardship actions and its commitment to
protecting natural resources on the base. We are considering this area
for exclusion based on impacts to national security.

Considerations of Other Relevant Impacts

When identifying the benefits of inclusion for an area, we consider
the additional regulatory benefits that area would receive due to the
protection from destruction of adverse modification as a result of
actions with a Federal nexus; the educational benefits of mapping
essential habitat for recovery of the listed species; and any benefits
that may result from a designation due to State or Federal laws that
may apply to critical habitat.
When considering the benefits of exclusion, we consider, among
other things, whether exclusion of a specific area is likely to result
in conservation, or in the continuation, strengthening, or
encouragement of partnerships.
In the case of northern Mexican and narrow-headed gartersnakes, the
benefits of critical habitat include public awareness of the presence
of northern Mexican and narrow-headed gartersnakes and the importance
of habitat protection, and, where a Federal nexus exists, increased
habitat protection for northern Mexican and narrow-headed gartersnakes
due to protection from destruction or adverse modification of critical
habitat. Additionally, continued implementation of an ongoing
management plan that provides equal to or more conservation than a
critical habitat designation would reduce the benefits of including
that specific area in the critical habitat designation.
We evaluate the existence of a conservation plan when considering
the benefits of inclusion. We consider a variety of factors, including,
but not limited to, whether the plan is finalized; how it provides for
the conservation of the essential physical or biological features;
whether there is a reasonable expectation that the conservation
management strategies and actions contained in a management plan will
be implemented into the future; whether the conservation strategies in
the plan are likely to be effective; and whether the plan contains a
monitoring program or adaptive management to ensure that the
conservation measures are effective and can be adapted in the future in
response to new information.
After identifying the benefits of inclusion and the benefits of
exclusion, we carefully weigh the two sides to evaluate whether the
benefits of exclusion outweigh those of inclusion. If our analysis
indicates that the benefits of exclusion outweigh the benefits of
inclusion, we then determine whether exclusion would result in
extinction of the species. If exclusion of an area from critical
habitat will result in extinction, we will not exclude it from the
designation.

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

[[Page 23638]]

whether there are permitted conservation plans covering the species 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.
Based on the information provided by entities seeking exclusion, as
well as any additional public comments we receive, we will evaluate
whether any lands in the proposed critical habitat areas are
appropriate for exclusion from the final designation under section
4(b)(2) of the Act. If the analysis indicates that the benefits of
excluding lands from the final designation outweigh the benefits of
designating those lands as critical habitat, then the Secretary may
exercise his discretion to exclude the lands from the final
designation.
Private or Other Non-Federal Conservation Plans or Agreements and
Partnerships, in General
We sometimes exclude specific areas from critical habitat
designations based in part on the existence of private or other non-
Federal conservation plans or agreements and their attendant
partnerships. A conservation plan or agreement describes actions that
are designed to provide for the conservation needs of a species and its
habitat, and may include actions to reduce or mitigate negative effects
on the species caused by activities on or adjacent to the area covered
by the plan. Conservation plans or agreements can be developed by
private entities with no Service involvement, or in partnership with
the Service.
We evaluate a variety of factors to determine how the benefits of
any exclusion and the benefits of inclusion are affected by the
existence of private or other non-Federal conservation plans or
agreements and their attendant partnerships when we undertake a
discretionary 4(b)(2) exclusion analysis. A non-exhaustive list of
factors that we will consider for non-permitted plans or agreements is
shown below. These factors are not required elements of plans or
agreements, and all items may not apply to every plan or agreement.
(i) The degree to which the plan or agreement provides for the
conservation of the species or the essential physical or biological
features (if present) for the species;
(ii) Whether there is a reasonable expectation that the
conservation management strategies and actions contained in a
management plan or agreement will be implemented;
(iii) The demonstrated implementation and success of the chosen
conservation measures;
(iv) The degree to which the record of the plan supports a
conclusion that a critical habitat designation would impair the
realization of benefits expected from the plan, agreement, or
partnership;
(v) The extent of public participation in the development of the
conservation plan;
(vi) The degree to which there has been agency review and required
determinations (e.g., State regulatory requirements), as necessary and
appropriate;
(vii) Whether National Environmental Policy Act (NEPA; 42 U.S.C.
4321 et seq.) compliance was required; and
(viii) Whether the plan or agreement contains a monitoring program
and adaptive management to ensure that the conservation measures are
effective and can be modified in the future in response to new
information.
We are considering exclusions related to the following non-
permitted (e.g., no safe harbor agreement or habitat conservation plan
under the Act) voluntary plans that afford some protections to one or
both gartersnakes species: The AGFD management plans for Bubbling Ponds
and Page Springs State Fish Hatcheries and for Planet Ranch
Conservation and Wildlife Area, and Freeport McMoRan Corporation
management plans for spikedace and loach minnow. We also recognize our
strong conservation partner in The Nature Conservancy, who manages
exclusively for native aquatic species on their properties but do not
have conservation management plans in place, per se.
AGFD Management Plans
The AGFD owns lands included in proposed critical habitat for
northern Mexican gartersnake within the Oak Creek Subunit (142 ac (57
ha)) in the Verde River Subbasin Unit, and within the Bill Williams
River Subunit (329 ac (133 ha)) in the Bill Williams River Subbasin
Unit. The AGFD has implemented management actions at its Bubbling Ponds
and Page Springs State Fish Hatcheries that benefit northern Mexican
gartersnakes, including research on home range and habitat use of the
species, maintaining fallow ponds as habitat for the species, and
creating new gartersnake ponds as funds become available (Jones 2019).
The AGFD also has an operational management plan for the Planet Ranch
Conservation and Wildlife Area that they acquired in 2015 (AGFD 2018,
entire). This property is along the Bill Williams River and within the
Bill Williams River subunit of proposed critical habitat for northern
Mexican gartersnake. The operational management plan includes habitat
improvements that will be implemented and funded by the Lower Colorado
River Multi-Species Conservation Program described above that could
benefit the northern Mexican gartersnake (AGFD 2018, pp. 12-18). In
addition, AGFD has a fully funded gartersnake biologist and has drafted
a ``Gartersnake Research and Management Strategy'' for Arizona (Cotten
et al. 2014, entire).
Freeport McMoRan Corporation (FMC) Management Plans
The FMC currently has a management plan that focuses on
conservation for listed spikedace and loach minnow on the middle
section of the upper Gila River that confers benefits to northern
Mexican and narrow-headed gartersnakes (FMC 2011, p. 7). Freeport
McMoRan owns 515 ac (208 ha) of proposed critical habitat for northern
Mexican gartersnake on the Gila River and Duck Creek in the Upper Gila
River Subbasin Unit, and 563 ac (228 ha) of proposed critical habitat
for narrow-headed gartersnakes on the Gila River in the Gila River
Subbasin Unit that are included in this management plan. Here, FMC
manages more than 7.2 mi (11.6 km) along this section of the Gila
River, much of which is owned by the Pacific Western Land Company
(PWLC), a subsidiary of FMC, and is included in the U-Bar Ranch. FMC's
land and water rights in the Gila/Cliff Valley support operations at
the Tyrone Mine in addition to its agricultural operations along the
Gila River. Under FMC's existing management system, the riparian zone
adjacent to the Gila River has expanded in width, benefitting the
endangered southwestern willow flycatcher and other riparian species
including the two gartersnakes. Surveys show that there are low levels
of nonnative fishes in the Gila/Cliff Valley segment of the Gila River
stream reach as well. Specific conservation measures in the Gila River
Subbasin Unit of critical habitat that confer protections to both
gartersnakes include a voluntary water conservation program in which
FMC has enrolled 1,450 cubic feet per second (cfs) (2,876 ac-ft) of its
annual average diversion rights through 2018, and maintenance of a
minimum of 25

[[Page 23639]]

cfs (18,099 ac-ft per year) flow levels in the Gila River during
periods of drought (FMC 2011, p. 10)
The Nature Conservancy
The Nature Conservancy owns three properties that include 597 ac
(242 ha) of proposed critical habitat for northern Mexican gartersnake
in Arizona. These properties include the Verde Valley Preserve with 16
ac (6 ha) of proposed critical habitat for northern Mexican gartersnake
in the Verde River subunit, Canelo Hills Cienega Preserve with 1.8 ac
(0.7 ha) of the O'Donnell Canyon Subunit, and the Patagonia-Sonoita
Creek Preserve with 123 ac (50 ha) of the Sonoita Creek Subunit. The
Nature Conservancy manages these properties for the benefit of aquatic
and riparian species, although not all of them have management plans.

Private or Other Non-Federal Conservation Plans Related to Permits
Under Section 10 of the Act

HCPs for incidental take permits under section 10(a)(1)(B) of the
Act provide for partnerships with non-Federal entities to minimize and
mitigate impacts to listed species and their habitat. In some cases,
HCP permittees agree to do more for the conservation of the species and
their habitats on private lands than designation of critical habitat
would provide alone. We place great value on the partnerships that are
developed during the preparation and implementation of HCPs.
Candidate conservation agreements with assurances (CCAAs) and safe
harbor agreements (SHAs) are voluntary agreements designed to conserve
candidate and listed species, respectively, on non-Federal lands. In
exchange for actions that contribute to the conservation of species on
non-Federal lands, participating property owners are covered by an
``enhancement of survival'' permit under section 10(a)(1)(A) of the
Act, which authorizes incidental take of the covered species that may
result from implementation of conservation actions, specific land uses,
and, in the case of SHAs, the option to return to a baseline condition
under the agreements. The Service also provides enrollees assurances
that we will not impose further land-, water-, or resource-use
restrictions, or require additional commitments of land, water, or
finances, beyond those agreed to in the agreements.
When we undertake a discretionary 4(b)(2) exclusion analysis, we
will always consider areas covered by an approved CCAA/SHA/HCP, and
generally exclude such areas from a designation of critical habitat if
three conditions are met:
1. The permittee is properly implementing the CCAA/SHA/HCP, and is
expected to continue to do so for the term of the agreement. A CCAA/
SHA/HCP is properly implemented if the permittee is, and has been,
fully implementing the commitments and provisions in the CCAA/SHA/HCP,
implementing agreement, and permit.
2. The species for which critical habitat is being designated is a
covered species in the CCAA/SHA/HCP, or very similar in its habitat
requirements to a covered species. The recognition that the Services
extend to such an agreement depends on the degree to which the
conservation measures undertaken in the CCAA/SHA/HCP would also protect
the habitat features of the similar species.
3. The CCAA/SHA/HCP specifically addresses the habitat of the
species for which critical habitat is being designated and meets the
conservation needs of the species in the planning area.
We are aware of the following plans related to permits under
section 10 of the Act that fulfill the above criteria, and are
considering the exclusion of non-Federal lands covered by these plans
that provide for the conservation of northern Mexican or narrow-headed
gartersnakes from the final designation: AGFD's SHA for topminnow and
desert pupfish in Arizona (AGFD and USFWS 2007), AGFD's SHA for
Chiricahua leopard frog in Arizona (AGFD and USFWS 2006), Lower
Colorado River Multi-Species HCP (Lower Colorado Multi-Species
Conservation Program 2018), Pima County Multi-Species HCP (Pima County
2016), Salt River Project (SRP) Roosevelt HCP (SRP 2002) and Horseshoe-
Bartlett HCP (SRP 2008), and San Rafael Ranch Low-effect HCP (Harlow
2015).
AGFD's SHA for Topminnow and Desert Pupfish in Arizona
Signed in 2007, the AGFD's SHA for topminnow and desert pupfish is
an umbrella document under which individual landowners in the entire
Arizona range of these native fish species on non-Federal and tribal
lands may participate. Topminnow and desert pupfish are prey species of
the northern Mexican gartersnake. Three private landowners within the
range of the northern Mexican gartersnake hold certificates of
inclusion in this SHA: San Rafael Cattle Company for the 18,365-acre
(7,482-ha) San Rafael Ranch in the San Rafael Valley, a private rancher
for a <1 acre (<2.5 ha) property in the San Rafael Valley, and National
Audubon Society for <1 acre (<2.5 ha) of the Appleton-Whittell Research
Ranch. The San Rafael Cattle Company maintains permanent water in 44
earthen stocktanks on the San Rafael Ranch that also serve as habitat
for native aquatic species. The private rancher maintains permanent
water in an earthen pond on his property that serves as habitat for
native aquatic species. Appleton-Whittell Research Ranch is managed for
the benefit of native species through a cooperative partnership among
the National Audubon Society, U.S. Forest Service (USFS), BLM, The
Nature Conservancy, Swift Current Land & Cattle Co., LLC, and the
Research Ranch Foundation.
There are 116 ac (47 ha) of private lands on the San Rafael Ranch
and 0.1 ac (<0.1 ha) of private lands on the second private ranch
included in proposed critical habitat for the northern Mexican
gartersnake within the Upper Santa Cruz River Subbasin Unit. There are
214 ac (87 ha) of private lands within Appleton-Whittell Research Ranch
that are proposed as critical habitat for northern Mexican gartersnake
within the Upper San Pedro River Subbasin Unit. Details of subunit
breakdown are in table 2a, above. San Rafael Cattle Company, the second
private rancher, and Audubon Research Ranch must maintain aquatic
habitats free of nonnative predators, including bullfrogs and warmwater
sportfish, in accordance with each certificate of inclusion. To date,
Gila topminnow have been released into two stock tanks on the San
Rafael Ranch, and desert pupfish have been released into a wildlife
pond on the Appleton-Whittell Research Ranch. All of these sites also
provide habitat for northern Mexican gartersnake.
AGFD's SHA for Chiricahua Leopard Frog in Arizona
Signed in 2006, the AGFD SHA for Chiricahua leopard frog is an
umbrella document under which individual landowners in the entire
Arizona range of this species on non-Federal and tribal lands may
participate. Chiricahua leopard frogs are a primary prey species of the
northern Mexican gartersnake. Four private landowners within the range
of the northern Mexican gartersnake hold certificates of inclusion in
this SHA: San Rafael Cattle Company, The Nature Conservancy, National
Audubon Society, and an additional private ranch. Under each
certificate of inclusion in the SHA, the four landowners must maintain
aquatic habitats free of nonnative predators, including bullfrogs and
warmwater sportfish. The San Rafael Cattle

[[Page 23640]]

Company holds a certificate of inclusion for two pastures on 2,673 ac
of the San Rafael Ranch in the San Rafael Valley. There are 5 ac (2 ha)
within one of these pastures included in the unnamed drainage and
Pasture 9 Tank subunit of proposed critical habitat for northern
Mexican gartersnake in the Upper Santa Cruz River Subunit. This area is
also covered by the San Rafael Ranch HCP, which is described below. To
date, Chiricahua leopard frogs have been released into one stock tank
on the San Rafael Ranch that also provides habitat for northern Mexican
gartersnakes. This is in addition to the stock tank where Gila
topminnows have been released on the ranch.
National Audubon Society holds a certificate of inclusion for 1,409
ac on the Appleton-Whittell Research Ranch. There are 191 ac (77 ha) on
this property included in O'Donnell Canyon, Post Canyon, and Unnamed
drainage & Finley Tank subunits of proposed critical habitat for
northern Mexican gartersnake. To date, Chiricahua leopard frogs have
been released into two locations on this property that also provide
habitat for northern Mexican gartersnakes.
Another private rancher a holds a certificate of inclusion for 79
ac (32 ha) on lands adjacent to the Appleton-Whittell Research Ranch.
There are 15 ac (6 ha) within this ranch included in the Post Canyon
Subunit of proposed critical habitat for the northern Mexican
gartersnake.
The Nature Conservancy holds a certificate of inclusion for its
Ramsey Canyon Preserve in Ramsey Canyon, which is adjacent to proposed
critical habitat for the gartersnake in the House Pond Subunit. Both
Ramsey Canyon Preserve and House Pond are occupied by a Chiricahua
leopard frog metapopulation that is likely prey for the northern
Mexican gartersnake in this area. Although the gartersnake has yet to
be detected in Ramsey Canyon, it is currently extant in House Pond
Subunit in Brown Canyon, the canyon immediately north of Ramsey Canyon.
Lower Colorado River Multi-Species HCP
The Lower Colorado River Multi-species Conservation Program (LCR
MSCP) is a joint effort by 6 Federal agencies, 3 States, 6 Tribes, 36
cities, and water and power authorities with management authority for
storage, delivery, and diversion of water; hydropower generation,
marketing, and delivery; and land management or Native American Trust
responsibilities along 400 mi (644 km) of the Lower Colorado River. In
2005, the Service issued a 50-year incidental take permit to the Bureau
of Reclamation to address take of 6 species listed under the Act and 21
other species from water delivery and power generation along the Lower
Colorado River. At this time, the northern Mexican gartersnake was
considered extirpated from the lower Colorado River and is not included
in the LCR MSCP. In 2018, the Bureau of Reclamation amended the LCR
MSCP to address effects to the northern Mexican gartersnake, which was
subsequently found in 2015 at Beal Lake on Havasu National Wildlife
Refuge (NWR), which is included in the permit area. The LCR MSCP
includes conservation measures to avoid and minimize direct effects of
implementing covered activities and the LCR MSCP on the northern
Mexican gartersnake, and the potential effects of habitat loss expected
to be minimized with the creation of 1,496 ac (605 ha) of replacement
habitat. Lands within the Lower Colorado River Unit are covered by the
LCR MSCP, but are all Federal lands and are not proposed for exclusion
from critical habitat designation. However, conservation measures also
include funding for habitat improvements on Planet Ranch within the
Bill Williams River Subunit that could benefit the northern Mexican
gartersnake.
Pima County Sonoran Desert Conservation Plan and Multi-Species HCP
Through its Sonoran Desert Conservation Plan (SDCP), Pima County,
Arizona, has been implementing measures that benefit the northern
Mexican gartersnake since 2001. In 2016, the Service issued a 30-year
incidental take permit for the Pima County Multi-Species Habitat
Conservation Plan (MSHCP) to address incidental take from residential
and non-residential development, renewable energy projects, relocation
of utilities, ranch-management activities, recreation, and conservation
and mitigation activities. The MSHCP is part of the SDCP and addresses
44 species, including the northern Mexican gartersnake. Under the SDCP
and MSCP, Pima County manages lands that fall within proposed critical
habitat for the northern Mexican gartersnake. There are 12 mi (19 km)
of Cienega Creek within 543 ac (220 ha) of proposed critical habitat
for northern Mexican gartersnake within the Cienega Creek Subunit of
the Cienega Creek Subbasin Unit. The 3,797-acre Cienega Creek Natural
Preserve is owned by the Pima County Flood Control District and is
protected as a ``unique riparian ecosystem'' by a declaration of
restrictions, covenants, and conditions by the Pima County Board of
Supervisors in 1987 (Pima County Flood Control District 1987, p. 1).
Management objectives of this preserve include preservation and
protection of the perennial stream flow and existing riparian
vegetation of Cienega Creek and its associated floodplain (Pima County
Department of Transportation and Flood Control District 1994, p. 2-1).
Protections to northern Mexican gartersnakes on this property exists
through chapter 30 of title 16 of the Pima County Floodplain Management
Ordinance (Pima County Code Ordinance Number 2010-FC5). Chapter 30 of
the Floodplain Management Ordnance effectively minimizes habitat loss
for northern Mexican gartersnake by protecting riparian habitat from
development and requiring mitigation for disturbances to riparian
habitat that exceed one-third of an acre. Pima County requested that
lands within the Cienega Creek Natural Preserve remain in critical
habitat for the northern Mexican gartersnake.
Salt River Project Roosevelt and Horseshoe-Bartlett HCPs
In 2003, the Service issued an incidental take permit for the SRP
Roosevelt HCP (SRP 2002) to address incidental take from operation of
Roosevelt Dam and Lake for four riparian bird species, including
southwestern willow flycatcher, bald eagle, Yuma clapper rail, and
western yellow-billed cuckoo. As part of its mitigation measures for
these bird species under the Roosevelt HCP, SRP has acquired and will
manage in perpetuity 471 ac (191 ha) of riparian and adjacent upland
habitat offsite along the Gila and Verde Rivers, some of which may also
confer benefits to the two gartersnakes (SRP 2002, p. 143; SRP 2013, p.
17).
Subsequently in 2008, the Service issued another incidental take
permit to SRP for the SRP Horseshoe-Bartlett HCP to address incidental
take from the operation of Horseshoe and Bartlett reservoirs of listed
species as well as both gartersnakes, which were not listed at the time
of permit issuance. Mitigation measures in the Verde River watershed
included in the Horseshoe-Bartlett HCP designed to benefit the two
gartersnakes include reducing nonnative fish reproduction, recruitment,
and movement at Horseshoe Reservoir; increasing native fish
populations, distribution, and relative abundance in the Verde River;
and working to maintain water flows in the Verde River above Horseshoe
Reservoir through watershed management activities (SRP

[[Page 23641]]

2008, pp. 193-196). Mitigation also included acquisition and management
in perpetuity of 50 ac (20 ha) of riparian habitat along the Verde
River and 150 ac (61 ha) of riparian habitat offsite along the Gila
River, some of which may benefit the two gartersnakes (SRP 2008, pp.
179-184). Private lands, as well as acquisitions or conservation
easements made to date for both of SRP's HCPs that fall within proposed
critical habitat for northern Mexican gartersnake, include 515 ac (208
ha) of private lands in the Gila River and Duck Creek subunits, and 96
ac (39 ha) of private lands in the Verde River Subunit (SRP 2014, pp.
27-30; SRP 2014a, p. 11). SRP-owned lands that fall within proposed
critical habitat for narrow-headed gartersnake include 563 ac (228 ha)
of the Gila River Subunit. Management actions on the Camp Verde
Riparian Preserve property on the Verde River that may benefit the two
gartersnakes include acquiring water rights; creating conservation
easements; maintaining fencing around riparian areas, including log-
jams that allow normal hydrologic processes to continue unimpeded while
excluding livestock; planting native species above riparian areas to
improve watershed conditions; and monitoring groundwater and stream
flow levels.
San Rafael Ranch Low-Effect HCP
In 2016, the Service issued a 30-year incidental take permit for
the San Rafael Ranch low-effect HCP (Harlow 2015) to address incidental
take from cattle ranching operations of Sonoran tiger salamander,
northern Mexican gartersnake, Gila chub, and Huachuca springsnail.
Measures to minimize take emphasize the use of riparian pastures and
dispersed grazing, maintaining existing and developing new livestock
ponds that also serve as habitat for covered species including the
northern Mexican gartersnake, and undertaking recovery actions for
listed species in cooperation with the Service and AGFD. The incidental
take permit boundary includes the 18,500-acre San Rafael Ranch.
Portions of the Santa Cruz River, Unnamed drainage and Pasture 9 Tank,
and Unnamed drainage and Sheehy Spring subunits (116 ac (47 ha)) of
proposed critical habitat for northern Mexican gartersnake fall within
the incidental take permit boundary. Implementation of winter grazing
only in riparian pastures along the Santa Cruz River and managed
grazing of upland pastures would maintain habitat for northern Mexican
gartersnakes. Maintaining fencing and managing trespass cattle limits
grazing of riparian pastures to the non-growing season and lessens
impacts to proposed critical habitat. Maintenance of stock tanks will
also help address nonnative predator populations in proposed critical
habitat.

Tribal Lands

Several Executive Orders, Secretarial Orders, and policies relate
to working with Tribes. These guidance documents generally confirm our
trust responsibilities to Tribes, recognize that Tribes have sovereign
authority to control tribal lands, emphasize the importance of
developing partnerships with tribal governments, and direct the Service
to consult with Tribes on a government-to-government basis.
A joint Secretarial Order that applies to both the Service and the
National Marine Fisheries Service (NMFS), Secretarial Order 3206,
American Indian Tribal Rights, Federal-Tribal Trust Responsibilities,
and the Endangered Species Act (June 5, 1997) (S.O. 3206), is the most
comprehensive of the various guidance documents related to tribal
relationships and Act implementation, and it provides the most detail
directly relevant to the designation of critical habitat. In addition
to the general direction discussed above, S.O. 3206 explicitly
recognizes the right of Tribes to participate fully in the listing
process, including designation of critical habitat. The Order also
states, ``Critical habitat shall not be designated in such areas unless
it is determined essential to conserve a listed species. In designating
critical habitat, the Services shall evaluate and document the extent
to which the conservation needs of the listed species can be achieved
by limiting the designation to other lands.'' In light of this
instruction, when we undertake a discretionary 4(b)(2) exclusion
analysis, we will always consider exclusions of tribal lands under
section 4(b)(2) of the Act prior to finalizing a designation of
critical habitat, and will give great weight to tribal concerns in
analyzing the benefits of exclusion.
However, S.O. 3206 does not preclude us from designating tribal
lands or waters as critical habitat, nor does it state that tribal
lands or waters cannot meet the Act's definition of ``critical
habitat.'' We are directed by the Act to identify areas that meet the
definition of ``critical habitat'' (i.e., areas occupied at the time of
listing that contain the essential physical or biological features that
may require special management or protection and unoccupied areas that
are essential to the conservation of a species), without regard to
landownership. While S.O. 3206 provides important direction, it
expressly states that it does not modify the Secretaries' statutory
authority.
Fort Apache Native Fish Management Plan
The White Mountain Apache Tribe's Fort Apache Indian Reservation
(Fort Apache) encompasses approximately 1,680,000 ac (679,872 ha) in
east-central Arizona. Fort Apache includes 6 percent of the Black River
Subbasin Unit (92 ac (37 ha)) and 33 percent of Canyon Creek Unit (77
ac (31 ha)) of proposed critical habitat for narrow-headed gartersnake.
The Salt River and Black River serve as the boundary between Fort
Apache and the San Carlos Apache Reservations. In May 2014, the White
Mountain Apache Tribe and the Service drafted a native fish's
management plan for Fort Apache that includes the federally endangered
loach minnow, federally threatened Apache trout, and four other native
fish species currently extant on Fort Apache (White Mountain Apache
Tribe and Service 2014, p. 2). This plan supersedes their 2000 Loach
Minnow Management Plan (White Mountain Apache Tribe 2000, entire). The
draft 2014 management plan identifies several Tribal regulation and
management efforts they think are beneficial to loach minnow and would
also confer benefits to the gartersnakes, including Resolution 89-149,
which designates streams and riparian zones as Sensitive Fish and
Wildlife areas, requiring that authorized programs ensure these zones
remain productive for fish and wildlife. The White Mountain Apache
Tribe additionally adopted a Water Quality Protection Ordinance in 1999
to ``promote the health of Tribal waters and the people, plants and
wildlife that depend on them through holistic management and
sustainable use.'' The draft 2014 management plan also includes an
objective to identify Native Fish Management Units within each of the
watersheds on Fort Apache and develop initial management
recommendations for each Native Fish Management Unit, considering
native fish and aquatic and riparian obligates, including, but not
limited to, species such as leopard frogs and gartersnakes (White
Mountain Apache Tribe and AFWCO 2014, p. 21).
San Carlos Apache Tribe Fishery Management Plan
The San Carlos Apache Reservation encompasses approximately
1,850,000 ac (748,668 ha) in east-central Arizona. This reservation
includes 6 percent (102 ac (41 ha)) of the Black River Subbasin Unit
and 70 percent (236 ac (96 ha)) of the Eagle Creek Unit of proposed
critical habitat for narrow-headed gartersnake.

[[Page 23642]]

The Salt River and Black River serve as the boundary between the San
Carlos Apache Reservation and Fort Apache. The San Carlos Apache Tribe
Fishery Management Plan (FMP; San Carlos Apache Tribe 2005, entire) was
adopted in 2005, via Tribal Resolution SEP-05-178. This management plan
addresses both sportfish and native fish management on the San Carlos
Apache Reservation. Although sportfish have not been intentionally
stocked in streams on the reservation since 1975, sportfish continue to
be stocked in lentic waters including lakes, ponds, and stocktanks
throughout the San Carlos Apache Reservation. The FMP has several goals
relevant to native fish management, which may confer benefits to the
gartersnakes by supporting conservation of their prey species. These
goals include development and implementation of integrated, watershed-
based approaches to fishery resource management; conserving, enhancing,
and maintaining existing native fish populations and their habitats as
part of the natural diversity of the San Carlos Apache Reservation, and
preventing, minimizing, or mitigating adverse impacts to all native
fishes, especially threatened or endangered species, and their habitats
when consistent with the Reservation as a permanent home and abiding
place for San Carlos Apache Tribal members; restoring extirpated native
fishes and degraded natural habitats when appropriate and economically
feasible; increasing Tribal awareness of native fish conservation and
values; and aggressively pursuing funding adequate to support all
Tribal conservation and management activities for all native fishes and
their habitats (San Carlos Apache Tribe 2005, pp. 63-71).
Yavapai-Apache Nation Tribal Resolution 46-2006
The Yavapai-Apache Nation includes 207 ac (84 ha) of proposed
critical habitat for northern Mexican gartersnake in the Verde River
Subunit. Yavapai-Apache Nation approved Tribal Resolution 46-2006,
``confirming and declaring a riparian conservation corridor and
management plan for the Verde River'' that affords protections to both
gartersnakes. This resolution requires the Yavapai-Apache Nation to
``preserve the physical and biological features found within the
riparian corridor of the Verde River essential to native wildlife
species, including species listed as endangered or threatened by the
federal government under the Endangered Species Act'' (Yavapai-Apache
Nation 2006, p. 1). The riparian corridor is defined as a 300-ft (91-m)
buffer from centerline of the Verde River on their lands (Yavapai-
Apache Nation 2006, p. 1). Within this corridor, the Yavapai-Apache
resolves to coordinate with the Service on actions that may adversely
impact habitat essential to the conservation and/or recovery of
federally listed species (Yavapai-Apache Nation 2006, p. 2). In
addition, stocking of nonnative fishes is specifically prohibited by
the resolution (Yavapai-Apache Nation 2006, p. 2).
We scheduled a meeting with these tribes and other interested
tribes prior to publication of this revised proposed rule to give them
as much time as possible to comment.

Summary of Exclusion We Are Considering

Based on the information provided by entities seeking exclusion, as
well as any additional public comments we receive, we will evaluate
whether certain lands in the proposed critical habitat are appropriate
for exclusion from the final designation under section 4(b)(2) of the
Act. If the analysis indicates that the benefits of excluding lands
from the final designation outweigh the benefits of designating those
lands as critical habitat, then the Secretary may exercise his
discretion to exclude the lands from the final designation. The areas
described above that we are considering excluding under section 4(b)(2)
of the Act from the final critical habitat designation 7,405 ac (2,997
ha) for northern Mexican gartersnake and 1,072 ac (434 ha) for narrow-
headed gartersnake, which represents 27 percent and 6 percent of the
proposed designation for each gartersnake species, respectively. Tables
3a and 3b, below, provide approximate areas (ac, ha) of lands that meet
the definition of critical habitat for each gartersnake species but are
under our consideration for possible exclusion under section 4(b)(2) of
the Act from the final critical habitat rule. Additionally, we will
consider excluding any other areas where we determine that the benefits
of exclusion outweigh the benefits of inclusion based upon the
information we have when we finalize a critical habitat designation.

Table 3a--Areas Identified for Possible Exclusion for the Northern Mexican Gartersnake by Critical Habitat Unit
and Subunit
----------------------------------------------------------------------------------------------------------------
Portion of
Unit subunit Landowner, property Ownership type Area in acres unit or
name (hectares) subunit
----------------------------------------------------------------------------------------------------------------
Upper Gila River Subbasin Unit
----------------------------------------------------------------------------------------------------------------
Gila River........................ Freeport McMoRan Private.............. 500 (202) 48%
(Freeport McMoRan
Corporation
management plans).
Duck Creek........................ Freeport McMoRan Private.............. 15 (6) 14%
(Freeport McMoRan
Corporation
management plans).
----------------------------------------------------------------------------------------------------------------
Unit total being considered for ..................... ..................... 515 (208) 45%
exclusion.
----------------------------------------------------------------------------------------------------------------
Verde River Subbasin Unit
----------------------------------------------------------------------------------------------------------------
Verde River....................... The Nature Private.............. 16 (6) 0.4%
Conservancy, Verde
Valley Preserve and
Verde Valley
property.
Salt River Project, Private.............. 96 (39) 2%
Camp Verde Riparian
Preserve (Roosevelt
and Horseshoe-
Bartlett HCPs).
Yavapai-Apache Nation Tribal............... 207 (84) 5%
Oak Creek......................... Arizona Game and Fish State................ 142 (57) 14%
Department, Bubbling
Ponds Hatchery and
Page Springs
Hatchery (State
Wildlife Action
Plan).
----------------------------------------------------------------------------------------------------------------

[[Page 23643]]

Unit total being considered for ..................... ..................... 460 (186) 9%
exclusion.
----------------------------------------------------------------------------------------------------------------
Bill Williams River Subbasin Unit
----------------------------------------------------------------------------------------------------------------
Bill Williams River............... Arizona Game and Fish State................ 329 (133) 18%
Department, Planet
Ranch Conservation
and Wildlife Area
(State Wildlife
Action Plan).
----------------------------------------------------------------------------------------------------------------
Unit total being considered for ..................... ..................... 329 (133) 8%
exclusion.
----------------------------------------------------------------------------------------------------------------
Cienega Creek Subbasin Unit
----------------------------------------------------------------------------------------------------------------
Cienega Creek..................... Pima County, Cienega Private.............. 543 (220) 34%
Creek Natural
Preserve (Pima
County MSCP).
----------------------------------------------------------------------------------------------------------------
Unit total being considered for ..................... ..................... 543 (220) 27%
exclusion.
----------------------------------------------------------------------------------------------------------------
Upper Santa Cruz River Subbasin Unit
----------------------------------------------------------------------------------------------------------------
Sonoita Creek..................... The Nature Private.............. 123 (50) 55%
Conservancy,
Patagonia-Sonoita
Creek Preserve.
Santa Cruz River.................. San Rafael Cattle Private.............. 91 (37) 57%
Company, San Rafael
Ranch (San Rafael
Ranch Low-effect
HCP).
Unnamed Drainage and Pasture 9 San Rafael Cattle Private.............. 5 (2) 12%
Tank. Company, San Rafael
Ranch (AGFD's SHA,
San Rafael Ranch Low
Effect HCP).
Unnamed Drainage and Sheehy Spring San Rafael Cattle Private.............. 20 (8) 80%
Company, San Rafael
Ranch (AGFD's SHA,
San Rafael Ranch Low
Effect HCP).
Unnamed Wildlife Pond............. Private Ranch (AGFD's Private.............. 0.07 (0.03) 100%
SHA).
Unit total being considered for ..................... ..................... 238 (96) 48%
exclusion.
----------------------------------------------------------------------------------------------------------------
Upper San Pedro River Subbasin Unit
----------------------------------------------------------------------------------------------------------------
San Pedro River (Fort Huachuca Bureau of Land Federal.............. 4,496 (1,820) 88%
requested exclusion). Management, San
Pedro Riparian
National
Conservation Area
(national security).
Private (national Private.............. 215 (87) 4%
security).
Babocomari River (Fort Huachuca Bureau of Land Federal.............. 195 (79) 49%
requested exclusion). Management, San
Pedro Riparian
National
Conservation Area
(national security).
Arizona State Land State................ 8 (3) 2%
Department (national
security).
Private (national Private.............. 199 (81) 49%
security).
O'Donnell Canyon.................. National Audubon Private.............. 173 (70) 72%
Society, Appleton-
Whittell Research
Ranch (AGFD's SHA).
The Nature Private.............. 1.8 (0.7) 0.8
Conservancy, Canelo
Hills Preserve.
Post Canyon....................... National Audubon Private.............. 15 (6) 19%
Society, Appleton-
Whittell Research
Ranch (AGFD's SHA).
Private Ranch (AGFD's Private.............. 15 (6) 19%
SHA).
Unnamed Drainage and Finley Tank.. National Audubon Private.............. 3 (1) 100%
Society, Appleton-
Whittell Research
Ranch (AGFD's SHA).
Unit total being considered for ..................... ..................... 5,320 (2,152) 91%
exclusion.
-------------------------------
Grand Total................... ..................... ..................... 7,405 (2,997) 27%
----------------------------------------------------------------------------------------------------------------

[[Page 23644]]

Table 3b--Areas Considered for Exclusion for the Narrow-Headed Gartersnake by Critical Habitat Unit and Subunit
----------------------------------------------------------------------------------------------------------------
Portion of
Unit subunit Landowner, property Ownership type Area in acres unit or
name (hectares) subunit
----------------------------------------------------------------------------------------------------------------
Upper Gila River Subbasin Unit
----------------------------------------------------------------------------------------------------------------
Gila River........................ Freeport McMoRan Private.............. 563 (228) 10%
(Freeport McMoRan
Corporation
management plans).
----------------------------------------------------------------------------------------------------------------
Unit total being considered for ..................... ..................... 563 (228) 10%
exclusion.
----------------------------------------------------------------------------------------------------------------
Eagle Creek Unit
----------------------------------------------------------------------------------------------------------------
Eagle Creek....................... San Carlos Apache Tribal............... 236 (96) 70%
Tribe.
----------------------------------------------------------------------------------------------------------------
Unit total being considered for ..................... ..................... 236 (96) 70%
exclusion.
----------------------------------------------------------------------------------------------------------------
Black River Subbasin Unit
----------------------------------------------------------------------------------------------------------------
Black River....................... *San Carlos Apache Tribal............... 55 (22) 7%
Tribe.
----------------------------------------------------------------------------------------------------------------
White Mountain Apache Tribal............... 56 (23) 7%
Tribe.
Bear Wallow Creek................. San Carlos Apache Tribal............... 48 (19) 27%
Tribe.
White Mountain Apache Tribal............... <.01 (<.01) <.01%
Tribe.
Reservation Creek................. White Mountain Apache Tribal............... 36 (15) 27%
Tribe.
----------------------------------------------------------------------------------------------------------------
Unit total being considered for ..................... ..................... 195 (79) 12%
exclusion.
----------------------------------------------------------------------------------------------------------------
Canyon Creek Unit
----------------------------------------------------------------------------------------------------------------
Canyon Creek...................... White Mountain Apache Tribal............... 77 (31) 33%
Tribe.
----------------------------------------------------------------------------------------------------------------
Unit total being considered for ..................... ..................... 77 (31) 33%
exclusion.
-------------------------------
Grand Total................... ..................... ..................... 1,072 (434) 6%
----------------------------------------------------------------------------------------------------------------

We specifically request comments on the inclusion or exclusion of
such areas in our final designation of critical habitat for the
northern Mexican gartersnake and narrow-headed gartersnake (see Public
Comments under Request for Information, above).

Required Determinations

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.

Regulatory Planning and Review (Executive Orders 12866 and 13563)

Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) in the Office of Management and Budget will
review all significant rules. OIRA has determined that this rule is not
significant.
Executive Order (E.O.) 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 proposed rule in a
manner consistent with these requirements.

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

Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.),
as amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to
publish a notice of rulemaking for any proposed or final rule, it must
prepare and make available for public comment a regulatory flexibility
analysis that describes the effects of the rule on small entities
(i.e., small businesses, small organizations, and small government
jurisdictions). However, no regulatory flexibility analysis is required
if the head of the agency certifies the rule will not have a
significant economic impact

[[Page 23645]]

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.
Under the RFA, as amended, and as understood in the light of recent
court decisions, Federal agencies are required to evaluate the
potential incremental impacts of rulemaking only 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 if we adopt this revised proposed critical habitat
designation. There is no requirement under the 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 made final as proposed, the revised proposed critical habitat
designation will not have a significant economic impact on a
substantial number of small entities.
In summary, we have considered whether this revised 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 made final, the
revised proposed critical habitat designation will not have a
significant economic impact on a substantial number of small business
entities. Therefore, an initial regulatory flexibility analysis is not
required.

Executive Order 13771--Reducing Regulation and Controlling Regulatory
Costs

This proposed rule is not an Executive Order (E.O.) 13771
(``Reducing Regulation and Controlling Regulatory Costs'') (82 FR 9339,
February 3, 2017) regulatory action because this rule is not
significant under E.O. 12866.

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
proposed critical habitat designation would significantly affect energy
supplies, distribution, or use. Therefore, this action is not a
significant energy action, and no Statement of Energy Effects is
required.

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

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following finding:
(1) This proposed 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. 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 think that this rule would significantly or uniquely
affect small governments. The lands being proposed for critical habitat
designation are owned by Pima County, private landowners, Tribes, the
States of New Mexico and Arizona, and the Federal Government (U.S.
Forest Service, National Park Service, Bureau of Land Management, and
U.S. Fish and

[[Page 23646]]

Wildlife Service). In addition, based in part on an analysis conducted
for the previous proposed designation of critical habitat and
extrapolated to this designation, we do not expect this rule to
significantly or uniquely affect small governments. Small governments
will be affected only to the extent that any programs or actions
requiring or using Federal funds, permits, or other authorized
activities must ensure that their actions will not adversely affect the
critical habitat. Further, we do not believe that this rule would
significantly or uniquely affect small governments because it will not
produce a Federal mandate of $100 million or greater in any year, that
is, it is not a ``significant regulatory action'' under the Unfunded
Mandates Reform Act. The designation of critical habitat imposes no
obligations on State or local governments and, as such, a Small
Government Agency Plan is not required. 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 northern Mexican gartersnake and narrow-headed gartersnake
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 for the proposed
designation of critical habitat for northern Mexican gartersnake and
narrow-headed gartersnake, and it concludes that, if adopted, this
designation of critical habitat 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. From a federalism
perspective, the designation of critical habitat directly affects only
the responsibilities of Federal agencies. The Act imposes no other
duties with respect to critical habitat, either for States and local
governments, or for anyone else. As a result, the proposed rule does
not have substantial direct effects either on the States, or on the
relationship between the national government and the States, or on the
distribution of powers and responsibilities among the various levels of
government. The proposed designation may have some benefit to these
governments because the areas that contain the features essential to
the conservation of the species are more clearly defined, and the
physical or biological features of the habitat necessary for the
conservation of the species are specifically identified. This
information does not alter where and what federally sponsored
activities may occur. However, it may assist State and local
governments in long-range planning because they 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) of the Act 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 would not
unduly burden the judicial system and that it meets the requirements of
sections 3(a) and 3(b)(2) of the Order. We have proposed designating
critical habitat in accordance with the provisions of the Act. To
assist the public in understanding the habitat needs of the species,
this proposed rule identifies the elements of physical or biological
features essential to the conservation of the species. The proposed
designated areas of critical habitat are presented on maps, 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 information collection requirements, and
a submission to the Office of Management and Budget (OMB) under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) is not
required. We may not conduct or sponsor and you are not required to
respond to a collection of information unless it displays a currently
valid OMB control number.

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

It is our position that, outside the jurisdiction of the U.S. Court
of Appeals for the Tenth Circuit, we do not need to prepare
environmental analyses pursuant to the National Environmental Policy
Act (NEPA; 42 U.S.C. 4321 et seq.) in connection with designating
critical habitat under the Act. We published a notice outlining our
reasons for this determination in the Federal Register on October 25,
1983 (48 FR 49244). This position was upheld by the U.S. Court of
Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495
(9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)). However, when the
range of the species includes States within the Tenth Circuit, such as
that of northern Mexican and narrow-headed gartersnakes, under the
Tenth Circuit ruling in Catron County Board of Commissioners v. U.S.
Fish and Wildlife Service, 75 F.3d 1429 (10th Cir. 1996), we undertake
a NEPA analysis for critical habitat designation. We invite the public
to comment on the extent to which this proposed critical habitat
designation may have a significant impact on the human environment, or
fall within one of the categorical exclusions for actions that have no
individual or cumulative effect on the quality of the human
environment.

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

[[Page 23647]]

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 federally recognized 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 tribal lands in Arizona included in this proposed designation
of critical habitat are the lands of the White Mountain Apache Tribe,
San Carlos Apache Tribe, and Yavapai Apache Nation. We used the
criteria described above under Criteria Used To Identify Critical
Habitat to identify tribal lands that are occupied by the northern
Mexican and narrow-headed gartersnakes that contain the features
essential for the conservation of these species. We began government-
to-government consultation with these tribes on November 29, 2011, in a
pre-notification letter informing the tribes that we had begun an
evaluation of the northern Mexican and narrow-headed gartersnakes for
listing purposes under the Act. We will consider these areas for
exclusion from the final critical habitat designation to the extent
consistent with the requirements of section 4(b)(2) of the Act. We sent
notification letters on March 12, 2013, to each tribe that described
the exclusion process under section 4(b)(2) of the Act and invited them
to meet to discuss the listing process and engage in conversation with
us about the proposal to the extent possible without disclosing pre-
decisional information. During an April 2, 2019, coordination meeting
with these tribes, we informed them that we were revising the proposed
critical habitat designation for the two gartersnakes and would have
meetings with them as early as legally possible regarding the
revisions. We plan to meet with these tribes and any other interested
tribes in early April 2020 so that we can provide ample time to
comment. We will continue to work with tribal entities during the
development of a final rule for the designation of critical habitat for
the northern Mexican and narrow-headed gartersnakes

References Cited

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

Authors

The primary authors of this proposed rulemaking 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 entries for ``Gartersnake,
narrow-headed'' and ``Gartersnake, northern Mexican'' under REPTILES in
the List of Endangered and Threatened Wildlife to read as follows:

Sec. 17.11 Endangered and threatened wildlife.

* * * * *
(h) * * *

----------------------------------------------------------------------------------------------------------------
Listing citations
Common name Scientific name Where listed Status and applicable
rules
----------------------------------------------------------------------------------------------------------------

* * * * * * *
Reptiles

* * * * * * *
Gartersnake, narrow-headed....... Thamnophis Wherever found...... T 79 FR 38677, 7/8/
rufipunctatus. 2014; 50 CFR
17.95(c).\CH\
Gartersnake, northern Mexican.... Thamnophis eques Wherever found...... T 79 FR 38677, 7/8/
megalops. 2014; 50 CFR
17.42(g);\4d\ 50
CFR 17.95(c).\CH\

* * * * * * *
----------------------------------------------------------------------------------------------------------------

0
3. In Sec. 17.95, amend paragraph (c) by adding, in the same
alphabetical order that the species appear in the table at Sec.
17.11(h), entries for ``Narrow-headed Gartersnake (Thamnophis
rufipunctatus)'' and ``Northern Mexican Gartersnake (Thamnophis eques
megalops)'' to read as follows:

Sec. 17.95 Critical habitat--fish and wildlife.

* * * * *
(c) Reptiles.
* * * * *
Narrow-Headed Gartersnake (Thamnophis rufipunctatus)
(1) Critical habitat units are depicted for Apache, Coconino, Gila,
Graham, Greelee, and Yavapai Counties in Arizona, and Catron, Grant,
and Hidalgo Counties in New Mexico, on the maps in this entry.
(2) Within these areas, the physical or biological features
essential to the conservation of narrow-headed gartersnake consist of
the following components:
(i) Perennial streams or spatially intermittent streams that
provide both aquatic and terrestrial habitat that allows for
immigration, emigration, and maintenance of population connectivity of
narrow-headed gartersnakes and contain:
(A) Pools, riffles, and cobble and boulder substrate, with low
amount of fine sediment and substrate embeddedness;
(B) Organic and natural inorganic structural features (e.g., cobble
bars, rock piles, large boulders, logs or

[[Page 23648]]

stumps, aquatic and wetland vegetation, logs, and debris jams) in the
stream channel for basking, thermoregulation, shelter, prey base
maintenance, and protection from predators;
(C) Water quality that is absent of pollutants or, if pollutants
are present, at levels low enough such that recruitment of narrow-
headed gartersnakes is not inhibited; and
(D) Terrestrial habitat within 89 feet (27 meters) of the active
stream channel that includes boulder fields, rocks, and rock structures
containing cracks and crevices, small mammal burrows, downed woody
debris, and vegetation for thermoregulation, shelter sites, and
protection from predators.
(ii) Hydrologic processes that maintain aquatic and riparian
habitat through:
(A) A natural flow regime that allows for periodic flooding, or if
flows are modified or regulated, a flow regime that allows for the
movement of water, sediment, nutrients, and debris through the stream
network, as well as maintenance of native fish populations; and
(B) Physical hydrologic and geomorphic connection between the
active stream channel and its adjacent terrestrial areas.
(iii) Prey base of native fishes, or soft-rayed, nonnative fish
species.
(iv) An absence of nonnative predators, such as fish species of the
families Centrarchidae and Ictaluridae, bullfrogs, and crayfish, or
occurrence of nonnative predators at low enough densities such that
recruitment of narrow-headed gartersnakes is not inhibited and
maintenance of viable prey populations is still occurring.
(v) Elevations of 2,300 to 8,200 feet (700 to 2,500 meters).
(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
the effective date of this rule.
(4) Critical habitat map units. Data layers defining map units
included the U.S. Geological Survey's 7.5' quadrangles, National
Hydrography Dataset and National Elevation Dataset; the Service's
National Wetlands Inventory dataset; and aerial imagery from Google
Earth Pro. Line locations for lotic streams (flowing water) and
drainages are depicted as the ``Flowline'' feature class from the
National Hydrography Dataset geodatabase. The active channel along a
stream is depicted as the ``Wetlands'' feature class from the Service's
National Wetlands Inventory dataset. Any discrepancies between the
``Flowline'' and ``Wetlands'' feature classes were resolved using
aerial imagery from Google Earth Pro. Elevation range is masked using
the ``Elev_Contour'' feature class of the National Elevation Dataset.
The administrative boundaries for Arizona and New Mexico were obtained
from the Arizona Land Resource Information Service and New Mexico
Resource Geographic Information System, respectively. This includes the
most current (as of the effective date of this rule) geospatial data
available for land ownership, counties, States, and streets. Locations
depicting critical habitat are expressed as decimal degree latitude and
longitude in the World Geographic Coordinate System projection using
the 1984 datum (WGS84). The maps in this entry, as modified by any
accompanying regulatory text, establish the boundaries of the critical
habitat designation. The coordinates or plot points or both on which
each map is based are available to the public at the Service's internet
site at https://www.fws.gov/southwest/es/arizona/, at https://www.regulations.gov at Docket No. FWS-R2-ES-2020-0011, 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) Note: Index map follows:
BILLING CODE P

[[Page 23649]]

[GRAPHIC] [TIFF OMITTED] TP28AP20.000

(6) Unit 1: Upper Gila River Subbasin Unit, Grant and Hidalgo
Counties, New Mexico.
(i) General description: Unit 1 consists of 5,429 ac (2,197 ha) in
Grant and Hidalgo Counties, and is composed of lands in Federal (2,827
ac (1,144 ha)), State (278 ac (113 ha)), and private (2,323 ac (940
ha)) ownership in eight subunits west of the town of Glenwood, north of
Silver City, and South of Gila and Cliff.
(ii) Map of Unit 1 follows:

[[Page 23650]]

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(7) Unit 2: San Francisco River Subbasin Unit, Catron County, New
Mexico.
(i) General description: Unit 2 consists of 4,905 ac (1,985 ha) in
Catron County, and is composed of lands in Federal (2,753 ac (1,114
ha)) and private (2,152 ac (871 ha)) ownership in six subunits near the
towns of Glenwood and Reserve.
(ii) Map of Unit 2 follows:

[[Page 23651]]

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(8) Unit 3: Blue River Subbasin Unit, Greenlee County, Arizona, and
Catron County, New Mexico.
(i) General description: Unit 3 consists of 2,971 ac (1,202 ha) in
Greenlee County, Arizona, and Catron County, New Mexico, and is
composed of lands in Federal (2,510 ac (1,016 ha)) and private (460 ac
(186 ha)) ownership in three subunits near the towns of Blue, Arizona,
and Luna, New Mexico.
(ii) Map of Unit 3 follows:

[[Page 23652]]

[GRAPHIC] [TIFF OMITTED] TP28AP20.003

(9) Unit 4: Eagle Creek Unit, Graham and Greenlee Counties,
Arizona.
(i) General description: Unit 4 consists of 336 ac (136 ha) in
Graham and Greenlee Counties, and is composed of lands in Federal (99
ac (40 ha)), Tribal (236 ac (96 ha)), and private (1 ac (<1 ha))
ownership near the town of Morenci.
(ii) Map of Unit 4 follows:

[[Page 23653]]

[GRAPHIC] [TIFF OMITTED] TP28AP20.004

(10) Unit 5: Black River Subbasin Unit, Apache, Graham, and
Greenlee Counties, Arizona.
(i) General description: Unit 5 consists of 1,607 ac (650 ha) in
Apache, Graham, and Greenlee Counties, and is composed of lands in
Federal (1,414 ac (572 ha)) and Tribal (194 ac (78 ha)) ownership in
six subunits near the towns of Maverick and Hannigan Meadow.
(ii) Map of Unit 5 follows:

[[Page 23654]]

[GRAPHIC] [TIFF OMITTED] TP28AP20.005

(11) Unit 6: Canyon Creek Unit, Gila County, Arizona.
(i) General description: Unit 6 consists of 232 ac (94 ha) in Gila
County, and is composed of lands in Federal (155 ac (63 ha)) and Tribal
(77 ac (31 ha)) ownership southwest of the town of Heber.
(ii) Map of Unit 6 follows:

[[Page 23655]]

[GRAPHIC] [TIFF OMITTED] TP28AP20.006

(12) Unit 7: Tonto Creek Subbasin Unit, Gila County, Arizona.
(i) General description: Unit 7 consists of 1,390 ac (562 ha) in
Gila County, and is composed of lands in Federal (1,285 ac (520 ha))
and private (105 ac (42 ha)) ownership in three subunits near the towns
of Jakes Corner and Gisela.
(ii) Map of Unit 7 follows:

[[Page 23656]]

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(13) Unit 8: Verde River Subbasin Unit, Coconino and Yavapai
Counties, Arizona.
(i) General description: Unit 8 consists of 1,832 ac (741 ha) in
Coconino and Yavapai Counties, and is composed of lands in Federal
(1,343 ac (544 ha)), State (51 ac (21 ha)), and private (437 ac (177
ha)) ownership in three subunits near the towns of Sedona and
Perkinsville.
(ii) Map of Unit 8 follows:

[[Page 23657]]

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BILLING CODE C
Northern Mexican Gartersnake (Thamnophis eques megalops)
(1) Critical habitat units are depicted for La Paz, Mohave,
Yavapai, Gila, Cochise, Santa Cruz, and Pima Counties in Arizona, and
Grant County in New Mexico, on the maps in this entry.
(2) Within these areas, the physical or biological features
essential to the conservation of northern Mexican gartersnake consist
of the following components:
(i) Perennial or spatially intermittent streams that provide both
aquatic and terrestrial habitat that allows for immigration,
emigration, and maintenance of population connectivity of northern
Mexican gartersnakes and contain:
(A) Slow-moving water (walking speed) with in-stream pools, off-
channel pools, and backwater habitat;
(B) Organic and natural inorganic structural features (e.g.,
boulders, dense aquatic and wetland vegetation, leaf litter, logs, and
debris jams) within the stream channel for thermoregulation, shelter,
foraging opportunities, and protection from predators;
(C) Terrestrial habitat adjacent to the stream channel that
includes riparian vegetation, small mammal burrows, boulder fields,
rock crevices, and downed woody debris for thermoregulation, shelter,
foraging opportunities, brumation, and protection from predators; and
(D) Water quality that is absent of pollutants or, if pollutants
are present, at levels low enough such that recruitment of northern
Mexican gartersnakes is not inhibited.

[[Page 23658]]

(ii) Hydrologic processes that maintain aquatic and terrestrial
habitat through:
(A) A natural flow regime that allows for periodic flooding, or if
flows are modified or regulated, a flow regime that allows for the
movement of water, sediment, nutrients, and debris through the stream
network; and
(B) Physical hydrologic and geomorphic connection between a stream
channel and its adjacent riparian areas.
(iii) Prey base of primarily native anurans, fishes, small mammals,
lizards, and invertebrate species.
(iv) An absence of nonnative fish species of the families
Centrarchidae and Ictaluridae, bullfrogs (Lithobates catesbeianus),
and/or crayfish (Orconectes virilis, Procambarus clarki, etc.), or
occurrence of these nonnative species at low enough levels such that
recruitment of northern Mexican gartersnakes is not inhibited and
maintenance of viable prey populations is still occurring.
(v) Elevations from 130 to 8,500 feet (40 to 2,590 meters).
(vi) Lentic wetlands including off-channel springs, cienegas, and
natural and constructed ponds (small earthen impoundment) with:
(A) Organic and natural inorganic structural features (e.g.,
boulders, dense aquatic and wetland vegetation, leaf litter, logs, and
debris jams) within the ordinary high water mark for thermoregulation,
shelter, foraging opportunities, brumation, and protection from
predators;
(B) Riparian habitat adjacent to ordinary high water mark that
includes riparian vegetation, small mammal burrows, boulder fields,
rock crevices, and downed woody debris for thermoregulation, shelter,
foraging opportunities, and protection from predators; and
(C) Water quality that is absent of pollutants or, if pollutants
are present, at levels low enough such that recruitment of northern
Mexican gartersnakes is not inhibited.
(vii) Ephemeral channels that connect perennial or spatially
interrupted perennial streams to lentic wetlands in southern Arizona
where water resources are limited.
(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
the effective date of this rule.
(4) Critical habitat map units. Data layers defining map units
included the U.S. Geological Survey's 7.5' quadrangles, National
Hydrography Dataset, and National Elevation Dataset; the Service's
National Wetlands Inventory dataset; and aerial imagery from Google
Earth Pro. Line locations for lotic streams (flowing water) and
drainages are depicted as the ``Flowline'' feature class from the
National Hydrography Dataset geodatabase. Point locations for lentic
sites (ponds) are depicted as ``NHDPoint'' feature class from the
National Hydrography Dataset geodatabase. Extent of riparian habitat
surrounding lotic streams and lentic sites is depicted by the greater
of the ``Wetlands'' and ``Riparian'' features classes of the Service's
national Wetlands Inventory dataset and further refined using aerial
imagery from Google Earth Pro. Elevation range is masked using the
``Elev_Contour'' feature class of the National Elevation Dataset.
Administrative boundaries for Arizona and New Mexico were obtained from
the Arizona Land Resource Information Service and New Mexico Resource
Geographic Information System, respectively. This includes the most
current (as of the effective date of this rule) geospatial data
available for land ownership, counties, States, and streets. Locations
depicting critical habitat are expressed as decimal degree latitude and
longitude in the World Geographic Coordinate System projection using
the 1984 datum (WGS84). The maps in this entry, as modified by any
accompanying regulatory text, establish the boundaries of the critical
habitat designation. The coordinates or plot points or both on which
each map is based are available to the public at the Service's internet
site at https://www.fws.gov/southwest/es/arizona/, at https://www.regulations.gov at Docket No. FWS-R2-ES-2020-0011, 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) Note: Index map follows:
BILLING CODE P

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(6) Unit 1: Upper Gila River Subbasin Unit, Grant County, New
Mexico.
(i) General description: Unit 1 consists of 1,132 ac (458 ha) in
Grant County, and is composed of lands in State (22 ac (9 ha)), and
private (1,110 ac (449 ha)) ownership in two subunits near the towns of
Cliff and Gila.
(ii) Map of Unit 1 follows:

[[Page 23660]]

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(7) Unit 2: Tonto Creek Unit, Gila County, Arizona.
(i) General description: Unit 2 consists of 4,302 ac (1,741 ha) in
Gila County, and is composed of lands in Federal (3,337 ac (1,350 ha)),
and private (966 ac (391 ha)) ownership near the towns of Gisela and
Punkin Center.
(ii) Map of Unit 2 follows:

[[Page 23661]]

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(8) Unit 3: Verde River Subbasin Unit, Yavapai County, Arizona.
(i) General description: Unit 3 consists of 5,246 ac (2,123 ha) in
Yavapai County, and is composed of lands in Federal (856 ac (346 ha)),
State (705 ac (285 ha)), Tribal (88 ac (36 ha), and private (3,597 ac
(1,456 ha)) ownership in three subunits near the towns of Cottonwood,
Cornville, Page Springs, and Camp Verde.
(ii) Map of Unit 3 follows:

[[Page 23662]]

[GRAPHIC] [TIFF OMITTED] TP28AP20.012

(9) Unit 4: Bill Williams River Subbasin Unit, La Paz and Mohave
Counties, Arizona.
(i) General description: Unit 4 consists of 4,049 ac (1,639 ha) in
La Paz and Mohave Counties, and is composed of lands in Federal (2,121
ac (858 ha)), State (202 ac (82 ha)), and private (1,727 ac (699 ha))
ownership in three subunits near the towns of Parker and Signal.
(ii) Map of Unit 4 follows:

[[Page 23663]]

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(10) Unit 5: Lower Colorado River Unit, Mojave County, Arizona.
(i) General description: Unit 5 consists of 4,467 ac (1,808 ha) in
Mojave County and is composed of lands in Federal ownership within the
Havasu National Wildlife Refuge.
(ii) Map of Unit 5 follows:

[[Page 23664]]

[GRAPHIC] [TIFF OMITTED] TP28AP20.014

(11) Unit 6: Arivaca Cienega Unit, Pima County, Arizona.
(i) General description: Unit 6 consists of 211 ac (86 ha) in Pima
County and is composed of lands in Federal (149 ac (60 ha)), State (1
ac (<1 ha)), and private (62 ac (25 ha)) ownership near the town of
Arivaca.
(ii) Map of Unit 6 follows:

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(12) Unit 7: Cienega Creek Subbasin Unit, Pima County, Arizona.
(i) General description: Unit 7 consists of 2,030 ac (821 ha) in
Pima County and is composed of lands in Federal (1,112 ac (451 ha)),
State (366 ac (148 ha)), and private (550 ac (220 ha)) ownership in
four subunits near the towns of Tucson, Vail, and Sonoita.
(ii) Map of Unit 7 follows:

[[Page 23666]]

[GRAPHIC] [TIFF OMITTED] TP28AP20.016

(13) Unit 8: Upper Santa Cruz River Subbasin Unit, Santa Cruz and
Cochise Counties, Arizona.
(i) General description: Unit 8 consists of 496 ac (201 ha) in
Santa Cruz and Cochise Counties, and is composed of lands in Federal
(45 ac (18 ha)), State (111 ac (45 ha)), and private (340 ac (138 ha))
ownership in eight subunits near the towns of Sonoita and Patagonia.
(ii) Map of Unit 8 follows:

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(14) Unit 9: Upper San Pedro River Subbasin Unit, Cochise and Santa
Cruz Counties, Arizona.
(i) General description: Unit 9 consists of 5,850 ac (2,367 ha) in
Cochise and Santa Cruz Counties, and is composed of lands in Federal
(5,197 ac (2,103 ha)), State (8 ac (3 ha)), and private (645 ac (261
ha)) ownership in six subunits near the towns of Sierra Vista and
Elgin.
(ii) Map of Unit 9 follows:

[[Page 23668]]

[GRAPHIC] [TIFF OMITTED] TP28AP20.018

BILLING CODE C
* * * * *

Aurelia Skipwith,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2020-08069 Filed 4-27-20; 8:45 am]
BILLING CODE 4333-15-P

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