Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Northern Mexican Gartersnake, 22518-22580 [2021-07572]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 86, Number 80 (Wednesday, April 28, 2021)]
[Rules and Regulations]
[Pages 22518-22580]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-07572]



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Vol. 86

Wednesday,

No. 80

April 28, 2021

Part II





Department of the Interior





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Fish and Wildlife Service





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50 CFR Part 17





Endangered and Threatened Wildlife and Plants; Designation of Critical 
Habitat for the Northern Mexican Gartersnake; Final Rule

Federal Register / Vol. 86 , No. 80 / Wednesday, April 28, 2021 / 
Rules and Regulations

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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 212]
RIN 1018-BD96


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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate 
critical habitat for the northern Mexican gartersnake (Thamnophis eques 
megalops) under the Endangered Species Act of 1973 (Act), as amended. 
In total, approximately 20,326 acres (8,226 hectares) in La Paz, 
Mohave, Yavapai, Gila, Cochise, Santa Cruz, and Pima Counties, Arizona, 
and Grant County, New Mexico, fall within the boundaries of the 
critical habitat designation for the northern Mexican gartersnake. This 
rule extends the Act's protections to the northern Mexican 
gartersnake's designated critical habitat.

DATES: This rule is effective May 28, 2021.

ADDRESSES: This final rule is available on the internet at https://www.regulations.gov. Comments and materials we received, as well as 
supporting documentation we used in preparing this rule, are available 
for public inspection at https://www.regulations.gov at Docket No. FWS-
R2-ES-2020-0011.
    The coordinates or plot points or both from which the maps are 
generated are included in the administrative record for this critical 
habitat designation and are available at https://www.regulations.gov at 
Docket No. FWS-R2-ES-2020-0011 and on the Service's website at https://www.fws.gov/southwest/es/arizona/. Any additional tools or supporting 
information that we developed for this critical habitat designation 
will also be available on the Service's website and may also be 
included in the preamble and at https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Jeff Humphrey, Field Supervisor, U.S. 
Fish and Wildlife Service, Arizona Ecological Services Field 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. Under the Act, if we determine that 
a species is an endangered or threatened species, we must designate 
critical habitat to the maximum extent prudent and determinable. On 
July 8, 2014, we published a final rule to list the northern Mexican 
gartersnake as a threatened species (79 FR 38678). Designations of 
critical habitat can be completed only by issuing a rule.
    What this document does. This rule designates critical habitat for 
the northern Mexican gartersnake of approximately 20,326 acres (ac) 
(8,226 hectares (ha)) in La Paz, Mohave, Yavapai, Gila, Cochise, Santa 
Cruz, and Pima Counties, Arizona, and Grant County, New Mexico.
    The basis for our action. Under section 4(a)(3) of the Act, if we 
determine that any species is an endangered or threatened species we 
must, to the maximum extent prudent and determinable, designate 
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. Under Section 4(b)(2) of the Act, the Secretary may 
exclude an area from critical habitat if she determines that the 
benefits of such exclusion outweigh the benefits of specifying such 
areas as part of critical habitat, unless she determines, based on the 
best scientific data available, that the failure to designate such area 
as critical habitat will result in the extinction of the species. 
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.
    The critical habitat we are designating in this rule, consisting of 
eight units comprising approximately 217 stream miles (mi) (349 
kilometers (km)) in an area of 20,326 ac (8,226 ha) for the northern 
Mexican gartersnake, constitutes our current best assessment of the 
areas that meet the definition of critical habitat for the species.
    Peer review and public comment. During the proposed rule stage, we 
sought the expert opinions of eight appropriate specialists. We 
received responses from three specialists, which informed our 
determination. Information we received from peer review is incorporated 
into this final rule. We also considered all comments and information 
we received from the public during the comment period.

Previous Federal Actions

    Please refer to the final listing rule (79 FR 38678; July 8, 2014), 
the original proposed critical habitat rule (78 FR 41550; July 10, 
2013), and the revised proposed critical habitat rule (85 FR 23608; 
April 28, 2020) for the northern Mexican gartersnake for a detailed 
description of previous Federal actions concerning this species. Those 
rules included the narrow-headed gartersnake (Thamnophis 
rufipunctatus), but this rule designates critical habitat only for the 
northern Mexican gartersnake; we will address critical habitat for the 
narrow-headed gartersnake in future Federal Register publications.

Supporting Documents

    In the revised proposed critical habitat rule (85 FR 23608; April 
28, 2020), we stated that a draft analysis document under the National 
Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.) for the 
designation of critical habitat would be completed. We have now 
finalized an environmental assessment with a finding of no significant 
impact under NEPA. The document and finding of no significant impact is 
available at https://www.regulations.gov under Docket No. FWS-R2-ES-
2020-0011 and from the Arizona Ecological Services Field Office at 
https://www.fws.gov/southwest/es/arizona/. See Required Determinations, 
below, for a discussion of our NEPA obligations for this designation.
    No changes were made to our economic analysis after considering 
public comments on the draft document. The final economic analysis 
document (IEc 2019, entire) is available at https://www.regulations.gov 
under Docket No. FWS-R2-ES-2020-0011.

Summary of Changes From the Proposed Rule

    We reviewed the comments related to critical habitat for the 
northern Mexican gartersnake (see Summary of Comments and 
Recommendations), completed our analysis of areas considered for 
exclusion under section 4(b)(2) of the

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Act, reviewed our analysis of the physical or biological features 
(PBFs) essential to the long-term conservation of the northern Mexican 
gartersnake, and finalized the economic analysis of the designation. 
This final rule incorporates changes from our revised proposed critical 
habitat rule (85 FR 23608; April 28, 2020) based on the comments that 
we received, and have responded to in this document, and considers 
efforts to conserve the northern Mexican gartersnake.
    As a result, our final designation of critical habitat reflects the 
following changes from the April 28, 2020, revised proposed rule (85 FR 
23608):
    (1) We revised unit areas for Tonto Creek Unit, Verde River Subunit 
(in the Verde River Subbasin Unit), and Cienega Creek Subunit (in the 
Cienega Creek Subbasin Unit) based on comments we received regarding 
areas that did or did not contain the PBFs essential to the 
conservation of the species. These changes resulted in a net reduction 
of 687 acres (278 ha) of critical habitat.
    (2) We modified PBFs 1(D), 3, 6, and 6(C), as identified under 
Physical or Biological Features Essential to the Conservation of the 
Species, below.
    (3) We excluded approximately 6,769 ac (2,739 ha) from entire or 
portions of units, as identified in Table 2, Areas excluded from 
critical habitat designation by critical habitat unit for the northern 
Mexican gartersnake.
    (4) We corrected several errors in unit descriptions.

Summary of Comments and Recommendations

    We requested written comments from the public on the original 
proposed critical habitat rule (78 FR 41550; July 10, 2013) and on the 
revised proposed critical habitat rule (85 FR 23608; April 28, 2020) 
for the northern Mexican gartersnake. The comment period for the 
original proposed critical habitat rule opened on July 10, 2013, and 
closed on September 9, 2013; the comment period for the revised 
proposed critical habitat rule opened on April 28, 2020, and closed on 
June 29, 2020.
    For the original proposed critical habitat rule (78 FR 41550; July 
10, 2013), we contacted appropriate Federal, State, Tribal governments, 
and local agencies; scientific organizations; and other interested 
parties and invited them to comment on the proposed critical habitat 
designation. For the revised proposed critical habitat rule (85 FR 
23608; April 28, 2020), we again contacted all interested parties, 
including appropriate Federal and State agencies, Tribal governments, 
scientific experts and organizations, and other interested parties, and 
invited them to submit written comments on the revised proposal. In the 
April 28, 2020, revised proposed rule, we stated that any comments we 
received in response to the July 10, 2013, proposed rule need not be 
resubmitted as they would be fully considered in this final rule. 
Newspaper notices inviting general public comments were published 
throughout the range of the proposed critical habitat designation for 
both the original and revised proposed rules.
    During the comment period on the original proposed critical habitat 
rule (78 FR 41550; July 10, 2013), we received approximately 30 written 
comment letters on the proposed critical habitat designation. During 
the comment period on the revised proposed critical habitat rule (85 FR 
23608; April 28, 2020), we received an additional 40 comment letters on 
the revised proposed critical habitat designation or the draft economic 
analysis (IEc 2019, entire). We also received from several parties 
requests for exclusion of areas that were not identified in the revised 
proposed rule. We reviewed each exclusion request and whether the 
requester provided information or a reasoned rationale to initiate an 
analysis of exclusion or support an exclusion (see Policy Regarding 
Implementation of Section 4(b)(2) of the Endangered Species Act (81 FR 
7226; February 11, 2016)). All substantive information provided during 
both comment periods has either been incorporated directly into this 
final determination or is addressed in our responses below.
    We also note that we no longer use primary constituent elements 
(PCEs) to identify areas as critical habitat. We eliminated PCEs 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. In the revised proposed critical habitat rule (85 FR 23608; 
April 28, 2020), 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 the species; and (3) the criteria 
used to identify critical habitat boundaries. We then applied the 
revised PBFs and identification criteria for the 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. We received comments on the original proposed critical 
habitat rule (78 FR 41550; July 10, 2013) that referred to PCEs, and 
our responses to those comments below correlate with the respective 
PBFs from the revised proposed critical habitat rule (85 FR 23608; 
April 28, 2020).

Peer Review

    In accordance with our peer review policy published on July 1, 1994 
(59 FR 34270), and our August 22, 2016, memorandum updating and 
clarifying the role of peer review actions under the Act, we solicited 
expert opinion on the original proposed critical habitat rule (78 FR 
41550; July 10, 2013) from eight knowledgeable individuals with 
scientific expertise that includes familiarity with the northern 
Mexican gartersnake and the narrow-headed gartersnake and their 
habitats, biological needs, and threats. We received responses from 
three of the peer reviewers. In 2020, during the public comment period 
for the revised proposed critical habitat rule (85 FR 23608; April 28, 
2020), we received comments from one of the peer reviewers regarding 
our revised proposed rule. We address these peer reviewer comments in 
this final rule as appropriate.
    This rule designates critical habitat only for the northern Mexican 
gartersnake; therefore, in this rule, we limit our discussion of the 
peer reviewer and public comments we received to those concerning the 
northern Mexican gartersnake. We will respond to public comments on the 
narrow-headed gartersnake critical habitat designation when we finalize 
that rule. We reviewed all the comments we received from the peer 
reviewers for substantive issues and new information regarding the 
northern Mexican gartersnake and its habitat use and needs. The peer 
reviewers provided additional information, clarifications, and 
suggestions to improve the designation. Our revised proposed critical 
habitat rule (85 FR 23608; April 28, 2020) was developed in part to 
address some of the concerns and information raised by the peer 
reviewers in 2013. The additional details and information received or 
raised by the peer reviewers have been incorporated into this final 
rule, as appropriate. Substantive comments we received from peer 
reviewers as well as Federal, State, Tribal, and local governments, 
nongovernmental organizations, and the public are summarized below.
    Comment 1: One peer reviewer commented that nonnative fishes of the

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Centrarchidae and Ictaluridae families characterized by the term 
``spiny-rayed fishes'' are not the only nonnative fishes that are 
detrimental to native fishes that are the prey for the gartersnake. 
They stated that the red shiner in the Cyprinidae family, nonnative 
mosquitofish in the Poeciliidae family, and nonnative trouts in the 
Salmonidae family all negatively impact native fishes as well. A second 
peer reviewer also commented that brown trout are a harmful nonnative 
and would impact the physical or biological features related to lack of 
nonnative species in several subunits.
    Our Response: In determining the PBFs for the gartersnake, we 
intended to identify those species of nonnative fish that were both 
considered highly predatory on gartersnakes and also highly competitive 
with gartersnakes in terms of common prey resources. The nonnative fish 
species we view as most harmful to gartersnake populations include bass 
(Micropterus sp.), flathead catfish (Pylodictis sp.), channel catfish 
(Ictalurus sp.), sunfish (Centrarchidae), bullheads (Ameiurus sp.), 
bluegill (Lepomis sp.), crappie (Pomoxis sp.,) and brown trout. While 
other species may negatively impact native fishes, we highlighted the 
nonnative fish species that pose the greatest threat to northern 
Mexican gartersnakes.
    Comment 2: One peer reviewer stated that our application of the 
``adverse modification'' standard to fish renovation efforts is flawed 
because we can salvage gartersnakes prior to stream renovations and 
release them after a native fish prey base has been reestablished.
    Our Response: For the public and section 7 practitioners to 
understand the types of actions considered to have potential effects to 
designated critical habitat, we generally identify those types of 
actions that could potentially result in adverse modification of 
designated critical habitat. The actual effects of a proposed action on 
designated critical habitat are dependent on many factors related to 
both the action being proposed and the project area. Conservation 
measures can be evaluated against specific attributes of the proposed 
action at the time of consultation for their suitability and potential 
implementation. We agree that salvaging gartersnakes prior to stream 
renovations and then releasing them after a native fish prey base has 
been reestablished could be a conservation recommendation identified 
during section 7 consultation to address effects of such a proposed 
action that includes fish renovation efforts.
    Comment 3: One peer reviewer stated that no areas should be 
excluded from the critical habitat designation based on existing 
habitat conservation plans because we cannot enforce implementation of 
conservation plans.
    Our Response: Section 4(b)(2) of the Act (16 U.S.C. 1531 et seq.) 
states that we 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 Act provides that we may exclude an area from critical 
habitat if we determine that the benefits of such exclusion outweigh 
the benefits of specifying such area as part of the critical habitat, 
unless we determine, 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. Under our Policy Regarding 
Implementation of Section 4(b)(2) of the Act, (81 FR 7226; February 11, 
2016), when conducting this analysis we consider a number of factors 
including whether there are permitted conservation plans covering the 
species in the area such as habitat conservation plans, 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. Under the policy, we analyze habitat 
conservation plans when weighing whether the benefits of exclusion 
outweigh the benefits of including these areas in the critical habitat 
designation and provides guidance on the analysis, including looking at 
whether the permittee is properly implementing the plan and is expected 
to continue doing so. We have conducted a weighing analysis to 
determine if the benefits of exclusion outweigh the benefits of 
including these areas and have used our discretion to determine if the 
existing habitat conservation plans are sufficient to conserve the 
species (see Exclusions, below).
    Comment 4: One peer reviewer commented that it would be helpful to 
have a rating system for the PBFs about prey bases consisting of native 
fishes and an absence of nonnative fishes, to show a gradient among 
sites.
    Our Response: For recovery implementation purposes, we see value in 
understanding and tracking the status of the PBFs related to prey base 
and absence of nonnative aquatic predators, such as nonnative fishes. 
However, in terms of species composition or relative abundance, we do 
not currently have information on what the threshold of each nonnative 
aquatic predator or combination thereof is to be considered detrimental 
to the northern Mexican gartersnake. These thresholds would also vary 
depending on the condition of other PBFs, including organic and 
inorganic structural features in a stream or lentic water body.

Federal Agency Comments

    Comment 5: The U.S. Forest Service (USFS) commented that the term 
``spatially intermittent flow'' used in PCE 1 of the original proposed 
critical habitat rule (78 FR 41550; July 10, 2013) is ambiguous because 
spacing between sections of flowing water can vary greatly and may not 
meet the biological needs of the gartersnake or its prey base. Also in 
response to that 2013 proposed critical habitat rule, another agency 
requested we justify inclusion of long ephemeral reaches of otherwise 
perennial streams (i.e., San Pedro River) in critical habitat for the 
northern Mexican gartersnake.
    Our Response: In the revised proposed critical habitat rule (85 FR 
23608; April 28, 2020) and this rule, we define perennial, 
intermittent, and ephemeral as related to stream flow included in PBF 1 
for the northern Mexican gartersnake and clarify the spectrum of stream 
flow regimes that provide stream habitat for the species based on 
scientifically accepted stream flow definitions (Levick et al. 2008, p. 
6; Stromberg et al. 2009, p. 330) (see ``Stream Flow'' in 85 FR 23608, 
April 28, 2020, p. 23613; and Physical or Biological Features Essential 
to the Conservation of the Species, below).
    Comment 6: USFS requested clarification of what level of water 
pollutants are ``low enough not to affect recruitment'' for PBFs 1(D) 
and 6(C) for the northern Mexican gartersnake in the revised proposed 
critical habitat rule (85 FR 23608; April 28, 2020).
    Our Response: We do not have specific data related to water 
pollutants that are ``low enough to affect recruitment'' for the 
northern Mexican gartersnake. Therefore, in this rule, we have amended 
these PBFs to read as follows: ``Water quality that meets or exceeds 
applicable State surface water quality standards'' (see Physical or 
Biological Features Essential to the Conservation of the Species, 
below). Although water quality is not identified as a threat to the 
northern Mexican gartersnake, it is a threat to its prey base. Water 
quality that is absent of pollutants or has low levels of pollutants is 
needed to support the aquatic prey base for the northern Mexican 
gartersnake. State

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water quality standards identify levels of pollutants required to 
maintain communities of organisms that have a taxa richness, species 
composition, and functional organization that includes the aquatic prey 
base of the northern Mexican gartersnake.
    Comment 7: In response to the original proposed critical habitat 
rule (78 FR 41550; July 10, 2013), USFS commented that including stock 
tanks as critical habitat for the northern Mexican gartersnake may be 
problematic. USFS stated that maintaining stock tanks for recovery of 
the species may divert surface water that might otherwise contribute to 
better habitat, they may contribute to groundwater pumping, and they 
provide refuge and dispersal for American bullfrogs (Rana catesbeiana).
    Our Response: Six constructed ponds (small earthen empoundments) 
are included in this final designation of critical habitat for the 
northern Mexican gartersnake. Four of these constructed ponds were 
originally created for livestock and considered stock tanks. Three of 
these stock tanks are in the Cienega Creek Subbasin Unit, and one is in 
the Upper Santa Cruz River Subbasin Unit. Two additional constructed 
ponds are in the Upper San Pedro River Subbasin Unit. Similar to most 
constructed ponds in arid zones that collect surface water, each of the 
six constructed ponds included in the critical habitat designation 
collect surface water from a stream that would not otherwise be 
perennial or even intermittent, and therefore would not contribute to 
better habitat for the northern Mexican gartersnake. In addition to 
catching surface water run-off, the three stock tanks on Las Cienegas 
National Conservation Area (NCA) in the Cienega Creek Subbasin Unit are 
also supplied by groundwater supplied by adjacent wells. The amount of 
water that may be pumped for these three stock tanks is small and not 
likely to meaningfully contribute to declining groundwater levels in 
the Cienega Creek watershed.
    While we understand that all ponds can facilitate the invasion of 
bullfrogs; bullfrog control efforts are ongoing in southeastern Arizona 
where these six constructed ponds occur. Bullfrogs have been eradicated 
from the three ponds on Las Cienegas NCA since 2013, and although the 
constructed pond that serves as a stock tank on USFS lands is currently 
infested with bullfrogs, there are plans to eradicate bullfrogs in this 
area once funding is obtained. The fifth constructed pond is on the 
Appleton-Whittell Research Ranch and has been regularly monitored for 
bullfrogs for at least five years. If a bullfrog is found, it is 
immediately removed. The sixth constructed pond is on USFS lands, has 
never been infested with bullfrogs, and is not within dispersal 
distance of currently known bullfrog sites.
    All three constructed ponds on Las Cienegas NCA and one on USFS 
lands included in the final designation were recently renovated by the 
land manager to provide habitat for native aquatic species including 
the northern Mexican gartersnake, and we conclude that they contribute 
to the conservation of the species. All other constructed ponds that 
may also serve as stock tanks on the Las Cienegas NCA and USFS lands 
are no longer included in critical habitat because they are not 
considered occupied by the northern Mexican gartersnake (see Criteria 
Used to Identify Critical Habitat, below).
    Comment 8: In response to the original proposed critical habitat 
rule (78 FR 41550; July 10, 2013), a Federal agency stated that we 
should make it clear that when the 600-feet (ft) width of critical 
habitat falls outside the stream channel, such as when channels are 
constricted by narrow canyon walls, critical habitat does not include 
upland areas that would not be used by the northern Mexican 
gartersnake.
    Our Response: In the revised proposed critical habitat rule (85 FR 
23608; April 28, 2020) and in this rule, for the northern Mexican 
gartersnake, we define the lateral extent of critical habitat to 
include the wetland or riparian zone adjacent to a stream or lentic 
water body, whichever is greater. We delineate based on riparian zone 
rather than delineating a set distance, as this approach more 
accurately captures areas used by the northern Mexican gartersnake for 
thermoregulation, shelter, foraging opportunities, brumation, and 
protection from predators. Thus, we conclude that the changes that we 
made address this comment.
    Comment 9: In response to the original proposed critical habitat 
rule (78 FR 41550; July 10, 2013), USFS stated that bankfull stage 
cannot be defined for reservoirs within the proposed critical habitat 
and we should consider defining critical habitat for reservoirs or 
lakes from the maximum capacity of the water body.
    Our Response: In the revised proposed critical habitat rule (85 FR 
23608; April 28, 2020) and this rule, we define the extent of critical 
habitat around lentic water bodies as the riparian habitat adjacent to 
the ordinary high water mark. There are no reservoirs included in this 
final designation for northern Mexican gartersnake.
    Comment 10: In response to the original proposed critical habitat 
rule (78 FR 41550; July 10, 2013), USFS commented that the gartersnakes 
have strong fidelity for brumation or natal sites.
    Our Response: We are not aware of any literature supporting a 
conclusion that the northern Mexican gartersnake has strong fidelity 
for brumation or natal sites. In this designation, we include some 
areas that capture the physical or biological features of brumation 
sites that have been documented in telemetry studies conducted for the 
species that are described in the revised proposed critical habitat 
rule (85 FR 23608, April 28, 2020, see ``Terrestrial Space Along 
Streams'' on pp. 85 FR 23614-23616).
    Comment 11: In response to the original proposed critical habitat 
rule (78 FR 41550; July 10, 2013), a Federal agency requested more 
discussion related to including broad areas of terrestrial habitat in 
critical habitat for the northern Mexican gartersnake and that we 
explain why these areas are based on political rather than biological 
boundaries.
    Our Response: In the revised proposed critical habitat rule (85 FR 
23608; April 28, 2020) and this rule, we do not include broad areas of 
terrestrial habitat in the critical habitat designation, and we do not 
base critical habitat on political boundaries (85 FR 23608, April 28, 
2020, see ``Overland Areas for Northern Mexican Gartersnake'' on pp. 85 
FR 23616-23617; and see Regulation Promulgation, below).
    Comment 12: In response to the original proposed critical habitat 
rule (78 FR 41550; July 10, 2013), USFS commented that PBF 3 for 
northern Mexican gartersnake should read ``amphibians and/or fishes'' 
as opposed to ``both amphibians and fishes'' because some sites might 
have one or the other and this species could persist without having 
both classes of vertebrates present.
    Our Response: In the revised proposed critical habitat rule (85 FR 
23608; April 28, 2020), we expanded the prey base in PBF 3 to include 
``anurans, fishes, small mammals, lizards, and invertebrate species'' 
to more accurately capture the northern Mexican gartersnake's primary 
prey across a variety of habitats (see ``Prey Base'' on p. 85 FR 
23614). We did not intend to imply that both classes of aquatic 
vertebrate species need to be present in all critical habitat. To 
clarify this PBF, in this rule, we revise it to read, ``a combination 
of amphibians, fishes, small mammals, lizards, and invertebrate species 
such that prey

[[Page 22522]]

availability occurs across seasons and years'' (see Regulation 
Promulgation, below).
    Comment 13: In response to the original proposed critical habitat 
rule (78 FR 41550; July 10, 2013), several Federal entities commented 
that various areas in the proposal do not currently contain the PBFs 
for northern Mexican gartersnakes. USFS further stated that it would be 
more realistic if we limited critical habitat to the areas that had the 
PBFs, if the PBFs are clearly defined and determinable.
    Our Response: For the revised proposed critical habitat rule (85 FR 
23608; April 28, 2020), we reevaluated all streams to determine which 
stream reaches contain PBFs. The revised proposed critical habitat rule 
and this rule do not include stream reaches where we determined that 
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. The 
revised proposed critical habitat rule (85 FR 23608; April 28, 2020) 
and this rule include areas that were occupied at the time of listing 
but where PBFs concerning prey availability and presence of nonnative 
aquatic predators are often in degraded condition and need special 
management (see 85 FR 23608, April 28, 2020, Changes to Criteria Used 
to Identify Critical Habitat, pp. 85 FR 23617-23623; and see Regulation 
Promulgation, below).
    Comment 14: In response to the original proposed critical habitat 
rule (78 FR 41550; July 10, 2013), several Federal agencies provided 
lists of specific areas included in proposed critical habitat that do 
not have stream flow requirements defined in PBF 1A to support the 
northern Mexican gartersnakes or their corresponding prey species 
identified in PBF 3. These agencies identified reaches that lacked PBF 
1A in some areas along the following streams included in the 2013 
proposed critical habitat rule for northern Mexican gartersnake: Agua 
Fria River in the Agua Fria River Subbasin, Mule Creek in the Gila 
River Subbasin, and Spring Creek in the Verde River Subbasin. These 
areas included stream reaches where water flow became completely 
ephemeral along an otherwise perennial or spatially intermittent 
stream.
    Our Response: In the revised proposed critical habitat rule (85 FR 
23608; April 28, 2020), we did not include stream reaches where water 
flow becomes completely ephemeral along an otherwise perennial or 
spatially intermittent stream, and we incorporated related information 
received from USFS and others regarding stream flow. We incorporated 
stream flow information received from USFS for Little Creek in the 
Verde River Subbasin Unit for northern Mexican gartersnake. Based on 
information from USFS and others related to lack of stream flow along 
Spring Creek, designated critical habitat for the northern Mexican 
gartersnake in Spring Creek ends 4 miles upstream of its confluence 
with Oak Creek. The rule set that we applied in the 2020 revised 
proposed critical habitat rule limited critical habitat to the known 
elevation range of the species and limited stream length by dispersal 
distance from confirmed gartersnake locations dated 1998 or later. When 
applied, these two factors of the rule set removed all other areas that 
USFS identified as not having stream flow requirements for the northern 
Mexican gartersnake.
    Comment 15: USFS and Fort Huachuca stated that many areas included 
in critical habitat in the original proposed critical habitat rule (78 
FR 41550; July 10, 2013) do not have PBF 4: An absence of nonnative 
fish species of the families Centrarchidae and Ictaluridae, bullfrogs, 
and/or crayfish. USFS also stated that much of proposed critical 
habitat may not have the capacity to ever become recolonized by the 
northern Mexican gartersnake due to the current and likely future 
conditions of these nonnative invasive species. In 2020, USFS further 
commented that it will be difficult if not impossible for USFS to 
attain this PBF on its lands that it manages because nonnative species 
are managed by the State and not by USFS.
    Our Response: The revised proposed critical habitat rule (85 FR 
23608; April 28, 2020) and this final rule include areas that were 
occupied at the time of listing, but areas that contain nonnative 
aquatic predators are often in degraded condition and require special 
management. While recognizing USFS concerns, these areas have the 
capacity to be managed to improve the condition of the PBFs for the 
northern Mexican gartersnake through cooperative efforts between State 
wildlife agencies and USFS, and these types of efforts have already 
successfully been undertaken by USFS and State wildlife agencies within 
the range of the northern Mexican gartersnake.
    Comment 16: In response to the revised proposed critical habitat 
rule (85 FR 23608; April 28, 2020), USFS stated that we did not provide 
much explanation for what might constitute special management 
considerations that may be needed in critical habitat, so it is not 
clear what types of management are likely to result in improved PBFs. 
USFS commented that there should be some recognition of the potential 
value of restorative actions that often have short-term adverse effects 
but are designed to result in beneficial effects (e.g., channel 
restoration, prescribed fire, riparian vegetation improvements, etc.).
    Our Response: In the 2020 revised proposed critical habitat rule, 
we stated that we were not changing any of the special management 
considerations from the 2013 original proposed critical habitat rule 
for the northern Mexican gartersnake (see 85 FR 23608, April 28, 2020, 
Special Management Considerations or Protection, p. 85 FR 23624). 
However, the 2013 original proposed critical habitat rule did not 
include recognition of the potential value of restorative actions that 
often have short-term adverse effects but are designed to result in 
beneficial effects (see 78 FR 41550, July 10, 2013, Special Management 
Considerations or Protection, pp. 78 FR 41555-41556). To address this 
comment and the information lacking in the 2013 original proposed 
critical habitat rule, we have added this information to the discussion 
of special management considerations in this final rule.
    Comment 17: In response to the original proposed critical habitat 
rule (78 FR 41550; July 10, 2013), USFS commented that the portion of 
the Gila River upstream of the Cliff-Gila Valley included in proposed 
critical habitat is far removed from any known, post-1980 records for 
the northern Mexican gartersnake species and should be removed from 
critical habitat.
    Our Response: In the revised proposed critical habitat rule (85 FR 
23608; April 28, 2020), we reviewed gartersnake occupancy to determine 
that a stream, stream reach, or lentic water body was occupied at the 
time of listing for the northern Mexican gartersnake if it is within 
the historical range of the species, contains PBFs for the species 
(although the PBFs concerning prey availability and presence of 
nonnative aquatic predators are often in degraded condition), and has a 
last known record of occupancy in 1998 or later (see Occupancy Records, 
85 FR 23608, p. 23617-23619) (see Criteria Used To Identify Critical 
Habitat). We also delineated upstream and downstream critical habitat 
boundaries of a stream reach at 2.2 mi (3.6 km) from a known 
gartersnake observation record (see 85 FR 23608, April 28, 2020, Stream

[[Page 22523]]

Length, pp. 85 FR 23619-23623). As a result, the Gila River upstream of 
the Cliff-Gila Valley is not included in this final critical habitat 
designation for the northern Mexican gartersnake (See Criteria Used to 
Identify Critical Habitat).
    Comment 18: In response to the original proposed critical habitat 
rule (78 FR 41550; July 10, 2013), a Federal agency requested that we 
consider adding five aquatic conservation sites within the San Pedro 
Riparian National Conservation Area (NCA) to critical habitat for the 
northern Mexican gartersnake as they may provide habitat for the 
species.
    Our Response: In the revised proposed critical habitat rule (85 FR 
23608; April 28, 2020), we determined that a stream, stream reach, or 
lentic water body was occupied at the time of listing for the northern 
Mexican gartersnake if it is within the historical range of the 
species, contains PBFs for the species (although the PBFs concerning 
prey availability and presence of nonnative aquatic predators are often 
in degraded condition), and has a last known record of occupancy in 
1998 or later. The five aquatic conservation sites within the San Pedro 
Riparian NCA do not meet these requirements because they do not have a 
record of occupancy in 1998 or later and, therefore, are not included 
in this final critical habitat designation.
    Comment 19: In response to the original proposed critical habitat 
rule (78 FR 41550; July 10, 2013), a Federal agency requested we 
clarify the downstream boundary of the Tonto Creek Unit to a specific 
fixed elevation no lower than the maximum pool of Roosevelt Lake. In 
response to the revised proposed critical habitat rule (85 FR 23608; 
April 28, 2020), they stated that we incorrectly identified the 
spillway elevation of Roosevelt Lake as 2,120 ft and that it should be 
2,100 ft.
    Our Response: Based on further inquiry with Bureau of Reclamation 
(Reclamation), in this rule we are changing the downstream terminus of 
Tonto Creek to 2,151 ft (656 meters (m)) because areas below this 
elevation do not meet the definition of critical habitat for the 
northern Mexican gartersnake under normal reservoir operations.
    Comment 20: In response to the original proposed critical habitat 
rule (78 FR 41550; July 10, 2013), USFS stated that proposed critical 
habitat will affect numerous livestock grazing allotments on the Tonto 
National Forest. In addition, another Federal agency stated concerns 
about current and potential future management of public lands within 
proposed designated critical habitat areas, including grazing and off-
highway vehicle (OHV) use. There is a grazing permit renewal under 
review that would allow for grazing October through January within the 
Palmerita Ranch allotment on riparian and upland areas. The agency also 
stated that there is a special recreational permit issued for an annual 
3-day OHV poker run event, which would occur partially on navigable 
washes on Federal lands.
    Our Response: With respect to livestock grazing and OHV use in 
areas of critical habitat, Federal agencies that authorize, carry out, 
or fund actions that may affect listed species or designated critical 
habitat are required to consult with us to ensure the action is not 
likely to jeopardize listed species or destroy or adversely modify 
designated critical habitat. This consultation requirement under 
section 7 of the Act is not a prohibition of Federal agency actions, 
rather it is a means by which they may proceed in a manner that avoids 
jeopardy or adverse modification. Even in areas absent designated 
critical habitat, if the Federal agency action may affect a listed 
species, consultation is still required to ensure the action is not 
likely to jeopardize the species. Because the areas designated as 
critical habitat are occupied and consultation will be required to meet 
the jeopardy standard, the impact of the critical habitat designation 
should be minimal and administrative in nature.
    Comment 21: In response to the original proposed critical habitat 
rule (78 FR 41550; July 10, 2013), USFS requested we define disturbance 
thresholds for actions ``that would significantly increase sediment 
deposition or scouring within the stream channel'' such as vegetation 
treatments, prescribed fire, and wildfire suppression. USFS also 
requested we include language addressing the scope, scale, and duration 
of actions ``that would alter water chemistry beyond the tolerance 
limits of a gartersnake prey base'' and actions ``that would remove, 
diminish, or significantly alter the structural complexity of key 
natural structural habitat features in and adjacent to critical 
habitat.'' USFS stated that these actions are extremely broad in scope 
and do not differentiate short-term impacts versus true long-term, more 
permanent impacts that could result in adverse modification.
    Our Response: The purpose of the designation of critical habitat to 
identify those areas critical to the conservation of the species. For 
the public and section 7 practitioners to understand the types of 
actions considered to have potential effects on designated critical 
habitat, we generally identify those types of actions that could 
potentially result in adverse modification of designated critical 
habitat. The actual effects of a proposed action on designated critical 
habitat are dependent on many factors related to both the action being 
proposed and the project area. Therefore, we cannot determine and 
include thresholds for adverse modification in this rule. The 
appropriate process for that determination is the section 7 process, 
during which specific factors within the proposed action and conditions 
within the project area can be evaluated.
    Comment 22: In response to the revised proposed critical habitat 
rule (85 FR 23608; April 28, 2020), USFS commented that ``[a]ctions and 
structures that would physically block movement of gartersnakes and 
their prey species'' should not include a discussion of predatory 
species. USFS argued that predatory species should not be included 
because the presence of nonnative aquatic predatory species in a 
waterbody reduces population viability, which is considered under 
actions included in those ``that would directly or indirectly result in 
the introduction, spread, or augmentation of predatory nonnative 
species in gartersnake habitat.''
    Our Response: Including this language with regard to nonnative 
aquatic predatory species within the description of actions and 
structures that would block the movements of gartersnakes and their 
prey species, as well as within the description of actions that would 
result in the introduction, spread, and augmentation of predatory 
nonnative species, is important to clarify two different types of 
effects that result from similar actions. The presence of such 
nonnative aquatic predatory species can both act as a barrier to 
movement and reduce habitat quality due to presence of nonnative 
aquatic predatory species.
    Comment 23: In response to both the original proposed critical 
habitat rule (78 FR 41550; July 10, 2013) and the revised proposed 
critical habitat rule (85 FR 23608; April 28, 2020), the U.S. Army 
installation at Fort Huachuca requested exclusion of areas outside the 
installation along portions of the San Pedro and Babocomari Rivers that 
fall within the San Pedro Riparian NCA in the Upper San Pedro River 
Subbasin Unit for the northern Mexican gartersnake. Fort Huachuca 
stated that we did not conduct an adequate national security analysis 
as required by section 4(b)(2) of the Act and that the designation 
could require additional water mitigation requirements and

[[Page 22524]]

mission restrictions that would negatively impact national security. 
Fort Huachuca also stated that the proposed critical habitat outside 
this area is more than adequate for recovery of this species.
    Our Response: For exclusion of an area from critical habitat 
designation based on national security, we look to our Policy Regarding 
Implementation of Section 4(b)(2) of the Endangered Species Act (81 FR 
7226; February 11, 2016), which outlines measures we consider when 
excluding any areas from critical habitat. We reviewed the commenter's 
request and applied the Policy Regarding Implementation of Section 
4(b)(2) of the Endangered Species Act (81 FR 7226; February 11, 2016). 
Based on this analysis, we determined that the area should not be 
excluded from this final rule due to national security. Please see 
Exclusions (Exclusions Based on Impacts on National Security and 
Homeland Security), below, for our analysis of the Fort Huachuca 
request for exclusion for lands within the San Pedro Riparian NCA.
    Comment 24: In response to the revised proposed critical habitat 
rule (85 FR 23608; April 28, 2020), U.S. Customs and Border Protection 
(CBP) under the Department of Homeland Security (DHS) requested that 
the Roosevelt Reservation portion of critical habitat in Unnamed 
Drainage and Pasture 9 Tank Subunit, Unnamed Drainage and Sheehy Spring 
Subunit, and Santa Cruz River Subunit within the Upper Santa Cruz River 
Subbasin Unit along the U.S./Mexico border be considered for exclusion 
under section 4(b)(2) of the Act for national security reasons and for 
being exempt from environmental regulations (DHS 2020, entire). The 
Roosevelt Reservation is a 60-ft (18-m) wide strip of land owned by the 
Federal Government along the U.S. side of the U.S./Mexico border in 
California, Arizona, and New Mexico.
    Our Response: We have reviewed CBP's request and have excluded the 
60-ft (18-m) area of the Roosevelt Reservation from this final critical 
habitat designation. Please see Exclusions (Exclusions Based on Impacts 
on National Security and Homeland Security), below, for our analysis of 
the CBP's request for exclusion for border units within the Roosevelt 
Reservation.
    Comment 25: In response to the original proposed critical habitat 
rule (78 FR 41550; July 10, 2013), a Federal agency stated that the 
portion of the Bill Williams River National Wildlife Refuge (NWR) 
included in the original proposed critical habitat does not provide 
habitat for the northern Mexican gartersnake and should be excluded 
from critical habitat. In response to the revised proposed critical 
habitat rule (85 FR 23608; April 28, 2020), the same agency requested 
exclusion of all critical habitat within the 914,200-acre Lower 
Colorado River Multi-Species Conservation Program (MSCP) planning area 
and off-site conservation areas. This includes the entire Bill Williams 
River Subunit in the Bill Williams River Subbasin Unit and the Lower 
Colorado River Unit. The agency stated that designating critical 
habitat in these two areas will create an unnecessary administrative 
burden, as actions to maintain the existing flood control and water 
delivery infrastructure would require additional consultation.
    Our Response: As a result of the Federal agency and other public 
comments on the original proposed critical habitat rule (78 FR 41550; 
July 10, 2013), we revised our rule set for determining the extent of 
the critical habitat for all critical habitat units in the revised 
proposed critical habitat rule (85 FR 23608; April 28, 2020). We 
determined that a stream, stream reach, or lentic water body was 
occupied at the time of listing for the gartersnake if it is within the 
historical range of the species, contains PBFs for the species 
(although the PBFs concerning prey availability and presence of 
nonnative predators are often in degraded condition), and has a last 
known record of occupancy in 1998 or later. We also delineated upstream 
and downstream critical habitat boundaries of a stream reach at 2.2 mi 
(3.6 km) from a known gartersnake observation record (see 85 FR 23608, 
April 28, 2020, Stream Length, pp. 85 FR 23619-23623). As a result of 
our review of occupancy and implementation of our rule set for stream 
length, the Bill Williams NWR is not included in this final critical 
habitat designation for the northern Mexican gartersnake.
    With respect to the request for excluding all areas from critical 
habitat within the 914,200-acre Lower Colorado River MSCP planning area 
and off-site conservation areas, the Lower Colorado River Unit and Bill 
Williams River Subunit have been excluded from this final designation 
based on conservation and management of some areas and thus are not 
addressed further here (see Exclusions, Private or Other Non-Federal 
Conservation Plans or Agreements and Partnerships, in General, below).
    Comment 26: The U.S. Small Business Administration and other 
commenters stated that we should consider the full scope of economic 
impacts to small entities and conduct a thorough Regulatory Flexibility 
Act analysis for critical habitat rules.
    Our Response: 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.), Federal agencies 
are only required to evaluate the potential incremental impacts of a 
rulemaking on directly regulated entities. The regulatory mechanism 
through which critical habitat protections are realized is section 7 of 
the Act, which requires Federal agencies, in consultation with the 
Service, to ensure that any action authorized, funded, or carried out 
by the agency is not likely to adversely modify critical habitat. 
Therefore, only Federal action agencies are directly subject to the 
specific regulatory requirement (avoiding destruction and adverse 
modification) imposed by critical habitat designation. Under these 
circumstances, it is our position that only Federal action agencies 
will be directly regulated by this designation. Therefore, because 
Federal agencies are not small entities, we certify that the proposed 
critical habitat rule will not have a significant economic impact on a 
substantial number of small entities (see Required Determinations, 
below). Thus, no regulatory flexibility analysis is required.
    Comment 27: The U.S. Small Business Administration commented that 
we should continue to engage with stakeholders early in the process and 
consider public comments.
    Our Response: Stakeholder engagement is important to balancing the 
long-term conservation of sensitive species and their habitats with the 
interests of stakeholders and the needs of the public. However, we are 
required to designate critical habitat for endangered and threatened 
species where we find the designation to be both prudent and 
determinable, as is the case with the northern Mexican gartersnake. In 
our development of critical habitat, we consider designating those 
areas occupied at the time of listing that contain the PBFs essential 
to the conservation of the species; this consideration is not based on 
land ownership, unless limiting the designation to only Federal lands 
would provide for the conservation of the species. In our original 
proposed critical habitat rule (78 FR 41550; July 10, 2013) and revised 
proposed critical habitat rule (85 FR 23608; April 28, 2020), we 
solicited information from the public regarding potential exclusions of 
areas based on management plans or other

[[Page 22525]]

conservation efforts including partnerships, as well as other 
information related to the species and potential impacts of designating 
critical habitat. This section of this final rule outlines our 
consideration of public comments received on both proposed rules.

State Comments

    Comment 28: Arizona Game and Fish Department (AGFD) commented that 
while they recognize the intent of our use of the term ``predatory 
sportfish,'' it is important to point out that all sportfish are 
predatory, as are all of our native fishes (i.e., they all prey on 
other organisms) and all interactions with sportfish are not negative. 
Further, not all sportfish or native species eat snakes.
    Our Response: In the revised proposed critical habitat rule (85 FR 
23608; April 28, 2020), we used the term ``predatory sportfish'' to 
explain how we delineated critical habitat: ``We identified and removed 
stream reaches where stocking or management of predatory sportfish is a 
priority and is conducted on a regular basis.'' In this document, we 
have removed the term ``predatory sportfish'' and replaced it with 
``nonnative fish species of the families Centrarchidae and 
Ictaluridae,'' so that it is consistent with the description of species 
used in the PBF related to nonnative aquatic predators.
    Comment 29: In response to our original proposed critical habitat 
rule (78 FR 41550; July 10, 2013), New Mexico Department of Game and 
Fish (NMDGF) commented that there are no post-2000 records for northern 
Mexican gartersnake on its properties within or adjacent to the Upper 
Gila River Subbasin Unit. These properties include the Red Rock 
Wildlife Management Area, which is a public fishing and recreation 
area; the Bill Evans Fishing Area, which is a public fishing site; and 
the Heart Bar Wildlife Area, which is a public fishing and recreation 
area.
    Our Response: In the revised proposed critical habitat rule (85 FR 
23608; April 28, 2020), we reviewed northern Mexican gartersnake 
occupancy to determine that a stream, stream reach, or lentic water 
body was occupied at the time of listing for the species if it is 
within the historical range of the species, contains PBFs for the 
species (although the PBFs concerning prey availability and presence of 
nonnative aquatic predators are often in degraded condition), and has a 
last known record of occupancy in 1998 or later. We also delineated 
upstream and downstream critical habitat boundaries of a stream reach 
at 2.2 mi (3.6 km) from a known northern Mexican gartersnake 
observation record (see 85 FR 23608, April 28, 2020, Stream Length, pp. 
85 FR 23619-23623). As a result of our review of occupancy and 
implementation of our rule set for stream length, the Gila River 
upstream of the Cliff-Gila Valley is not included in this final 
critical habitat designation for northern Mexican gartersnake; 
therefore, this designation does not contain any NMDGF properties.
    Comment 30: AGFD stated that the revised proposed critical habitat 
rule (85 FR 23608; April 28, 2020) is adequate for recovery of the 
northern Mexican gartersnake and that there are some areas that were 
occupied historically but from which the species has been extirpated. 
AGFD will continue the recovery efforts of reintroducing northern 
Mexican gartersnakes back into historically occupied habitats to 
contribute to recovery, regardless of their current occupied status or 
their critical habitat designation.
    Our Response: We will only consider unoccupied areas to be 
essential where a critical habitat designation limited to geographical 
areas occupied at the time of listing by the species would be 
inadequate to ensure the conservation of the species. In addition, for 
an unoccupied area to be considered essential, we must determine that 
there is a reasonable certainty both that the area will contribute to 
the conservation of the species and that the area contains one or more 
of the PBFs essential to the conservation of the species. At this point 
in time, we do not know what areas within the species' historical range 
will contribute to the conservation of the species. We appreciate the 
AGFD's partnership in the conservation and recovery of the northern 
Mexican gartersnake.
    Comment 31: Both AGFD and NMDGF stated concerns with the 
Application of the ``Adverse Modification'' Standard discussion in the 
revised proposed critical habitat rule (85 FR 23608, April 28, 2020, 
pp. 85 FR 23633-23634). AGFD pointed out that in the same discussion in 
the original proposed critical habitat rule (78 FR 41550, July 10, 
2013, pp. 78 FR 41576-41577), we discuss activities ``that may affect 
critical habitat, when carried out, funded, or authorized by a Federal 
agency should result in section 7 consultation,'' but in the 2020 
revised proposed critical habitat rule, we discuss the same activities 
but change the ``may affect critical habitat'' to ``likely to destroy 
or adversely modify critical habitat.'' AGFD recommended that in the 
final rule we use the same language in this discussion that we used in 
the 2013 original proposed critical habitat rule. AGFD went on to 
express concern that the 2020 revised proposed critical habitat rule 
essentially says that the effect has already been determined that any 
of these activities will destroy or adversely modify critical habitat.
    Our Response: In this rule's Application of the ``Adverse 
Modification'' Standard discussion, below, we include actions that 
could cause adverse effects to critical habitat, and not necessarily 
cause adverse modification to critical habitat, so that the public and 
section 7 practitioners can understand the types of actions we consider 
to have potential effects to designated critical habitat. The actual 
effects of a proposed action on designated critical habitat are 
dependent on many factors related to both the action being proposed and 
the project area. Therefore, we cannot determine and include thresholds 
for adverse modification in this rule. The appropriate process for that 
determination is the section 7 process, during which specific factors 
within the proposed action and conditions within the project area can 
be evaluated.
    Comment 32: Both AGFD and NMDGF stated concerns with some 
activities included in the analysis of the ``adverse modification'' 
standard because the activities are valuable to the restoration and 
recovery of native species even if they have temporary impacts to 
critical habitat. AGFD and NMDGF expressed concern about the time 
threshold we included in the Application of the ``Adverse 
Modification'' Standard discussion to determine that actions that would 
deliberately remove, diminish, or significantly alter the native or 
nonnative, soft-rayed fish component of the prey base within occupied 
habitat for a period of 7 days or longer would reach an adverse 
modification determination. AGFD recommended removing language that 
limits fish because the bulk of the northern Mexican gartersnake's diet 
consists of frogs and not fish. AGFD further explained that stream 
renovation projects are needed to ensure that a healthy native fish 
community exists and that gartersnakes will also thrive. Chemical 
renovations can take longer than 7 days for the chemicals to dissipate 
to levels that are safe for native fish, or multiple treatments may 
need to be conducted to be effective. NMDGF requested removing fish 
barriers, water diversion, fish habitat restoration, and chemical 
treatments from the Application of the ``Adverse Modification'' 
Standard discussion in the final rule.

[[Page 22526]]

    Our Response: In this rule's Application of the ``Adverse 
Modification'' Standard discussion, below, we acknowledge that some 
conservation actions will have short-term adverse effects but will 
ultimately result in long-term benefits to gartersnake critical 
habitat. The actual effects of a proposed action of designated critical 
habitat are dependent on many factors related to both the action being 
proposed and the project area. The appropriate process for that 
determination is the section 7 process, during which specific factors 
within the proposed action and conditions within the project area can 
be evaluated. We understand that the diet of the northern Mexican 
gartersnake is widely variable. Therefore, paragraph (7) under 
Application of the ``Adverse Modification'' Standard in the 2020 
revised proposed rule specifically only pertained to narrow-headed 
gartersnakes, which are no longer included in this rule. Therefore, we 
removed paragraph (7) from this final rule.
    Comment 33: AGFD recommended excluding private and non-Federal 
lands enrolled in Chiricahua leopard frog (Rana chiricahuensis) or Gila 
topminnow (Poeciliopsis occidentalis) and desert pupfish (Cyprinodon 
macularius) safe harbor agreements from northern Mexican gartersnake 
critical habitat. AGFD stated that these private landowners are 
important conservation partners that are already contributing to native 
aquatic species conservation and recovery that can benefit the northern 
Mexican gartersnake. AGFD further stated that AGFD is committed to 
advancing recovery of this species on its properties that we also 
considered for exclusion, including Bubbling Ponds and Page Springs 
fish hatcheries adjacent to Oak Creek and Planet Ranch property on the 
Bill Williams River.
    Our Response: Based on our consideration of proposed exclusions and 
land management information received from AGFD, we found that Bubbling 
Ponds and Page Springs fish hatcheries, Planet Ranch, and private and 
non-Federal lands enrolled in Chiricahua leopard frog or Gila topminnow 
and desert pupfish safe harbor agreements are all managed in ways that 
promote conservation and restoration of habitat that is beneficial to 
the northern Mexican gartersnake. Additionally, the exclusion of these 
areas is likely to be beneficial in maintaining working partnerships 
with AGFD and private landowners. As a result of our exclusion/
inclusion benefits analysis, we have determined it appropriate to 
exclude these areas from the designation. See Exclusions, Private or 
Other Non-Federal Conservation Plans or Agreements and Partnerships, in 
General, below.
    Comment 34: New Mexico Department of Agriculture (NMDA) expressed 
support for excluding private lands owned by Freeport-McMoran within 
the U-Bar Ranch property along Duck Creek and the Gila River from 
critical habitat for the northern Mexican gartersnake. NMDA stated that 
voluntary conservation planning and actions on the property are 
adequate for conserving the gartersnake.
    Our Response: Consideration of possible exclusions from critical 
habitat are in our discretion and generally follow our Policy Regarding 
Implementation of Section 4(b)(2) of the Endangered Species Act (81 FR 
7226; February 11, 2016). With respect to the Upper Gila River Subbasin 
Unit for the northern Mexican gartersnake, we determined that that the 
benefits of exclusion do not outweigh the benefits of inclusion. See 
Exclusions, Private or Other Non-Federal Conservation Plans or 
Agreements and Partnerships, in General, below, for our discussion of 
private lands owned by Freeport-McMoran.
    Comment 35: NMDA commented that we should reconsider the value of 
critical habitat if we cannot identify a case in which consultation 
would require additional conservation measures.
    Our Response: We are required to designate critical habitat for 
listed species if we find that the designation is prudent and 
determinable, as we did for the northern Mexican gartersnake, 
regardless of whether we can foresee project modifications that may be 
required.
    Comment 36: NMDGF requested that we exclude developed, humanmade 
fish migration barrier structures from critical habitat because 
including them will hinder conservation efforts for native fish and 
snakes by delaying construction and maintenance efforts of these 
structures.
    Our Response: When determining critical habitat boundaries, we made 
efforts to avoid including developed areas such as lands covered by 
buildings, pavement, and other structures because such lands lack the 
PBFs. The humanmade fish barriers are in-water structures that fall 
within the boundaries of habitats used by northern Mexican 
gartersnakes. Because of this and the limitations of map scale, any 
developed lands, such as constructed fish barriers, left inside 
critical habitat boundaries are not considered critical habitat because 
they lack the necessary PBFs. However, a Federal action involving the 
fish barriers, such as maintenance, may trigger section 7 consultation 
with respect to critical habitat or the prohibition of adverse 
modification if the specific action would affect the PBFs in 
surrounding critical habitat.
    Comment 37: The New Mexico Interstate Stream Commission commented 
that the Service must complete an environmental impact statement (EIS) 
for designating critical habitat.
    Our Response: NEPA dictates that the Service determine the 
appropriate level of NEPA review (40 CFR 1501.3). The Service completed 
an environmental assessment (EA) to determine whether an EIS was 
necessary or if a finding of no significant impact (FONSI) could be 
determined. The Service released a draft EA that was available for 
public comment from December 18, 2020, to January 16, 2021, on the 
Arizona Ecological Services Field Office website; we received five 
comments on the draft EA. After addressing the public comments 
received, the Service finalized the EA and found that designating 
critical habitat for the northern Mexican gartersnake would not result 
in significant impacts to the environment. A copy of the final EA and 
FONSI is available at https://www.regulations.gov at Docket No. FWS-R2-
ES-2020-0011. Therefore, the appropriate NEPA process was completed, 
and an EIS is not required.

Tribal Comments

    In accordance with our requirements to coordinate with Tribes on a 
government-to-government basis, we solicited information from the 
following 17 Tribes regarding the designation of critical habitat for 
the northern Mexican gartersnake: Chemehuevi Indian Tribe, Cocopah 
Indian Tribe, Colorado River Indian Tribes, Fort McDowell Yavapai 
Nation, Fort Mojave Indian Tribe, Gila River Indian Community, Hopi 
Tribe, Hualapai Tribe, Mescalero Apache Tribe, Pascua Yaqui Tribe, Salt 
River Pima-Maricopa Indian Community, San Carlos Apache Tribe, Tohono 
O'odham Nation, Tonto Apache Tribe, White Mountain Apache Tribe, 
Yavapai-Apache Nation, and Yavapai-Prescott Indian Tribe. While all of 
these tribes may have interest in lands included in proposed critical 
habitat for northern Mexican gartersnake, the only Tribal land included 
in the revised proposed critical habitat designation was land owned by 
the Yavapai-Apache Nation. We also met with representatives of the Gila 
River Indian Community and

[[Page 22527]]

Yavapai-Apache Nation to discuss the proposed designation. The Gila 
River Indian Community expressed concern regarding potential effects 
that critical habitat may have on water allocation. The Yavapai-Apache 
provided revisions to ownership of their lands, expressed concern of 
economic impacts from designated critical habitat, and requested the 
Yavapai-Apache Nation be excluded from the designation.
    Comment 38: The Gila River Indian Community expressed concern about 
how designation of critical habitat for the northern Mexican 
gartersnake on the Bill Williams River might affect their Central 
Arizona Project water allocation, which is diverted downstream along 
the Colorado River.
    Our Response: For critical habitat off Tribal lands, we do not 
anticipate the Central Arizona Project water allocation to Gila River 
Indian Community to be impacted by this designation of critical habitat 
because we are excluding the Bill Williams River from critical habitat 
based on the Lower Colorado River MSCP Habitat Conservation Plan (LCR 
MSCP 2004, entire). In addition, the economic analysis outlines the 
substantial baseline protections currently afforded the northern 
Mexican gartersnake throughout the designation and has determined that 
the impacts of critical habitat will be minimal (See Exclusions, 
Private or Other Non-Federal Conservation Plans Related to Permits 
Under Section 10 of the Act).
    Comment 39: The Yavapai-Apache Nation requested that their lands be 
excluded from the designation of critical habitat based on their 
management and conservation of northern Mexican gartersnake habitat, 
because the designation would infringe on Tribal sovereignty and 
directly interfere with Tribal self-government, and because the 
designation would have a disproportionate economic impact on the 
Yavapai-Apache Nation. The Yavapai-Apache Nation further stated that 
our draft economic analysis failed to analyze the unique economic 
impacts of the potential designation of Tribal land and requested us to 
revise the proposed rule to consider the types of Tribal economic 
activities likely to occur and likely to be affected by the critical 
habitat designation.
    Our Response: We have reviewed the request for exclusion from the 
Yavapai-Apache Nation and excluded all Tribal lands from the final 
designation under section 4(b)(2) of the Act (See Exclusions, below). 
Because all Tribal lands have been excluded from this final critical 
habitat designation, any required conservation activities on Tribal 
lands will be based solely on the listing of the northern Mexican 
gartersnake, not critical habitat on Tribal lands. The economic 
analysis outlines the substantial baseline protections currently 
afforded to the northern Mexican gartersnake throughout the designation 
and has determined that the impacts of critical habitat will be 
minimal.

Public Comments

    Comment 40: Several commenters stated their view that designating 
critical habitat for the northern Mexican gartersnake is not prudent 
because disclosing where individuals can be found would increase 
illegal taking of the species. Several commenters also stated that 
designating critical habitat is not prudent because most of the stream 
reaches included in the proposed designation have already been 
designated as critical habitat for other listed species. Other 
commenters stated that designating critical habitat for the northern 
Mexican gartersnake is not prudent because there are insufficient 
populations in the United States and the species primarily occurs in 
Mexico.
    Our Response: As discussed in the final listing rule (79 FR 38678; 
July 8, 2014), there is no imminent threat of take attributed to 
illegal collection for this species, and identification and mapping of 
critical habitat is not expected to initiate any such threat.
    Additionally, criteria used to determine if designation of critical 
habitat for the northern Mexican gartersnake is prudent pursuant to our 
regulations, 50 CFR 424.12(a)(1), may differ from criteria used to 
designate critical habitat for other listed species. 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 
we have identified for which this designation of critical habitat would 
not be prudent, we have determined that the designation of critical 
habitat is prudent for the species.
    In development of the revised proposed critical habitat rule (85 FR 
23608; April 28, 2020), we used the best scientific and commercial 
information available. In that revised proposed rule, we reassessed 
occupancy at the time of listing by reviewing all records for the 
northern Mexican gartersnake that we used in our original proposed 
critical habitat rule (78 FR 41550; July 10, 2013) in conjunction with 
expected survivorship of the species. We also used subsequent surveys 
in areas that had no detection of the species, and reviewed changes in 
threats that may have prevented occupancy at time of listing. We 
determined that the best available information reflecting occupancy at 
the time of listing supports a more recent date of records since 1998, 
which includes areas within the United States (see Criteria Used To 
Identify Critical Habitat). This and other information represent the 
best scientific and commercial data available and led us to determine 
areas of occupancy at the time of listing. Our review of the best 
scientific and commercial data available support the conclusion that 
the designation of critical habitat is prudent and determinable for the 
northern Mexican gartersnake.
    Comment 41: Multiple commenters stated that the available data are 
insufficient to identify the species' needs and impacts from wildfires 
in order to determine areas for critical habitat.
    Our Response: In development of the revised proposed critical 
habitat rule (85 FR 23608; April 28, 2020), we used the best scientific 
and commercial information available. We have sufficient information to 
determine the areas essential to the conservation of the species (i.e., 
critical habitat) as documented in the 2020 revised proposed rule. In 
addition to reviewing gartersnake-specific survey reports, we also 
focused on survey reports and heritage data for fish and amphibians 
from State wildlife agencies, as they captured important data on the 
existing community ecology that affects the status of the northern 
Mexican gartersnake. In addition to species data sources, we used 
publicly available geospatial datasets depicting water bodies, stream 
flow, vegetation type, and elevation to identify critical habitat 
areas. We reviewed the available information pertaining to the 
biological needs of the species and habitat characteristics where the 
species is 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 northern 
Mexican gartersnake.
    As discussed in the final listing rule (79 FR 38678; July 8, 2014), 
landscape-scale wildfires have impacted the species and its habitats. 
We understand that wildfires can cause sedimentation that can reduce 
water quality and prey availability for the northern Mexican 
gartersnake, and we included areas in critical habitat that had records 
of the species from 1998 to 2019, but that may need special management 
to maintain PBFs 1 and 3 as a result of recent or future wildfires.
    Comment 42: Two commenters stated that ephemeral reaches of 
streams, as

[[Page 22528]]

well as intermittent streams, can provide habitat for northern Mexican 
gartersnakes. Gartersnakes use them on a seasonal basis, and they may 
have lower densities of nonnative aquatic species. Therefore, they 
should be included in the critical habitat designation.
    Our Response: In development of the revised proposed critical 
habitat rule (85 FR 23608; April 28, 2020), we clarified the spectrum 
of stream flow regimes that provide stream habitat for the northern 
Mexican gartersnake based on scientifically accepted stream flow 
definitions (Levick et al. 2008, p. 6; Stromberg et al. 2009, p. 330). 
We define a ``spatially intermittent'' stream as 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 has 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).
    We include spatially intermittent streams, as well as entirely 
ephemeral streams, in critical habitat for the northern Mexican 
gartersnake. We explain that 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 PBF 1 in streams 
with spatially intermittent flow if such reaches are between perennial 
sections of a stream that were occupied at the time of listing. We also 
include entirely ephemeral channels in critical habitat as PBF 7 if 
they connect perennial or spatially intermittent perennial streams to 
lentic wetlands in southern Arizona where water resources are limited. 
Streams that have ephemeral flow over their entire length 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 that were occupied at the 
time of listing due to the propensity for higher prey densities where 
water conveys.
    Comment 43: One commenter stated that we should maintain a 
shoreline component as part of the PBFs that identify critical habitat, 
and we should include human-modified features such as stock tanks. They 
stated their view that eliminating the shoreline component could result 
in improperly leaving out habitats that northern Mexican gartersnakes 
use because they span the transition between upland riparian and in-
stream habitats.
    Our Response: We removed the term ``shoreline habitat'' because 
shorelines fluctuate. Instead, we are focusing on the substrate. The 
key to the original primary constituent element for ``shoreline 
habitat'' was the substrate itself, not the fluctuating shoreline. The 
revised PBFs 1 and 6 focus on the organic and natural inorganic 
structural features important to the northern Mexican gartersnake that 
fall within the stream channel or lentic water body and still encompass 
the transition between in-stream habitat and riparian habitat.
    Constructed ponds, including stock tanks, are still included in 
critical habitat for the northern Mexican gartersnake if they are 
within the historical range of the species, contain all PBFs for the 
species (although the PBFs concerning prey availability and presence of 
nonnative aquatic predators are often in degraded condition), and have 
a last known record in 1998 or later. Please see our response to 
Comment 7, above, for a summary of these sites.
    Comment 44: One commenter stated that there are no currently 
available data on the effects of pollutants on the recruitment of 
northern Mexican gartersnakes; therefore, including PBF 1D for the 
northern Mexican gartersnake, which concerns water quality with low to 
zero levels of pollutants, is not using the best available science.
    Our Response: We do not have specific data related to effects of 
water pollutants on the recruitment of the northern Mexican 
gartersnake. Therefore, in this rule, we have amended the relevant PBF 
to read as follows: ``Water quality that meets or exceeds applicable 
State surface water quality standards'' (For more information, see 
Physical or Biological Features Essential to the Conservation of the 
Species, below). Although water quality is not identified as a threat 
to the northern Mexican gartersnake, it is a threat to its prey base. 
Water quality that is absent of pollutants or has low levels of 
pollutants is needed to support the aquatic prey base for the northern 
Mexican gartersnake. State water quality standards identify levels of 
pollutants required to maintain communities of organisms that have a 
taxa richness, species composition, and functional organization that 
includes the aquatic prey base of the northern Mexican gartersnake.
    Comment 45: We received a variety of comments regarding the 
definition of the lateral extent of critical habitat for the northern 
Mexican gartersnake in the revised proposed critical habitat rule (85 
FR 23608; April 28, 2020). Several commenters supported the use of PBFs 
to define the lateral extent of critical habitat for the northern 
Mexican gartersnakes in the 2020 revised proposed rule instead of using 
an arbitrary 600-ft straight-line distance from ``bankfull width'' that 
we used in the original proposed critical habitat rule (78 FR 41550; 
July 10, 2013). Comments suggested limiting the riparian zone defined 
in PBFs by a straight-line distance from water features based on the 
maximum distance the species has been recorded from water to define 
lateral extent of the critical habitat for the northern Mexican 
gartersnake. Another commenter stated by removing the 600-ft (183-m) 
lateral extent from the bankfull line of streams to only include 
riparian areas does not take into account the type of habitat that the 
gartersnake uses for dispersal, brumation, and foraging. Because 
northern Mexican gartersnakes may move 0.85 mi (1.2 km) overland during 
monsoon season, this distance should be incorporated as a minimum 
lateral distance on both sides of stream bankfull stage. Additionally, 
another commenter suggested using as large of a buffer as possible of 
terrestrial habitat for northern Mexican gartersnakes due to the 
variety of environmental conditions found within remaining populations 
of the species.
    Our Response: In the revised proposed critical habitat rule (85 FR 
23608; April 28, 2020), we explained that although northern Mexican 
gartersnakes have been found in a variety of vegetation types within 
the 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 the northern Mexican gartersnake, and studies have not been 
conducted throughout its entire range. The width of critical habitat 
for the 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

[[Page 22529]]

includes some terrestrial components, delineating these areas rather 
than delineating a set distance from the stream channel better captures 
the underlying characteristics of terrestrial habitat for the northern 
Mexican gartersnake. All of these areas are within the known distance 
northern Mexican gartersnakes have been recorded from water (85 FR 
23608, April 28, 2020, see ``Terrestrial Space Along Streams'' on pp. 
85 FR 23614-23616).
    As explained in the revised proposed critical habitat rule (85 FR 
23608; April 28, 2020), terrestrial habitat adjacent to the stream 
channel that includes riparian vegetation, small mammal burrows, 
boulder fields, rock crevices, and downed woody debris provides areas 
for thermoregulation, shelter, foraging opportunities, brumation, and 
protection from predators. This terrestrial habitat as defined in PBF 
1C is not meant to provide dispersal habitat. Dispersal habitat is 
captured by stream lengths included in critical habitat and includes 
all known maximum longitudinal lengths of home ranges for the species 
(see 85 FR 23608, April 28, 2020, Stream Length, pp. 85 FR 23619-
23623).
    As defined, PBF 1C captures all known locations of northern Mexican 
gartersnakes outside of water in streams that are not ephemeral. The 
northern Mexican gartersnake found 3,937 ft (1,200 m) straight line 
distance from a perennial water source during monsoon season mentioned 
by the commenter was located in the floodplain of an intermittent 
channel. This channel is included in critical habitat. In the revised 
proposed critical habitat rule (85 FR 23608; April 28, 2020), we also 
explain that northern Mexican gartersnakes have not been detected in 
overland areas outside of stream floodplains, and while they likely use 
these areas while moving between habitats, specific habitat attributes 
in these areas that are essential to the snakes have not been 
identified (see 85 FR 23608, April 28, 2020, ``Overland Areas for 
Northern Mexican Gartersnake,'' pp. 85 FR 23616-23617).
    Comment 46: One commenter stated that we should determine occupancy 
at the time of listing (2014) from 1980 to today, as was done in the 
original proposed critical habitat rule (78 FR 41550; July 10, 2013), 
rather than 1998 to today, which was done in the revised proposed 
critical habitat rule (85 FR 23608; April 28, 2020). Repeated 
discoveries of populations of northern Mexican gartersnakes that were 
thought to be lost or were unknown indicates using 1980 as the earliest 
year to determine occupancy at the time of listing is therefore more 
appropriate. A lack of documentation of occupancy reflects incomplete 
survey effort than true non-occupancy.
    Our Response: As explained extensively in the revised proposed 
critical habitat rule (85 FR 23608; April 28, 2020), although it is 
possible that northern Mexican gartersnakes are still extant in areas 
where they were detected only during the 1980s or prior, we have 
determined that the best available information reflecting occupancy at 
the time of listing supports a more recent date of records since 1998.
    Based on our analyses in the listing rule (79 FR 38678; July 8, 
2014), we conclude that there has been a significant decline in the 
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 likely disappeared. To determine where 
loss of populations was most likely, we reviewed survey efforts after 
1989 that did not detect northern Mexican gartersnakes in some of the 
areas included in the original proposed critical habitat rule (78 FR 
41550; July 10, 2013). All of the surveys conducted since the 1980s 
that were considered included at least the same amount or more search 
effort than those surveys that detected the species in the 1980s. Since 
1998, researchers have detected northern Mexican gartersnakes in many 
areas where they were found in the 1980s, and this includes some areas 
where they had not been found prior to the 2014 final listing rule (see 
Criteria Used To Identify Critical Habitat). An increase in a species' 
detection information often occurs as a result of a species being 
listed as an endangered or threatened species, due increased survey 
effort spurred by to consultation requirements under section 7, as well 
as recovery actions or State coordination efforts under section 6, of 
the Act. Additional occupancy information is also sometimes obtained as 
a result of academic research on a species. Because these areas were 
occupied at the time of listing, we have included these areas in 
critical habitat (see Criteria Used To Identify Critical Habitat).
    Comment 47: Multiple commenters suggested we consider using longer 
stream lengths to determine gartersnake occupancy. A species might use 
a stream's entire wetted length, rather than just certain reaches, and 
the northern Mexican gartersnake had previously been connected in large 
stretches of river that are part of high-quality, contiguous riparian 
habitat.
    Our Response: In the original proposed critical habitat rule (78 FR 
41550; July 10, 2013), we included the entire stream length of a 
perennial or intermittent stream if it had at least one known record 
for the northern Mexican gartersnake and at least one record of a 
native prey species present. In doing so, we included many areas that 
were not within the known range of the species, did not have records of 
the species, or did not contain the PBFs. For the revised proposed 
critical habitat rule (85 FR 23608; April 28, 2020), we reevaluated all 
streams based on comments and reports on water availability, prey 
availability, and surveys to determine which reaches contain the PBFs.
    In the revised proposed critical habitat rule (85 FR 23608; April 
28, 2020) and this final rule, critical habitat includes occupied 
streams or stream reaches within the historical range with survey 
records of the northern Mexican gartersnake dated from 1998 to 2019 
that have retained the necessary PBFs that will allow for the 
maintenance and expansion of existing populations. We placed outer 
boundaries on the portion of a stream that is considered occupied. We 
identified the most upstream and downstream records of the northern 
Mexican gartersnake along each continuous stream reach determined by 
presence of PBFs, and we extended the stream reach to include a 
dispersal distance of 2.2 mi (3.6 km). After identifying the stream 
reaches that meet the above parameters, we then connected those reaches 
with areas 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.
    Comment 48: One commenter stated that critical habitat should 
include areas where native prey is limited and/or where nonnative 
species are present, for both occupied and unoccupied critical habitat, 
because northern Mexican gartersnakes can survive with low natural prey 
populations and the presence of nonnatives. Another commenter stated 
that we should not exclude stream reaches where other Federal, State, 
Tribal, or private entities may stock predatory sportfish regularly or 
as needed, because recovery of listed species should be prioritized in 
those areas.
    Our Response: This critical habitat designation includes many areas 
that are occupied by the northern Mexican

[[Page 22530]]

gartersnake, where native prey is limited, and where nonnative species 
that prey on gartersnakes are present. Please see Final Critical 
Habitat Designation, below, for unit descriptions, including why units 
meet the definition of critical habitat for the northern Mexican 
gartersnake.
    Areas subject to stocking of predatory sportfish are not occupied 
by the northern Mexican gartersnake. We have not identified any 
unoccupied areas that meet the definition of critical habitat. Please 
see our response to Comment 50, below.
    Comment 49: One commenter stated that the gartersnake is currently 
distributed in stream reaches that are dominated by nonnative 
vertebrates and crayfish; therefore, the best available science does 
not support excluding areas as critical habitat based on an abundance 
of nonnative aquatic predators.
    Our Response: We acknowledge that the northern Mexican gartersnake 
is extant in some areas that have abundant nonnative aquatic predators, 
some of which also are prey for gartersnakes, so the presence of 
nonnative aquatic predators is not always indicative of absence of the 
gartersnake (Emmons and Nowak 2016a, p. 17; Emmons et al. 2016, entire; 
Nowak et al. 2016, pp. 6-8; Lashway 2015, p. 5). Although we 
acknowledge that we do not have a thorough understanding of northern 
Mexican gartersnake population dynamics in the presence of nonnative 
aquatic predators as compared to other areas (Burger 2016, pp. 13-15), 
areas with aquatic predators that are currently known to support 
gartersnake populations are included in critical habitat. However, we 
think it is reasonable to conclude based on the best scientific data 
currently available that streams, stream reaches, and lentic water 
bodies were not occupied at the time of listing if they have only 
northern Mexican 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.
    Comment 50: Several commenters stated that designation of 
unoccupied critical habitat is needed for the northern Mexican 
gartersnake. Specifically, habitat fragmentation, small populations, 
and genetics threaten extinction and thus make unoccupied critical 
habitat essential. Designating unoccupied habitat is also important to 
restore connectivity among populations, and the Service should also 
consider reintroduction of the gartersnake to unoccupied areas.
    Our Response: As discussed in the final listing rule (79 FR 38678; 
July 8, 2014), continued population decline and extirpations threaten 
the genetic representation of the northern Mexican gartersnake because 
some populations have become disconnected and isolated from neighboring 
populations. This can lead to a reduction in the species' redundancy 
and resiliency when isolated, small populations are at increased 
vulnerability to the effects of threats and stochastic events, without 
a means for natural recolonization.
    As required by section 4(b) of the Act, we use the best scientific 
and commercial data available in determining areas within the 
geographical area occupied at the time of listing that contain the 
features essential to the conservation of a species and may require 
special management considerations or protection, and areas outside of 
the geographical area occupied at the time of listing that are 
essential for the conservation of the species. However, based on the 
best scientific data available we have not identified any unoccupied 
areas that that are essential for the conservation of the species. 
While we know the conservation of the species will depend on increasing 
the number and distribution of populations of the northern Mexican 
gartersnake, not all of its historical range will be essential to the 
conservation of the species, and we are unable to delineate any 
specific unoccupied areas that are essential at this time. A number of 
areas within these watersheds continue to contain some or could develop 
many of the physical and biological features upon which the species 
depends, although the best available scientific data indicate all these 
areas are currently unoccupied. Some areas in these watersheds with the 
potential to support the physical and biological features are likely 
important to the overall conservation strategy for the northern Mexican 
gartersnake. Any specific areas essential to the species' conservation 
within these watersheds are not currently identifiable due to our 
limited understanding regarding the ideal configuration for the 
development of future habitat to support the northern Mexican 
gartersnake's persistence, the ideal size, number, and configuration of 
these habitats. Although there may be a future need to expand the area 
occupied by the species to reach recovery, these areas have not been 
identified in recovery planning for the northern Mexican gartersnake. 
Therefore, we cannot identify unoccupied areas that are currently 
essential to the conservation of the species that should be designated 
as critical habitat.
    Comment 51: One commenter stated that only including areas occupied 
by the species at the time of listing does not allow for naturally 
occurring range expansion into other areas with suitable habitat that 
already exist or are newly created from habitat restoration activities.
    Our Response: Limiting critical habitat to areas occupied by a 
species at the time of listing does not prevent a species from 
naturally expanding into other areas. We designate those areas occupied 
at the time of listing that contain the PBFs and need special 
management considerations or protection, and any other unoccupied areas 
that are essential to conservation of the species. Based on the best 
scientific data available we have not identified any unoccupied areas 
that that are essential for the conservation of the species. Please see 
our response to Comment 50, above.
    Comment 52: One commenter stated that the northern Mexican 
gartersnake likely exists in the Verde River downstream of Beasley Flat 
from a sighting made by The Nature Conservancy, and that area should 
have been included the revised proposed critical habitat rule (85 FR 
23608; April 28, 2020).
    Our Response: We could not confirm the sighting made by The Nature 
Conservancy, and are not aware of any other confirmed recorded 
sightings at the time of listing that document northern Mexican 
gartersnakes downstream of Beasley Flat, so this site is not included 
in this critical habitat designation because it does not meet our 
definition of an occupied reach for the species. We are aware of a 2019 
confirmed record for northern Mexican gartersnake upstream of Beasley 
Flat, and this site is included in this critical habitat designation.
    Comment 53: One commenter stated that we should add Scotia Canyon, 
Garden Canyon, and Huachuca Canyon in the Huachuca Mountains to 
critical habitat for the northern Mexican gartersnake based on a record 
of the species in the upper portion of Scotia Canyon near the Fort 
Huachuca boundary. The commenter stated that Garden and Huachuca 
Canyons have PBFs 1, 2, and 3; that Fort Huachuca's Environmental and 
Natural Resources Division reduces crayfish at an acceptable level for 
PBF 4; and that lack of detections in these areas is likely due to 
absence of targeted survey efforts.
    Our Response: Scotia Canyon was included in the original proposed 
critical habitat rule (78 FR 41550; July

[[Page 22531]]

10, 2013) and the revised proposed critical habitat rule (85 FR 23608; 
April 28, 2020), and is included in this final rule in the Upper Santa 
Cruz River Subbasin Unit of critical habitat for the northern Mexican 
gartersnake. We are not aware of any records that document northern 
Mexican gartersnakes in Garden Canyon or Huachuca Canyon, so these 
sites are not included in our critical habitat designation because they 
do not meet our definition of an occupied reach for the species. Please 
also see our response to Comment 50, above.
    Comment 54: In response to the original proposed critical habitat 
rule (78 FR 41550; July 10, 2013), one commenter stated that we should 
consider including unoccupied habitat for the northern Mexican 
gartersnake in the San Francisco River, Sycamore Canyon near Buenos 
Aires NWR, Davidson Canyon in the Cienega Creek watershed, and Leslie 
Canyon NWR.
    Our Response: As explained above in our responses to Comments 51 
and 52, we have not identified unoccupied areas that are essential to 
the conservation of the species and that should be designated as 
critical habitat. In addition, we are not aware of any historical 
records for the northern Mexican gartersnake in these areas.
    Comment 55: Several commenters stated that our use of historical 
data spanning two decades to characterize areas of critical habitat 
that are ``occupied at the time of listing'' for purposes of a 
designation under section 3(5)(A)(i) of the Act is not synonymous with 
a determination that habitat is currently occupied for purposes of a 
``take'' analysis under sections 7 and 10 of the Act, and that the 
distinction between these two concepts needs to be fully acknowledged 
and its implications explained in the final rule.
    Our Response: We designate areas as critical habitat that are 
occupied at the time of listing if those areas have one or more of the 
PBFs present that are essential to the conservation of the species and 
may requires special management considerations or protection (81 FR 
7413). In the 2020 revised proposed critical habitat rule (85 FR 23608; 
April 28, 2020), we estimated that maximum longevity for northern 
Mexican gartersnake is 15 years, so 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. We also included 
northern Mexican gartersnake detections after the species was listed 
because these areas were likely occupied at the time of listing in 
2014. As a result, there are areas in this final designation of 
critical habitat with records of gartersnakes from 1998 through 2019.
    Under section 7 of the Act, Federal agencies are required to 
consult with the Service to ensure that the actions they carry out, 
fund, or authorize are not likely to jeopardize the continued existence 
of the species, or destroy or adversely modify critical habitat. For a 
jeopardy or ``take'' analysis, we analyze effects to a species if the 
species is present in the action area during the time of the action. 
For an adverse modification analysis, we analyze effects to critical 
habitat if critical habitat for a species is present in the action 
area. Therefore, defining where a species is occupied at the time of 
listing for critical habitat designation is not synonymous with a 
determination that an area is currently occupied for purposes of a 
jeopardy analysis under section 7 of the Act or a ``take'' analysis 
under section 10 of the Act. Those determinations depend on the best 
available information at the time of the analysis, and the likely 
effects and likelihood of take depend on the action under 
consideration.
    Comment 56: One commenter stated that livestock grazing would have 
a significant impact on habitat for the northern Mexican gartersnake 
and that special management considerations and protection would benefit 
the species.
    Our Response: As discussed in the final listing rule (79 FR 38678; 
July 8, 2014), livestock grazing is a largely managed land use, and, 
where closely managed, it is not likely to pose significant threats to 
the northern Mexican gartersnake. In cases where poor livestock 
management results in fence lines in persistent disrepair, allowing 
unmanaged livestock access to occupied habitat, adverse effects from 
loss of vegetative cover, sedimentation, or alteration of prey base may 
result. Activities that significantly reduce cover or increase 
sedimentation are addressed below under Application of the ``Adverse 
Modification'' Standard and Special Management Considerations or 
Protection.
    Comment 57: One commenter requested that we include a statement 
regarding the application of the ``adverse modification'' standard that 
existing activities are part of the baseline and, therefore, are 
presumed not to adversely modify critical habitat. The commenter 
further stated that we should affirmatively state that ``adverse 
modification'' will not be found where the agency, working with the 
project proponent, demonstrates that it will offset impacts to critical 
habitat through the protection and maintenance of alternative habitat 
within the designation, which is of comparable quality to the habitat 
that would be lost.
    Our Response: Section 7 of the Act requires us to ensure that any 
action authorized, funded, or carried out by the agency is not likely 
to destroy or adversely modify critical habitat. Therefore, only 
Federal action agencies are directly subject to the specific regulatory 
requirement (avoiding destruction and adverse modification) imposed by 
critical habitat designation. This adverse modification standard does 
not change whether the activities are ongoing or new, and we do not 
have a mechanism to determine that existing activities are presumed to 
not destroy or adversely modify critical habitat. Any new activity 
under section 7 will require evaluation of the effects of the action 
based on the specifics of the location of the project and its effects.
    Comment 58: Freeport-McMoRan Tyrone Inc. and Pacific Western Land 
Company (collectively known as ``FMC'') stated that lands owned by FMC 
along the upper Gila River and Duck Creek in the Gila/Cliff Valley, 
Grant County, New Mexico, should be excluded from critical habitat 
pursuant to section 4(b)(2) of the Act based on their habitat 
management plans for spikedace (Meda fulgida) and loach minnow 
(Rhinichthys cobitis) and for southwestern willow flycatcher (Empidonax 
traillii extimus). FMC further stated that these management plans 
protect and support habitat for aquatic and riparian species, including 
native prey species for the northern Mexican gartersnake.
    Our Response: In response to FMC's request to exclude their lands 
along the upper Gila River and Duck Creek based on FMC habitat 
management plans for spikedace and loach minnow and for grazing 
management actions benefiting southwestern willow flycatcher, we have 
determined that the exclusion would not be appropriate for several 
reasons. Although we commend FMC for investing time, effort, and 
funding for conservation on the Gila River, the habitat conservation 
efforts to date that have been implemented are focused on management 
actions for spikedace, loach minnow, and southwestern willow flycatcher 
along the Gila River. There are no conservation efforts specific to the 
northern Mexican gartersnake included in these plans, and Duck Creek is 
not part of their planning area. In identifying critical habitat for 
the northern Mexican gartersnake, we identified those areas that meet 
the definition of critical habitat under

[[Page 22532]]

section 3(5)(A) of the Act. Although management actions for one listed 
species may overlap other species' habitat or be mutually beneficial to 
multiple listed species, the physical and biological features in 
occupied habitat for the northern Mexican gartersnake differ from the 
physical and biological features identified for spikedace, loach 
minnow, and southwestern willow flycatcher. As a result, excluding 
these areas based on management for listed fish and bird species does 
not meet our criteria for exclusion. See Exclusions, Private or Other 
Non-Federal Conservation Plans or Agreements and Partnerships, in 
General, below.
    Comment 59: Permittees of the Service-approved section 10 Salt 
River Project (SRP) Roosevelt Habitat Conservation Plan (HCP) requested 
that areas below the Modified Roosevelt Dam conservation space, or full 
pool elevation of 2,151 ft (656 m) (Roosevelt Lake Conservation Storage 
space), be removed or excluded from critical habitat for the northern 
Mexican gartersnake. Effects to northern Mexican gartersnakes within 
the Roosevelt Lake Conservation Storage space will be addressed in an 
upcoming modification to the SRP Roosevelt HCP that should be completed 
by December 2021, and this area does not contain PBFs 2 and 4 most of 
the time because of inundation that is entirely different from the 
natural periodic flooding that one would observe in a stream exhibiting 
a natural flow regime. The commenters further stated that any habitat 
that forms during interim periods is temporary and does not qualify as 
habitat essential to the conservation of the species.
    The commenters also requested that the Roosevelt Lake flood control 
space (2,151 to 2,175 ft (656 to 663 m) elevation), which is under the 
jurisdiction of the U.S. Army Corps of Engineers (Corps), be excluded 
from critical habitat for the northern Mexican gartersnake. The 
commenters stated that this area will continue to be subject to 
minimization requirements under section 7 and impacts to the northern 
Mexican gartersnake would likely be quantified in terms of habitat 
loss. Therefore, designation of the area as critical habitat provides 
little, if any, additional benefit for species conservation.
    Our Response: As a result of discussions with SRP since the 
publication of the revised proposed critical habitat rule (85 FR 23608; 
April 28, 2020), in this final rule, we revised the extent of the 
critical habitat within the Tonto Creek Unit to its full pool elevation 
of 2,151 ft (656 m) to avoid those areas typically inundated by the 
lake in the Roosevelt Lake Conservation Storage space. Although the 
northern Mexican gartersnake may use these areas during periods of 
drought or at other times when the lake is drawn down, these areas are 
temporary and extremely variable, and may not contain the PBFs 
necessary for survival on a long-term basis.
    With respect to flood control activities in the Roosevelt Lake 
flood control space included in critical habitat, Federal agencies that 
authorize, carry out, or fund actions that may affect listed species or 
designated critical habitat are required to consult with us to ensure 
the action is not likely to jeopardize listed species or destroy or 
adversely modify designated critical habitat. This consultation 
requirement under section 7 of the Act is not a prohibition of Federal 
agency actions; it is a means by which they may proceed in a manner 
that avoids jeopardy or adverse modification. Even in areas absent 
designated critical habitat, if the Federal agency action may affect a 
listed species, consultation is still required to ensure the action is 
not likely to jeopardize the species. Because the areas designated as 
critical habitat are occupied and consultation will be required to meet 
the jeopardy standard, the impact of the critical habitat designation 
should be minimal and administrative in nature. In addition, existing 
consultation processes also allow for emergency actions for risks to 
human life and property; critical habitat would not prevent the Corps 
from fulfilling those obligations.
    In regards to the commenters' request to exclude the Roosevelt Lake 
flood control space from the critical habitat designation for the 
northern Mexican gartersnake, the commenters provided general 
statements of their desire to be excluded but no information or 
reasoned rationale as described in the preamble discussion of our 
Policy Regarding Implementation of Section 4(b)(2) of the Endangered 
Species Act (81 FR 7226; February 11, 2016) or as described in our 
revised proposed critical habitat rule (85 FR 23608; April 28, 2020). 
To properly evaluate an exclusion request, the commenters must provide 
information concerning how the Corps flood control activities would be 
limited or curtailed by the designation, and hence the need for 
exclusion. In addition, as noted above, the requirement to consult with 
us on Federal actions that may affect designated critical habitat is 
designed to allow actions to proceed while avoiding destruction or 
adverse modification of critical habitat.
    In the Policy Regarding Implementation of Section 4(b)(2) of the 
Endangered Species Act (81 FR 7226; February 11, 2016), we outline the 
procedures we undertake when determining if an area should or should 
not be excluded. In determining whether to exclude an area, we are 
given a great deal of discretion for undertaking an exclusion analysis 
or determining to exclude an area. In our review of SRP's request for 
exclusion, we determined that the effect of having critical habitat 
designated in the Roosevelt Lake flood control space would require 
consultation with us for those Federal agency actions that may affect 
such designated critical habitat. In addition, we determined that this 
consultation requirement would not preclude these flood control 
activities from occurring, and subsequently would not result in a 
potential for increased risk of injury to human life and property.
    Comment 60: Permittees of the Service-approved Roosevelt HCP 
requested that the critical habitat within the SRP Camp Verde Riparian 
Preserve (Preserve) be designated as critical habitat for the northern 
Mexican gartersnake.
    The commenters expressed that a designation of critical habitat on 
the Preserve would assist the public's understanding of the importance 
of year-round protection for the riparian habitat that supports the 
northern Mexican gartersnake population, as well as flycatchers and 
cuckoos that are present on the property.
    Our Response: In the revised proposed critical habitat rule (85 FR 
23608; April 28, 2020), we identified approximately 96 ac (39 ha) 
within the Verde River Subunit of the Verde River Subbasin Unit owned 
by SRP covered by the Roosevelt HCP for the northern Mexican 
gartersnake. We are not excluding this area from the final designation. 
See Exclusions, Private or Other Non-Federal Conservation Plans Related 
to Permits Under Section 10 of the Act, below.
    Comment 61: One commenter stated that adequate surveys have not 
been conducted on properties managed by The Nature Conservancy along 
the Verde River, and there is no management plan to protect the species 
on these properties, so the properties should not be excluded from the 
critical habitat designation.
    Our Response: We did not receive a request for exclusion for The 
Nature Conservancy properties along the Verde River, although in the 
original proposed critical habitat rule (78 FR 41550; July 10, 2013) 
and in the revised proposed

[[Page 22533]]

critical habitat rule (85 FR 23608; April 28, 2020) we stated that we 
would consider The Nature Conservancy's Verde Springs Preserve and 
Verde Valley property for exclusion. The Nature Conservancy did not 
provide any supporting information, as described in our Policy 
Regarding Implementation of Section 4(b)(2) of the Endangered Species 
Act (81 FR 7226; February 11, 2016), or in response to our request for 
information in the revised proposed critical habitat rule (85 FR 23608; 
April 28, 2020). Although The Nature Conservancy is working with us to 
address conservation and recovery of the species in other areas, we 
have determined that the exclusion is not appropriate because we are 
not aware of any management plan for these properties along the Verde 
River that addresses conservation of the northern Mexican gartersnake. 
See Exclusions, Private or Other Non-Federal Conservation Plans or 
Agreements and Partnerships, in General, below.
    Comment 62: One commenter stated that we should not exclude Page 
Springs and Bubbling Ponds State Fish Hatcheries along Oak Creek in 
Yavapai County, Arizona, from the critical habitat designation because 
road mortality is high on the hatchery properties, and construction on 
the hatcheries will adversely modify habitat for the northern Mexican 
gartersnake. Another commenter stated that although AGFD has 
conservation projects and management actions for the species at these 
sites, it has not been consistent. They also stated construction at 
Bubbling Ponds Fish Hatchery impacts the species.
    Our Response: We identified this area for possible exclusion in the 
original proposed critical habitat rule (78 FR 41550; July 10, 2013) 
and in the revised proposed critical habitat rule (85 FR 23608; April 
28, 2020), and we have excluded it in this final rule based on AGFD's 
comprehensive management plan for its Page Springs Aquatic Resources 
Complex. Based on our consideration of proposed exclusions, we found 
that AGFD has demonstrated a commitment to management practices that 
have conserved and benefited the northern Mexican gartersnake 
population in the area and is currently managing northern Mexican 
gartersnake habitat successfully. Additionally, the exclusion of these 
areas is likely to be beneficial in maintaining working partnerships 
with AGFD and private landowners. As a result of our exclusion/
inclusion benefits analysis, we have determined that it is appropriate 
to exclude the area from the designation. Our rationale for excluding 
Page Springs and Bubbling Ponds State Fish Hatcheries is outlined below 
under Exclusions, Private or Other Non-Federal Conservation Plans or 
Agreements and Partnerships, in General.
    Comment 63: Permittees of the Service-approved section 10 Pima 
County Multi-Species Conservation Plan (MSCP) requested that the 
critical habitat within the Cienega Creek Natural Area managed by Pima 
County Regional Flood Control District that falls within the Pima 
County MSCP planning area be designated as critical habitat.
    The commenters expressed their confidence in the ability to deliver 
conservation benefit to the northern Mexican gartersnake by way of the 
mitigation, management, and monitoring strategies in the MSCP. However, 
large-scale Federal actions outside of Pima County's control could have 
significant negative impacts on species and lands under their 
management. The designation of critical habitat would require Federal 
agencies to use an additional standard of review when conducting 
section 7 consultations with the Service for federally permitted 
activities not controlled by Pima County. Keeping the area as critical 
habitat would further serve to benefit the conservation of species and 
its habitat (Murray 2020, entire). The commenters stated that 
maintaining northern Mexican gartersnake critical habitat on lands 
managed by the Pima County Regional Flood Control District would not 
impact their section 10(a)(1)(B) permit or their partners. The 
commenters therefore requested that critical habitat for the northern 
Mexican gartersnake be maintained on District-owned and leased 
properties and on the Federal lands within Las Cienegas NCA.
    Our Response: In the revised proposed critical habitat rule (85 FR 
23608; April 28, 2020), we identified approximately 12 mi (19 km) of 
Cienega Creek within 543 ac (220 ha) of the Cienega Creek Subunit of 
the Cienega Creek Subbasin Unit owned by Pima County Regional Flood 
Control District covered by the Pima County MSCP for the northern 
Mexican gartersnake. We are not excluding this area from this final 
critical habitat designation. See Exclusions, Private or Other Non-
Federal Conservation Plans Related to Permits Under Section 10 of the 
Act, below. We did not consider Federal lands within the Las Cienegas 
NCA for exclusion from critical habitat.
    Comment 64: We received several comments regarding exclusion from 
critical habitat designation of areas in the Upper San Pedro River 
Subbasin Unit that fall within the San Pedro Riparian NCA. One 
commenter requested that lands managed by the BLM, Arizona State Land 
Department, and private entities within the San Pedro River Subunit and 
Babocomari River Subunit, totaling approximately 5,745 ac, be excluded 
under section 4(b)(2) of the Act due to national security. The 
commenter stated that the proposed designation of critical habitat 
within these areas does not create a benefit to the northern Mexican 
gartersnake, yet it creates a significant economic burden that impairs 
the ability of the Department of Defense to protect national security. 
Several other commenters stated that the San Pedro River watershed area 
should not be excluded because the Army's request that lands controlled 
by other jurisdictions (i.e., BLM, State of Arizona, private 
landowners) would increase its regulatory burden and negatively impact 
national security operations is too speculative and simplistic. One 
commenter stated that we should not exclude from critical habitat 
designation the San Pedro River Subunit and the Babocomari River 
Subunit based on natural security impacts because the military base is 
not actually located within the proposed critical habitat, and 
groundwater pumping threatens the San Pedro River community, which 
included a vast majority of the proposed critical habitat for the 
northern Mexican gartersnake.
    Our Response: For exclusion of an area from critical habitat 
designation based on national security, we look to our Policy Regarding 
Implementation of Section 4(b)(2) of the Endangered Species Act (81 FR 
7226; February 11, 2016), which outlines measures we consider when 
excluding areas from critical habitat. A Federal agency must request 
exclusion based on National Security concerns and Fort Huachuca 
requested this exclusion. We reviewed Fort Huachuca's request for 
exclusion and determined that we are not considering the subject areas 
for exclusion from this final critical habitat designation due to 
national security. Please see Exclusions (Exclusions Based on Impacts 
on National Security and Homeland Security) for our analysis of the 
Fort Huachuca request for exclusion of lands within the San Pedro River 
and Babocomari River Subunits, which are within the San Pedro River 
NCA.
    Comment 65: Several commenters stated that we should consider the 
full scope of economic impacts to small entities for critical habitat 
rules. They also stated that the economic impact of the proposed 
designation would be

[[Page 22534]]

significant on agricultural and ranching operations.
    Our Response: For the revised proposed critical habitat rule (85 FR 
23608; April 28, 2020), we made available, and requested public 
comments on, a draft economic analysis to examine the incremental costs 
associated with the designation of critical habitat. Our draft economic 
analysis did not find that there would be significant economic impacts 
to agriculture from this designation of critical habitat. This includes 
impacts to third-party entities, such as local governments and private 
landowners. Critical habitat does not restrict private landowner access 
to their property, and private landowners would only need to consult 
with the Service under section 7 of the Act if Federal agency funding 
or permitting for an activity is needed. Because the areas are 
considered occupied, most costs are not associated with the critical 
habitat designation, but rather with listing of the species as 
threatened. In our mapping of critical habitat, we focused on areas 
that contain the PBFs for the species. We do not anticipate requesting 
additional modifications for livestock grazing or agricultural 
operations, or cost-share projects undertaken with agencies such as the 
U.S. Department of Agriculture's Natural Resources Conservation Service 
(NRCS), as a result of the critical habitat designation beyond those 
required for the species itself. The economic analysis outlines the 
substantial baseline protections currently afforded the northern 
Mexican gartersnake through its listed status under the Act and the 
presence of the species in all designated critical habitat units, as 
well as overlap with the designated critical habitat of other, similar 
listed species. As a result of these protections, the economic analysis 
concludes that incremental impacts associated with section 7 
consultations for the gartersnake are likely limited to additional 
administrative effort. Many of the areas designated as critical habitat 
for the gartersnake are already designated critical habitat for other 
listed species, and thus would not cause an incremental increase in 
effects due to the designation of critical habitat for the northern 
Mexican gartersnake.
    However, we recognize the potential for landowners' perceptions of 
the Act to influence land use decisions, including decisions to 
participate in Federal programs such as those managed by NRCS. Several 
factors can influence the magnitude of perception-related effects, 
including the community's experience with the Act and understanding of 
the degree to which future section 7 consultations could delay or 
affect land use activities. Information is not available to predict the 
impact of the designation of critical habitat on landowners' decisions 
to pursue cost-share projects with NRCS in the future. However, 
incremental effects due to the designation of critical habitat for the 
northern Mexican gartersnake are likely to be minimized because the 
species is already listed.
    Comment 66: One commenter requested we update the economic analysis 
to account for the impact of COVID-19 on economic conditions.
    Our Response: We do not anticipate any additional effects on 
economic conditions as a result of the impact of the COVID-19 pandemic. 
For the revised proposed critical habitat rule (85 FR 23608; April 28, 
2020), we made available, and requested public comments on, a draft 
economic analysis to examine the incremental costs associated with the 
designation of critical habitat. The draft economic analysis did not 
identify significant impacts. Because the critical habitat areas are 
considered occupied, the majority of costs are not associated with the 
critical habitat designation, but rather with listing of the species as 
threatened. If Federal funding is involved, the Federal agency 
providing the funding is the party responsible for meeting the Act's 
obligations to consult on projects on private lands. We have considered 
and applied the best available scientific and commercial information in 
determining the economic impacts associated with designating critical 
habitat. Critical habitat designation may also generate ancillary 
benefits by protecting the PBFs on which the species depends. As a 
result, management actions undertaken to conserve the species or its 
habitat may have coincident, positive social welfare implications, such 
as increased recreational opportunities in a region or improved 
property values on nearby parcels.

Background

    Critical habitat is defined in section 3 of the Act as:
    (1) The specific areas within the geographical area occupied by the 
species, at the time it is listed in accordance with the Act, on which 
are found those physical or biological features
    (a) Essential to the conservation of the species, and
    (b) Which may require special management considerations or 
protection; and
    (2) Specific areas outside the geographical area occupied by the 
species at the time it is listed, upon a determination that such areas 
are essential for the conservation of the species.
    Our regulations at 50 CFR 424.02 define the geographical area 
occupied by the species as an area that may generally be delineated 
around species' occurrences, as determined by the Secretary (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.

[[Page 22535]]

    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 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 from the species status assessment (SSA) report and 
information developed during the listing process for the species. 
Additional information sources may include any generalized conservation 
strategy, criteria, or outline that may have been developed for the 
species; the 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 prohibitions found in section 9 of the Act. 
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.

Physical or Biological Features Essential to the Conservation of the 
Species

    In accordance with section 3(5)(A)(i) of the Act and the applicable 
regulations at 50 CFR 424.12(b) (2012), 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, alkaline 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

[[Page 22536]]

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 physical or biological features essential to 
the conservation of the northern Mexican gartersnake from studies of 
the species' habitat, ecology, and life history as described below. We 
have determined that the following physical or biological features are 
essential to the conservation of the 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 meets or exceeds applicable State surface 
water quality standards.
    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. A combination of amphibians, fishes, small mammals, lizards, and 
invertebrate prey species such that prey availability occurs across 
seasons and years.
    4. An absence of nonnative fish species of the families 
Centrarchidae and Ictaluridae, American 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 8,497 feet (40 to 2,590 meters).
    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 meets or exceeds applicable State surface 
water quality standards.
    7. Ephemeral channels that connect perennial or spatially 
intermittent perennial streams to lentic wetlands in southern Arizona 
where water resources are limited.

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.
    A detailed discussion of activities influencing the northern 
Mexican gartersnake and its habitat can be found in the final listing 
rule (79 FR 38678; July 8, 2014). All areas of critical habitat will 
require some level of management to address the current and future 
threats to the northern Mexican gartersnake and to maintain or restore 
the PBFs. Special management within critical habitat will be needed to 
ensure these areas provide adequate water quantity, quality, and 
permanence or near permanence; cover (particularly in the presence of 
nonnative aquatic predators); an adequate prey base; and absence of or 
low numbers of nonnative aquatic predators that can affect population 
persistence. Activities that may be considered adverse to the 
conservation benefits of critical habitat include those which: (1) 
Completely dewater or reduce the amount of water to unsuitable levels 
in critical habitat; (2) result in a significant reduction of 
protective cover within critical habitat when nonnative aquatic 
predators species are present; (3) remove or significantly alter 
structural terrestrial features of critical habitat that alter natural 
behaviors such as thermoregulation, brumation, gestation, and foraging; 
(4) appreciably diminish the prey base for a period of time determined 
to likely cause population-level effects; and (5) directly promote 
increases in nonnative aquatic predator populations, result in the 
introduction of nonnative aquatic predators, or result in the continued 
persistence of nonnative aquatic predators. Common examples of these 
activities may include, but are not limited to, various types of 
development, channelization, diversions, road construction, erosion 
control, bank stabilization, wastewater discharge, enhancement or 
expansion of human recreation opportunities, fish community 
renovations, and stocking of nonnative, spiny-rayed fish species or 
promotion of policies that directly or indirectly introduce nonnative 
aquatic predators as bait. The activities listed above are just a 
subset of examples that have the potential to affect critical habitat 
and PBFs if they are conducted within designated units; however, some 
of these activities, when conducted appropriately, may be compatible 
with maintenance of adequate PBFs or even improve upon their value over 
time.

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 applicable implementing regulations 50 CFR 
424.12(b) (2012), to make a critical habitat designation, 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 
determined to be essential to the conservation of the species. We are 
not designating 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 designating any areas as 
critical habitat outside the geographical area occupied by the species 
at the time of listing. Sites

[[Page 22537]]

within the Upper Gila River, Upper Salt River, Verde River, Agua Fria 
River, San Pedro River, Santa Cruz River, and Black Draw watersheds 
were previously occupied by the northern Mexican gartersnake. While we 
know the conservation of the species will depend on increasing the 
number and distribution of populations of the northern Mexican 
gartersnake, not all of its historical range will be essential to the 
conservation of the species, and we are unable to delineate any 
specific unoccupied areas that are essential at this time. A number of 
areas within these watersheds continue to contain some or could develop 
many of the physical and biological features upon which the species 
depends, although the best available scientific data indicate all these 
areas are currently unoccupied. Some areas in these watersheds with the 
potential to support the physical and biological features are likely 
important to the overall conservation strategy for the northern Mexican 
gartersnake. Any specific areas essential to the species' conservation 
within these watersheds are not currently identifiable due to our 
limited understanding regarding the ideal configuration for the 
development of future habitat to support the northern Mexican 
gartersnake's persistence, the ideal size, number, and configuration of 
these habitats. Finally, the specific areas needed for conservation 
will depend in part on landowner willingness to restore and maintain 
the species' habitat in these areas. Therefore, although there may be a 
future need to expand the area occupied by the northern Mexican 
gartersnake 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 critical habitat units for the northern Mexican 
gartersnake, 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 
incidental sight records accompanied by photo vouchers and other 
supporting documentation verified by interviews with species experts. 
Holycross et al. (2020, entire) was a key source of information for 
vouchered historical and current records of the northern Mexican 
gartersnake species across its range. 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). 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 the northern 
Mexican gartersnake within its range. In addition to species data 
sources, we used publicly available geospatial datasets depicting water 
bodies, stream flow, vegetation type, and elevation to identify areas 
for critical habitat designation.
    We determined that a stream, stream reach, or lentic water body was 
occupied at the time of listing for northern Mexican gartersnake 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. We determined 
occupancy at the time of listing for northern Mexican gartersnake by 
reviewing all records for the species in conjunction with expected 
survivorship of each species, subsequent surveys in areas that had no 
detection of the corresponding gartersnake species, and changes in 
threats over time 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 (Ryan 2020, pers. comm.). The 
longest years between recaptures from these mark-recapture studies is 9 
years (Ryan 2020, pers. comm.). 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 prior to 1998, we have determined that 
the best available information reflecting occupancy at the time of 
listing supports a more recent date of records since 1998.
    Based on our analyses in the rule listing northern Mexican 
gartersnakes (79 FR 38678; July 8, 2014), we conclude that there has 
been a significant decline in the 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 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 northern Mexican 
gartersnakes in many areas where they were found in the 1980s. Areas 
where the species was found after 1997 are included in this final rule. 
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 gartersnakes were declining. These declines are 
what eventually led to the need to list the northern Mexican 
gartersnake.
    As explained extensively in the final listing rule for northern 
Mexican gartersnake species (79 FR 38678, July 8, 2014, pp. 79 FR 
38688-79 FR 38702), aquatic vertebrate survey efforts throughout the 
range of the northern Mexican gartersnake indicate that native prey 
species of northern Mexican 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 northern 
Mexican 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; Hall 2017, pp. 12-13). We 
acknowledge that northern Mexican gartersnakes 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 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

[[Page 22538]]

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.
    We included detections of northern Mexican gartersnake that 
occurred after the species was listed because these areas were likely 
occupied at the time of listing in 2014. As stated earlier, the species 
is 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 northern Mexican gartersnakes were released 
for recovery purposes after the species was listed that had not been 
historically occupied by the species.
    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 northern Mexican gartersnake 
species are not included. We do include stream reaches that lack survey 
data for the species, 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 northern Mexican 
gartersnake species to inform upstream and downstream boundaries of 
each unit and subunit of critical habitat. 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). 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 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 northern Mexican 
gartersnakes. 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 final rule, we delineate 
upstream and downstream critical habitat boundaries of a stream reach 
at 2.2 mi (3.6 km) from a known northern Mexican gartersnake 
observation record.
    The maps define the critical habitat designation, as modified by 
any accompanying regulatory text, presented at the end of this document 
under Regulation Promulgation. We include more detailed information on 
the boundaries of the critical habitat designation in the preamble of 
this document.
    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:
    1. We mapped records of observations of northern Mexican 
gartersnakes from 1998 to 2019. We then examined these areas to 
determine if northern Mexican gartersnakes 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 U.S. Geological 
Survey (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.
    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 aquatic 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 aquatic 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 northern 
Mexican gartersnakes had significant changes to the nonnative aquatic 
predator community, which also decreased prey availability for the 
gartersnakes. These areas were removed in our revised proposed critical 
habitat rule (85 FR 23608; April 28, 2020).
    7. We identified and removed stream reaches where stocking or 
management of nonnative fish species of the families Centrarchidae and 
Ictaluridae 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 mi (3.6 km). We then identified 
the most upstream and downstream records of the 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 in which records of observations of the species from 1998 to 2019 
were

[[Page 22539]]

found and included them in the critical habitat designation.
    12. We identified ephemeral reaches of occupied perennial or 
intermittent streams that serve as corridors between springs, cienegas, 
and natural or constructed ponds.
    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.
    When determining critical habitat boundaries, we made every effort 
to avoid including developed areas such as lands covered by buildings, 
pavement, and other structures because such lands lack physical or 
biological features necessary for the northern Mexican gartersnake. 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 rule have been excluded by 
text in the rule and are not designated as critical habitat. Therefore, 
a Federal action involving these lands will not trigger section 7 
consultation with respect to critical habitat and the requirement of no 
adverse modification unless the specific action would affect the PBFs 
in the adjacent critical habitat. However, constructed fish barriers in 
streams within the designated critical habitat are part of the 
designation and are needed to manage the exclusion of nonnative 
species. Accordingly, section 7 consultation would apply to actions 
involving such fish barriers.
    We are designating as critical habitat lands that we have 
determined are occupied at the time of listing (i.e., currently 
occupied) and that contain one or more of the physical or biological 
features that are essential to support life-history processes of the 
species. As described above, we are not designating any areas outside 
the geographical area occupied by the species at the time of listing.
    Units are designated based on one or more of the physical or 
biological features being present to support the northern Mexican 
gartersnake's life-history processes. Some units contain all of the 
identified PBFs and support multiple life-history processes. Some units 
contain only some of the PBFs necessary to support the northern Mexican 
gartersnake's use of that habitat.
    The critical habitat designation is defined by the maps, as 
modified by any accompanying regulatory text, presented at the end of 
this document under Regulation Promulgation. We include more detailed 
information on the boundaries of the critical habitat designation in 
the preamble of this document. We will make the coordinates or plot 
points or both on which each map is based available to the public on 
https://www.regulations.gov at Docket No. FWS-R2-ES-2020-0011, on our 
internet site https://www.fws.gov/southwest/es/Arizona/, and upon 
request from the field office responsible for the designation (see FOR 
FURTHER INFORMATION CONTACT).

Final Critical Habitat Designation

    We are designating eight units as critical habitat for the northern 
Mexican gartersnake. The critical habitat areas we describe below 
constitute our current best assessment of areas that meet the 
definition of critical habitat for the northern Mexican gartersnake.
    The eight areas we designate as critical habitat for the northern 
Mexican gartersnake are: (1) Upper Gila River Subbasin; (2) Tonto 
Creek; (3) Verde River Subbasin; (4) Bill Williams River Subbasin; (5) 
Arivaca Cienega; (6) Cienega Creek Subbasin; (7) Upper Santa Cruz River 
Subbasin; and (8) Upper San Pedro River Subbasin. Table 1 shows the 
critical habitat units and the approximate area of each unit.

                                            Table 1--Critical Habitat Units for Northern Mexican Gartersnake.
                                        [Area estimates reflect all land within critical habitat unit boundaries]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                         Land ownership by type acres  (hectares)
              Unit                      Subunit      --------------------------------------------------------------------------------  Total size 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).......  1,133 (458)
                                 -----------------------------------------------------------------------------------------------------------------------
2. Tonto Creek..................  ..................  2,230 (902).......  ..................  ..................  947 (383).........  3,176 (1,285)
                                                     ---------------------------------------------------------------------------------------------------
    Unit Total..................  ..................  2,230 (902).......  ..................  ..................  947 (383).........  3,176 (1,285)
                                 -----------------------------------------------------------------------------------------------------------------------
3. Verde River Subbasin.........  Verde River.......  768 (311).........  570 (231).........  ..................  2,955 (1,126).....  4,292 (1,737)
                                  Oak Creek.........  193 (78)..........  ..................  ..................  680 (275).........  873 (353)
                                  Spring Creek......  17 (7)............  1 (<1)............  ..................  80 (32)...........  99 (40)
                                                     ---------------------------------------------------------------------------------------------------
    Unit Total..................  ..................  978 (396).........  571 (231).........  ..................  3,715 (1,433).....  5,265 (2,131)
                                 -----------------------------------------------------------------------------------------------------------------------
4. Bill Williams River Subbasin.  Big Sandy River...  339 (137).........  ..................  ..................  593 (240).........  932 (377)
                                  Santa Maria River.  780 (316).........  ..................  ..................  532 (215).........  1,312 (531)
                                                     ---------------------------------------------------------------------------------------------------
    Unit Total..................  ..................  1,119 (453).......  ..................  ..................  1,126 (456).......  2,245 (908)
                                 -----------------------------------------------------------------------------------------------------------------------
5. Arivaca Cienega..............  ..................  149 (60)..........  1 (<1)............  ..................  62 (25)...........  211 (86)
                                                     ---------------------------------------------------------------------------------------------------
    Unit Total..................  ..................  149 (60)..........  1 (<1)............  ..................  62 (25)...........  211 (86)
                                 -----------------------------------------------------------------------------------------------------------------------
6. Cienega Creek Subbasin.......  Cienega Creek.....  755 (306).........  308 (125).........  ..................  605 (245).........  1,668 (675)
                                  Empire Gulch and    268 (109).........  57 (23)...........  ..................  ..................  326 (132)
                                   Empire Wildlife
                                   Pond.
                                  Gardner Canyon and  74 (30)...........  ..................  ..................  ..................  74 (30)
                                   Maternity
                                   Wildlife Pond.

[[Page 22540]]

 
                                  Unnamed Drainage    15 (6)............  ..................  ..................  ..................  15 (6)
                                   and Gaucho Tank.
                                                     ---------------------------------------------------------------------------------------------------
    Unit Total..................  ..................  1,113 (450).......  366 (148).........  ..................  605 (245).........  2,083 (843)
                                 -----------------------------------------------------------------------------------------------------------------------
7. Upper Santa Cruz River         Sonoita Creek.....  ..................  ..................  ..................  224 (91)..........  224 (91)
 Subbasin.
                                  Cott Tank Drainage  13 (5)............  ..................  ..................  ..................  13 (5)
                                  Santa Cruz River..  ..................  70 (28)...........  ..................  ..................  70 (28)
                                  Unnamed Drainage    ..................  36 (15)...........  ..................  ..................  36 (15)
                                   to Pasture 9 Tank.
                                  Unnamed Drainage    ..................  5 (2).............  ..................  ..................  5 (2)
                                   to Sheehy Spring.
                                  Scotia Canyon.....  31 (13)...........  ..................  ..................  ..................  31 (13)
                                  FS799 Tank........  0.7 (0.3).........  ..................  ..................  ..................  0.7 (0.3)
                                                     ---------------------------------------------------------------------------------------------------
    Unit Total..................  ..................  45 (18)...........  111 (45)..........  ..................  224 (91)..........  380 (154)
                                 -----------------------------------------------------------------------------------------------------------------------
8. Upper San Pedro River          San Pedro River...  4,911 (1,988).....  ..................  ..................  215 (87)..........  5,126 (2,074)
 Subbasin.
                                  Babocomari River..  197 (80)..........  8 (3).............  ..................  199 (81)..........  404 (164)
                                  O'Donnell Canyon..  58 (24)...........  ..................  ..................  181 (73)..........  239 (97)
                                  Post Canyon.......  30 (12)...........  ..................  ..................  32 (13)...........  62 (19)
                                  Unnamed Drainage    ..................  ..................  ..................  3 (1).............  3 (1)
                                   and Finley Tank.
                                  House Pond........  0.6 (0.2).........  ..................  ..................  ..................  0.6 (0.2)
                                                     ---------------------------------------------------------------------------------------------------
    Unit Total..................  ..................  5,197 (2,103).....  8 (3).............  ..................  630 (255).........  5,834 (2,361)
                                 -----------------------------------------------------------------------------------------------------------------------
        Grand Total.............  ..................  10,831 (4,383)....  1,078 (436).......  ..................  8,419 (3,407).....  20,326 (8,226)
--------------------------------------------------------------------------------------------------------------------------------------------------------
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 the northern Mexican 
gartersnake, below.

Unit 1: Upper Gila River Subbasin Unit

    Unit 1 consists of 1,133 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 Upper Gila River Subbasin Unit 
is located in southwestern New Mexico southeast of the towns of Cliff 
and Gila, in Grant County. The New Mexico Department of Game and Fish, 
New Mexico State Land Department, and private entities manage lands 
within this unit.
    Unit 1 is designated as critical habitat because it was occupied at 
the time of listing and 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. Northern Mexican gartersnakes have been found in 
the Gila River near the Highway 180 crossing in 2002, 2013, and 2015, 
and just outside of Duck Creek near it's confluence with the Gila River 
in 2018 (Hill 2007, pers. comm.; Hotle 2013, p.1; Geluso 2016, pers. 
comm.; Geluso 2018, pers. comm.; and Holycross et al. 2020, p. 717). 
Several reaches of the Gila River have been adversely affected by 
channelization and diversions, which have reduced or eliminated base 
flow. The PBFs in this unit may require special management 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 
critical habitat.

Unit 2: Tonto Creek Unit

    Unit 2 consists of 3,176 ac (1,285 ha) of critical habitat along 29 
stream mi (47 km) of Tonto Creek. The Tonto Creek Unit is generally 
located near the towns of Gisela and Punkin Center, Arizona, in Gila 
County. The downstream end of critical habitat is the Conservation 
Storage elevation of Theodore Roosevelt Lake (2,151 ft (656 m)) near 
the confluence with Ash Creek. The Tonto National Forest is the primary 
land manager in this unit, with additional lands privately owned.
    Unit 2 is designated as critical habitat because it was occupied at 
the time of listing and 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. Northern Mexican gartersnakes have been found in Tonto Creek 
in 2004, 2005, and 2010 to 2017 in the vicinity of Gisela, Arizona 
(Holycross et al. 2006, p. 42; Burger 2010, p. 1; Madara-Yagla 2010, p. 
6; Madara-Yagla 2011, p. 6; Madara-Yagla 2012, pers. comm.; Nowak et 
al. 2015, Table 1; Nowak 2015, p. 2; Nowak et al. 2016, Table 1; Myrand 
et al. 2016, pp. 5-6; Myrand et al. 2017; Nowak 2017, p. 6; and 
Holycross et al. 2020, p. 717). 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 
these species are more likely to be present when the lake level is at 
Conservation Storage elevation. The PBFs in this unit may require 
special management due to competition with, and predation by, nonnative 
species that are present in this unit; water diversions causing loss of 
base flow; flood-control projects; and

[[Page 22541]]

development of areas adjacent to or within critical habitat.

Unit 3: Verde River Subbasin Unit

    Unit 3 consists of 5,265 ac (2,131 ha) along 64 stream mi (102 km) 
in three subunits: 39 stream mi (62 km) of the Verde River, including 
Tavasci Marsh and Peck Lake; 22 stream mi (35 km) of Oak Creek; and 4 
stream mi (6 km) of Spring Creek. The Verde River Subbasin Unit is 
generally located near the towns of Cottonwood, Cornville, and Camp 
Verde, Arizona, in Yavapai County. 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 State Parks at Deadhorse Ranch and Verde River 
Greenway State Natural Area; Arizona State Trust; and private entities.
    Unit 3 is designated as critical habitat because it was occupied at 
the time of listing and as a whole, this unit contains PBFs 1, 2, 3, 
and 5, but PBF 4 is in degraded condition. Northern Mexican 
gartersnakes have been found in the Verde River at Tuzigoot National 
Monument, Tavasci Marsh, Dead Horse Ranch State Park, Camp Verde 
Riparian Preserve, and upstream of Beasley Flat from 2003 to 2019; in 
and adjacent to Oak Creek at the Bubbling Ponds and Page Springs 
hatcheries from 2007 to 2018; and in Spring Creek downstream of Highway 
89A in 2014 (Schmidt et al. 2005, Table 5.9; Holycross et al. 2006, 
Appendix A; Boyarski 2011, entire; Nowak et al. 2011, Table 1; Nowak 
2012, pers. comm.; I. Emmons 2012, pers. comm.; Emmons and Nowak 2013, 
Table 1; Crowder 2014, pers. comm.; Nowak 2015, p.1; Emmons and Nowaks 
2016, Appendix 1; Nowak 2017, pers. comm.; Greenawalt 2018, pers. 
comm.; Ryan 2018, pers. comm.; Ryan 2019, pers. comm.; Jenney 2019, 
pers. comm.; and Holycross et al. 2020, p. 717). 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. The PBFs in this unit may require special management 
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 critical habitat.
    We have excluded 225 ac (91 ha) of lands owned by the Yavapai-
Apache Nation, and 142 ac (57 ha) of AGFD's Bubbling Ponds and Page 
Springs fish hatcheries in Oak Creek Subunit (see Exclusions, below).

Unit 4: Bill Williams River Subbasin Unit

    Unit 4 consists of 2,245 ac (908 ha) along 13 stream mi (22 km) in 
two subunits: 8 stream mi (13 km) of Big Sandy River and 5 stream mi (9 
km) of Santa Maria River. The Bill Williams River Subbbasin Unit is 
generally located in western Arizona, northeast of Parker, Arizona, in 
La Paz and Mohave Counties. 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.
    Unit 4 is designated as critical habitat because it was occupied at 
the time of listing and 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. Northern Mexican gartersnakes have been found in the Big 
Sandy River in 2010, 2015, and 2016 and in the Santa Maria River in 
2015 and 2016 (Cotten 2015a and 2015b; Partridge 2015; O'Donnell et al. 
2016; Sullivan et al. 2016; and Holycross et al. 2020). This unit 
contains lowland leopard frogs (Rana yavapaiensis), and native fish 
appear to be largely absent, although longfin dace (Agosia 
chrysogaster) have been detected in the Santa Maria River Subunit. 
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 PBFs in this unit may require special 
management due to competition with, and predation by, nonnative species 
that are present in this unit and flood-control projects.
    We have excluded the entire Bill Williams River Subunit, including 
1,476 ac (597 ha) of Federal, State, and private lands within the Lower 
Colorado River MSCP boundary, and 329 ac (133 ha) of AGFD's Planet 
Ranch Conservation and Wildlife Area property (see Exclusions, below).

Unit 5: Arivaca Cienega Unit

    Unit 5 consists of 211 ac (86 ha), along 3 stream mi (5 km) of 
Arivaca Creek within Arivaca Cienega. The Arivaca Cienega Unit is 
generally located in southern Arizona, in and around the town of 
Arivaca in Pima County, Arizona. This unit occurs on lands managed by 
the Service at Buenos Aires NWR, Arizona State Land Department, and 
private landowners. Drought, bullfrogs, and crayfish are a concern in 
the Arivaca Cienega Unit.
    Unit 5 is designated as critical habitat because it was occupied at 
the time of listing and as a whole, 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. Northern Mexican gartersnakes were found in Arivaca 
Cienega in 2000 (Rosen et al. 2001). The PBFs in this unit may require 
special management due to loss of perennial flow, as well as 
competition with, and predation by, nonnative species that are present 
in this unit.

Unit 6: Cienega Creek Subbasin Unit

    Unit 6 consists of 2,083 ac (843 ha) along 46 stream mi (73 km) in 
four subunits: 30 stream mi (48 km) of Cienega Creek; 7 stream mi (12 
km) of Empire Gulch, including Empire Wildlife Pond; 2 stream mi (3 km) 
of an unnamed drainage to Gaucho Tank, including Gaucho Tank; and 7 
stream mi (11 km) of Gardner Canyon, including Maternity Wildlife Pond. 
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. The unnamed drainage to Gaucho Tank 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.
    Unit 6 is designated as critical habitat because it was occupied at 
the time of listing and as a whole, this unit contains PBFs 1, 2, 3, 5, 
6, and 7, but PBF 4 is in degraded condition. Northern Mexican 
gartersnakes have been found in Cienega Creek at the Cienega Creek Pima 
County Preserve and Las Cienegas NCA in 2000, 2001, and 2011; Empire 
Wildlife Pond in 2016, Gaucho Tank in 2017, and Maternity Wildlife Pond 
in 2015 (Rosen et al. 2001, Appendix 1; Caldwell 2012, pers. comm.; 
Hall 2012, pers. comm.; Hall 2016, pers. comm.; Hall 2017, pers. comm.; 
Hall 2019, pers. comm; Simms 2019, pers. comm.; and Holycross et al. 
2020, p. 717). Special management may be required to

[[Page 22542]]

continue to promote the recovery or expansion of native leopard frogs 
and fish, continue bullfrog management, and eliminate or reduce other 
predatory nonnative species.

Unit 7: Upper Santa Cruz River Subbasin Unit

    Unit 7 consists of 380 ac (154 ha) along 14 stream mi (23 km) in 
seven subunits: FS 799 Tank; 5 stream mi (8 km) of Sonoita Creek; 4 
stream mi (7 km) of Scotia Canyon; 2 stream mi (3 km) of Cott Tank 
Drainage; 2 stream mi (3 km) of Santa Cruz River; 2 stream mi (4 km) of 
an unnamed drainage to Pasture 9 Tank; and 0.6 stream mi (1 km) of an 
unnamed drainage to 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 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. 
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, The Nature Conservancy, 
and private landowners.
    Unit 7 is designated as critical habitat because it was occupied at 
the time of listing and as a whole, this unit contains PBFs 1, 2, 3, 5, 
6, and 7, but PBF 4 is in degraded condition. Northern Mexican 
gartersnakes have been found in FS 799 Tank in 2007, 2016, and 2018; 
Sonoita Creek in 2013; Scotia Canyon from 2000 to 2018; Cott Tank 
Drainage in 2008; Santa Cruz River in 2006 to 2018; Pasture 9 Tank in 
2012; and Sheehy Spring in 2000 (Rosen et al. 2001, Table 4; Holycross 
et al. 2006, Appendix A; Frederick 2008, pers. comm.; Jones 2007, pers. 
comm; Jones 2013, pers. comm.; Jones 2009, pers. comm.; Servoss 2009, 
pers. comm.; Servoss 2018, pers. comm.; Akins 2012, pers. comm.; 
Lashway 2012, p. 5; Lashway 2014, p. 4; Lashway 2015, p. 4; Timmons 
2014, pers. comm.; Timmons 2017, pers. comm.; Bookwalter 2014, pers. 
comm.; Cotten 2016, pers. comm.; Sorensen 2016, pers. comm.; Aaron 
2017, pers. comm.; Ryan 2018, pers. comm.; and Holycross et al. 2020, 
p. 717). Native fish, American bullfrogs (Rana catesbeiana), tiger 
salamanders (Ambystoma spp.), and Chiricahua leopard frogs (Rana 
chiricahuensis) provide prey for northern Mexican gartersnakes in the 
Upper Santa Cruz River Subbasin Unit. Bullfrogs and nonnative, spiny-
ray fish remain an issue in this unit. Special management may be 
required to continue to promote the recovery or expansion of native 
leopard frogs and fish and eliminate or reduce predatory nonnative 
species.
    We have excluded 0.2 ac (0.1 ha) of State lands within the 60-ft 
(18-m) Roosevelt Reservation from the Santa Cruz River Subunit. We have 
also excluded a total of 116 ac (47 ha) of private lands within the 
following subunits: San Rafael Cattle Company's San Rafael Ranch in the 
Santa Cruz River Subunit, Unnamed Drainage to Pasture 9 Tank Subunit, 
and Unnamed Drainage to Sheehy Spring Subunit; and Unnamed Wildlife 
Pond Subunit.

Unit 8: Upper San Pedro River Subbasin Unit

    Unit 8 consists of 5,834 ac (2,361 ha) in six subunits along 35 
stream mi (56 km): 22 stream mi (35 km) of the San Pedro River; 6 
stream mi (10 km) of the Babocomari River; 4 stream mi (6 km) in 
O'Donnell Canyon; 3 stream mi (km) in Post Canyon; 0.4 stream mi (0.6 
km) in an unnamed drainage and Finley Tank, and House Pond. 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. 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 the Appleton-
Whittell Research Ranch owned by Audubon Society and Federal 
landowners.
    Unit 8 is designated as critical habitat because it was occupied at 
the time of listing and, as a whole, this unit contains PBFs 1, 2, 5, 
6, and 7, but PBFs 3 and 4 are in degraded condition. Northern Mexican 
gartersnakes have been found in the San Pedro River near Highway 82 and 
State Route 90 in 2006 and 2018, Babocomari River in 2007 and 2009, 
O'Donnell Canyon on the Appleton-Whittell Research Ranch from 2000 to 
2015, Post Canyon in 2009, Finley Tank in 2000, 2007 to 2009, and 2014; 
and House Pond in 2014 (Rosen et al. 2001, Appendix 1; Miscione 2009, 
pers. comm.; d'Orgeix 2011; d'Orgeix et al. 2013; Cogan 2014, pers. 
comm.; Cogan 2015, pers. comm.; Deecken 2014, pers. comm.; Miscione 
2017, pers. comm.; and Ohlenkamp 2018, pers. comm.). Native fish and 
leopard frogs occur in House Pond, O'Donnell Canyon, and Post 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. The PBFs in the Upper San Pedro River 
Subbasin Unit may require special management due to competition with, 
and predation by, predatory nonnative species that are present in this 
unit.
    We have excluded a total of 15 ac (6 ha) owned by a private ranch 
in the Post Canyon Subunit (see Exclusions, below).

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 listed under the Act 
or result in the destruction or adverse modification of critical 
habitat.
    We published a final rule revising the 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 
Corps 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 agency--do not require section 7 consultation.

[[Page 22543]]

    As a result of section 7 consultation, we document compliance with 
the requirements of section 7(a)(2) through our issuance of:
    (1) A concurrence letter for Federal actions that may affect, but 
are not likely to adversely affect, listed species or critical habitat; 
or
    (2) A biological opinion for Federal actions that may affect, and 
are likely to adversely affect, listed species or critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to jeopardize the continued existence of a listed species and/or 
destroy or adversely modify critical habitat, we provide reasonable and 
prudent alternatives to the project, if any are identifiable, that 
would avoid the likelihood of jeopardy and/or destruction or adverse 
modification of critical habitat. We define ``reasonable and prudent 
alternatives'' (at 50 CFR 402.02) as alternative actions identified 
during consultation that:
    (1) Can be implemented in a manner consistent with the intended 
purpose of the action,
    (2) Can be implemented consistent with the scope of the Federal 
agency's legal authority and jurisdiction,
    (3) Are economically and technologically feasible, and
    (4) Would, in the Service Director's opinion, avoid the likelihood 
of jeopardizing the continued existence of the listed species and/or 
avoid the likelihood of destroying or adversely modifying critical 
habitat.
    Reasonable and prudent alternatives can vary from slight project 
modifications to extensive redesign or relocation of the project. Costs 
associated with implementing a reasonable and prudent alternative are 
similarly variable.
    Regulations at 50 CFR 402.16 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 adverse modification determination is 
whether, with implementation of the proposed Federal action, the 
affected critical habitat would continue to serve its intended 
conservation role for the species. Activities that may destroy or 
adversely modify critical habitat are those that result in a direct or 
indirect alteration that appreciably diminishes the value of critical 
habitat for the conservation of the northern Mexican gartersnake. Such 
alterations may include, but are not limited to, those that alter the 
PBFs essential to the conservation of these species or that preclude or 
significantly delay development of such features. As discussed above, 
the role of critical habitat is to support PBFs 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 section 
7(a)(2) of the Act by destroying or adversely modifying such habitat, 
or that may be affected by such designation.
    Activities that may affect critical habitat, when carried out, 
funded, or authorized by a Federal agency, should result in 
consultation for the northern Mexican gartersnake. Some activities may 
have short-term negative effects to designated critical habitat but may 
also result in long-term benefits to the gartersnake.
    These activities 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 aquatic 
or wetland habitat such that the prey base for the northern Mexican 
gartersnake, or the gartersnake itself, is 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 constructed ponds. 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 gartersnake itself.
    (2) Actions that would significantly increase sediment deposition 
or scouring within the stream channel or pond that is habitat for the 
northern Mexican gartersnake, or one or more of their prey species 
within the range of the northern Mexican gartersnake. Such activities 
could include, but are not limited to: Livestock grazing that results 
in erosion contaminating waters; 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 the gartersnake's 
prey species (e.g., leopard frogs) 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

[[Page 22544]]

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 Corps. 
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.
    (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 northern Mexican 
gartersnakes or its 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 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 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 aquatic predators on the northern 
Mexican gartersnake, leading to significantly reduced recruitment 
within gartersnake populations and diminishment or extirpation of their 
prey base.

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 (DoD) lands with a completed INRMP within the 
final critical habitat designation.

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

    Section 4(b)(2) of the Act states that the Secretary shall 
designate and make revisions to critical habitat on the basis of the 
best available scientific data after taking into consideration the 
economic impact, national security impact, and any other relevant 
impact of specifying any particular area as critical habitat. The 
Secretary may exclude an area from critical habitat if he or she 
determines that the benefits of such exclusion outweigh the benefits of 
specifying such area as part of the critical habitat, unless he or she 
determines, based on the best scientific data available, that the 
failure to designate such area as critical habitat will result in the 
extinction of the species. In making 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. On 
December 18, 2020, we published a final rule in the Federal Register 
(85 FR 82376) revising portions of our regulations pertaining to 
exclusions of critical habitat. These final regulations became 
effective on January 19, 2021 and apply to critical habitat rules for 
which a proposed rule was published after January 19, 2021. 
Consequently, these new regulations do not apply to this final rule.
    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 identifying 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 the northern Mexican gartersnake, the 
benefits of critical habitat include public awareness of the presence 
of the species and the importance of habitat protection, and, where a 
Federal nexus exists, increased habitat protection for the gartersnake 
due to the 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 PBFs; 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.
    As discussed below, based on the information provided by entities 
seeking exclusion, as well as any additional public comments we 
received, we evaluated whether certain lands in the proposed critical 
habitat were

[[Page 22545]]

appropriate for exclusion from this final designation pursuant to 
section 4(b)(2) of the Act. We are excluding the following areas from 
critical habitat designation for the northern Mexican gartersnake:

  Table 2--Areas Excluded From Critical Habitat Designation by Critical
            Habitat Unit for the Northern Mexican Gartersnake
------------------------------------------------------------------------
                                  Landowner, management    Area excluded
          Unit subunit                     plan              (ac (ha))
------------------------------------------------------------------------
Verde River Subbasin Unit:
    Verde River................  Yavapai-Apache Nation..        225 (91)
    Oak Creek..................  Arizona Game and Fish          142 (57)
                                  Department, Page
                                  Springs Aquatic
                                  Resources Complex
                                  Management Plan.
                                                         ---------------
        Unit total being         .......................       367 (148)
         excluded.
                                                         ---------------
Bill Williams River Subbasin
 Unit:
    Bill Williams River........  Multiple landowners,        1,805 (730)
                                  Lower Colorado River
                                  MSCP.
                                                         ---------------
        Unit total being         .......................     1,805 (730)
         excluded.
                                                         ---------------
Lower Colorado River Unit:
    Colorado River.............  USFWS, Lower Colorado     4,467 (1,808)
                                  River MSCP.
                                                         ---------------
        Unit total being         .......................   4,467 (1,808)
         excluded.
                                                         ---------------
Upper Santa Cruz River Subbasin
 Unit:
    Santa Cruz River...........  San Rafael Cattle               91 (37)
                                  Company, San Rafael
                                  Ranch Low-effect HCP.
                                 Arizona State Parks,        0.23 (0.09)
                                  Department of Homeland
                                  Security--National
                                  Security.
    Unnamed Drainage and         San Rafael Cattle                 5 (2)
     Pasture 9 Tank.              Company, San Rafael
                                  Ranch Low Effect HCP
                                  and AGFD's SHA.
    Unnamed Drainage and Sheehy  San Rafael Cattle                20 (8)
     Spring.                      Company, San Rafael
                                  Ranch Low Effect HCP
                                  and AGFD's SHA.
    Unnamed Wildlife Pond......  Private, AGFD's SHA....     0.07 (0.03)
                                                         ---------------
        Unit total being         .......................        116 (47)
         excluded.
                                                         ---------------
Upper San Pedro River Subbasin
 Unit:
                                 Private Ranch, AGFD's            15 (6)
                                  SHA.
                                                         ---------------
        Unit total being         .......................          15 (6)
         excluded.
                                                         ---------------
            Grand Total........  .......................   6,769 (2,739)
------------------------------------------------------------------------

    The Act affords a great degree of discretion to the Services in 
implementing section 4(b)(2). This discretion is applicable to a number 
of aspects of section 4(b)(2) including whether to enter into the 
discretionary 4(b)(2) exclusion analysis and the weights assigned to 
any particular factor used in the analysis. Most significant is that 
the decision to exclude is always discretionary, as the Act states that 
the Secretaries ``may'' exclude any areas. Under no circumstances is 
exclusion required under the second sentence of section 4(b)(2). There 
is no requirement to exclude, or even to enter into a discretionary 
4(b)(2) exclusion analysis for any particular area identified as 
critical habitat. Accordingly, per our discretion, we have only done a 
full discretionary exclusion analysis when we received clearly 
articulated and reasoned rationale to exclude the area from this 
critical habitat designation.

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. In order to consider economic impacts, we prepared 
an incremental effects memorandum (IEM) and screening analysis which, 
together with our narrative and interpretation of effects we consider 
our draft economic analysis (DEA) of the critical habitat designation 
and related factors (IEc 2019, entire). The analysis, dated October 10, 
2019, was made available for public review from April 28, 2020 through 
June 29, 2020 (see 85 FR 23608; April 28, 2020). The DEA addressed 
probable economic impacts of critical habitat designation for the 
northern Mexican gartersnake. Following the close of the comment 
period, we reviewed and evaluated all information submitted during the 
comment period that may pertain to our consideration of the probable 
incremental economic impacts of this critical habitat designation. 
Additional information relevant to the probable incremental economic 
impacts of critical habitat designation for the northern Mexican 
gartersnake is summarized below and available in the screening analysis 
for the northern Mexican gartersnake (IEc 2019, entire), available at 
https://www.regulations.gov.
    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 critical habitat. The following specific 
circumstances help to inform our evaluation: (1) The essential PBFs 
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 would also likely adversely affect the essential 
PBFs of

[[Page 22546]]

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 
designation of critical habitat.
    The critical habitat designation for the northern Mexican 
gartersnake totals 20,326 ac (8,226 ha) comprising eight units. Land 
ownership within critical habitat for the northern Mexican gartersnake 
in acres is broken down as follows: Federal (53 percent), State 
(Arizona and New Mexico) (5 percent), and private (41 percent) (see 
Table 1, above). All units are 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 northern Mexican gartersnake. Further, every unit of 
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. 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 (IEc 2019, entire). 
This is due to all units being occupied by the northern Mexican 
gartersnake.
    Based on consultation history for the gartersnake, 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 (IEc 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.

Exclusions Based on Economic Impacts

    The Service considered the economic impacts of the critical habitat 
designation. We are not exercising our discretion to exclude any areas 
from this designation of critical habitat for the northern Mexican 
gartersnake based on economic impacts.

Exclusions Based on Impacts on National Security and Homeland Security

    Section 4(a)(3)(B)(i) of the Act may not cover all 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 
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, however, 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 section 4(b)(2) exclusion analysis, we will give great 
weight to national-security and homeland-security concerns in analyzing 
the benefits of exclusion.
I. U.S. Customs and Border Protection (CBP)/Department of Homeland 
Security (DHS)--U.S./Mexico Border Lands
    We received a request from the CBP that the Roosevelt Reservation 
portion of critical habitat along the U.S./Mexico border be considered 
for exclusion under section 4(b)(2) of the Act for national security 
reasons. The Roosevelt Reservation is a 60-ft (18-m) wide strip of land 
owned by the Federal Government along the U.S. side of the U.S./Mexico 
border (DHS 2020, entire). The Reservation was established in 1907 by 
President Theodore Roosevelt to protect the public welfare by ordering 
that all public lands along the border in California, Arizona, and New 
Mexico ``be reserved from the operation of the public land laws and 
kept free from obstruction as a protection against the smuggling of 
goods between the United States and [Mexico]'' (35 Stat. 2136). No 
critical habitat was proposed along the border in New Mexico.
    DHS and CBP requested an exclusion for a portion of the Roosevelt 
Reservation located in Santa Cruz County in Arizona. Their exclusion 
request incorrectly identified several subunits within the Upper Santa 
Cruz River Subbasin Unit--specifically the Santa Cruz River, Unnamed 
Drainage and Sheehy Spring, and Unnamed Drainage and Pasture 9 Tank 
subunits. However, the only subunit affected by the Roosevelt 
Reservation is the Santa Cruz River Subunit. The area considered for 
exclusion totals 0.23 ac (0.09 ha). This subunit was considered to have 
been occupied at the time of listing and is currently occupied. This 
subunit extends a small distance north of the border beyond the 60-ft 
(18-m) wide Roosevelt Reservation (see the unit

[[Page 22547]]

descriptions, above). The following analysis addresses only the 60-ft 
(18-m) wide Roosevelt Reservation along the border and not additional 
portions of the subunit.
    The CBP, uses the Roosevelt Reservation for border security 
operations. The mission of the CBP is to ``safeguard America's borders 
thereby protecting the public from dangerous people and materials while 
enhancing the Nation's global economic competitiveness by enabling 
legitimate trade and travel.'' The Roosevelt Reservation contains 
border security related infrastructure consisting of border barrier, 
lighting, a patrol road, and cleared vegetation of the 60-ft (18-m) 
wide reservation. CBP conducts routine patrols and law enforcement 
activities between the land ports of entries such as intervention of 
drug smuggling, human trafficking, and tracking of illegal immigrant 
foot traffic. Border enforcement activities can occur along the road 
bordering the barrier (within the 60-ft (18-m) Roosevelt Reservation) 
and outside of the Roosevelt Reservation, as needed for enforcement.
    The Roosevelt Reservation, created in 1907, has historically been 
used for border enforcement actions in Arizona for decades and includes 
an existing patrol road in most areas. DHS states that they will 
continue to maintain and clear vegetation within the Roosevelt 
Reservation to ensure a safe operating environment for agents 
patrolling and enforcing border laws on the border. These border-
security activities are not compatible with riparian or aquatic 
habitat. As a result, since designating the 60-ft (18-m) wide Roosevelt 
Reservation as critical habitat for the northern Mexican gartersnake 
would interfere with ongoing border security operations, DHS states 
that the 60-ft (18-m) wide Roosevelt Reservation should be excluded 
because of national security reasons.
    Currently, CBP accesses the project area; removes vegetation; and 
creates, maintains, and uses roads, drainage, and lighting, as well as 
conducts operations involved with homeland security. Actions pertaining 
to border security operations and potential future building, 
maintenance, and operation of the border infrastructure are considered 
to have negative effects to northern Mexican gartersnake individuals 
and habitat, based on the northern Mexican gartersnake's behaviors and 
biological needs.

Benefits of Inclusion--U.S./Mexico Border Lands--Roosevelt Reservation

    An important benefit of including lands in a critical habitat 
designation is that the designation can serve to educate landowners and 
the public regarding the potential conservation value of an area, and 
it may help focus management and conservation efforts on areas of high 
value for certain species. The Santa Cruz River Subunit is important to 
northern Mexican gartersnakes because it has supported a reliably 
detected population for many years. Any information about the northern 
Mexican gartersnake that reaches a wide audience, including parties 
engaged in conservation activities, is valuable and would continue to 
encourage collaboration between DHS, CBP, and the Service. The 
Department of the Interior, U.S. Department of Agriculture (USDA), and 
DHS entered into a memorandum of understanding (MOU) in 2006 (DHS-DOI-
USDA 2006, entire). The MOU provides consistent goals, principles, and 
guidance related to DHS, DOI, and USDA working together in fulfilling 
their mandated responsibilities. The MOU sets goals for communication, 
cooperation, and resolving conflicts while allowing for border security 
operations such as: Law enforcement operations; tactical infrastructure 
installation; use of roads; and minimization and/or prevention of 
significant impact on or impairment of natural and cultural resources, 
including those protected under the Act.
    The border area is important because it provides connectivity 
between northern Mexican gartersnake populations in the U.S. with those 
in Mexico. These corridors support primary prey species necessary to 
sustain northern Mexican gartersnake populations. Including the 
Roosevelt Reservation provides opportunities for education and public 
awareness concerning the aquatic and riparian community that supports 
northern Mexican gartersnakes and potentially encourages future 
restoration and minimization of adverse effects in areas designated. 
This may lead to retaining important habitat attributes and provide for 
naturally functioning drainages to maintain or restore the 
environmental qualities of the sites. Retaining hydrological processes 
that allow for drainages to fully function naturally will sustain 
riparian habitat upstream and downstream of the Roosevelt Reservation.

Benefits of Exclusion--U.S./Mexico Border Lands--Roosevelt Reservation

    The benefits of excluding the 60-ft (18-m) Roosevelt Reservation 
area are significant. CBP has been tasked with enforcing national 
security along border areas of the United States. The Roosevelt 
Reservation and infrastructure within the area is a key component in 
assisting CBP to conduct its normal operations and fulfilling their 
national security mission along the southern border of the United 
States. CBP has identified the following activities and infrastructure 
occurring within the Roosevelt Reservation: Barrier fencing, lighting 
systems, enforcement zones, patrol roads, cleared vegetation, vehicular 
patrol operations, ongoing border barrier maintenance, and illegal 
immigrant foot traffic and trespass. The designation of the Roosevelt 
Reservation may reduce CBP's availability of unencumbered space to 
support its operations. By excluding the 60-ft (18-m) Roosevelt 
Reservation the CBP would be able to fulfill its mission of securing 
the border and conduct necessary border patrol operations.
    Excluding the Roosevelt Reservation from northern Mexican 
gartersnake critical habitat will enable CBP to continue actions 
without a need to consult on the possible effects of adverse 
modification to critical habitat. CBP states that excluding critical 
habitat will also reduce the chances that they will need to obtain 
additional waivers that they might not otherwise need for border 
infrastructure projects.
    Excluding the Roosevelt Reservation from the designation of 
critical habitat so that CBP border activities can continue could also 
have several positive effects to northern Mexican gartersnakes. For 
example, border infrastructure and patrolling could help prevent 
unauthorized trespass and resource destruction to areas adjacent to the 
border that may impact habitat for prey species of the northern Mexican 
gartersnake.

Benefits of Exclusion Outweigh Benefits of Inclusion--U.S./Mexico 
Border Lands--Roosevelt Reservation

    The benefits of including lands in a critical habitat designation 
include educating landowners, agencies, Tribes, and the public 
regarding the potential conservation value of an area, as well as 
potentially helping to focus conservation efforts on areas of high 
value for certain species and maintaining consistency with other areas 
being designated for other listed species within the Roosevelt 
Reservation. Because the Roosevelt

[[Page 22548]]

Reservation only extends 60 ft (18 m) along the border, the amount of 
area associated with the exclusion is small, and the majority of 
critical habitat that is being designated adjacent to the Roosevelt 
Reservation remains in the final designation, allowing for the 
educational benefits to remain. In addition, we have an existing 
partnership with DHS and CBP whereby we coordinate our 
responsibilities. As a result, the educational benefits of inclusion 
are small.
    The benefits of exclusion of the Roosevelt Reservation are 
significant. We base this on several reasons. First, the exclusion will 
allow DHS to conduct its mission of securing the border unimpaired from 
the designation of critical habitat for the northern Mexican 
gartersnake. We view this as a significant benefit of exclusion. 
Second, exclusion will allow CBP to continue maintaining border 
infrastructure and patrolling, thereby helping to prevent unauthorized 
trespass and resource destruction to areas adjacent to the Roosevelt 
Reservation that may affect northern Mexican gartersnake habitat. We 
reviewed and evaluated the benefits of inclusion and benefits of 
exclusion for the 60-ft (18-m) Roosevelt Reservation for the DHS to 
conduct its national security operations and have determined the 
benefits of excluding outweigh the benefits of including the areas.

Exclusion Will Not Result in Extinction of the Species--U.S./Mexico 
Border Lands--Roosevelt Reservation

    Because of the 2006 MOU, CBP has a track record of communicating 
with the Service and of remaining committed to seeking solutions to 
reduce harm along the border to listed species, including the northern 
Mexican gartersnake and its habitats. Thus, due to the protections 
provided already under the 2006 MOU, along with the small size of 0.23 
ac (0.09 ha) of the area of the Roosevelt Reservation Area relative to 
the entire Upper Santa Cruz River Subbasin Unit ((380 ac (154 ha)) 
included in the proposed critical habitat designation, we have 
determined that exclusion of the 60-ft (18-m) Roosevelt Reservation 
lands from the critical habitat designation will not result in the 
extinction of the northern Mexican gartersnake. Based on the above 
described analysis, we have determined that the (60-ft (18-m)) 
Roosevelt Reservation within the Santa Cruz River Subunit is excluded 
under section 4(b)(2) of the Act because the benefits of exclusion 
outweigh the benefits of inclusion and will not cause the extinction of 
the species.
II. Department of Army--Fort Huachuca
    We received comments from the U.S. Army installation at Fort 
Huachuca requesting the area outside the installation but within the 
San Pedro River and Babocomari River Subunits for the northern Mexican 
gartersnake be excluded from the final designation. The majority of 
lands within the San Pedro River Subunit are within the San Pedro 
Riparian NCA; a very small amount of lands are privately owned within 
this subunit. Lands within the Babocomari River Subunit are roughly 
equally owned by the BLM (as part of San Pedro Riparian NCA) and 
privately owned, with a very small remainder owned by the Arizona State 
Land Department. Collectively, none of the lands within these two 
subunits are owned by the DoD, part of the lands managed under the Fort 
Huachuca's INRMP, or used for training.
    The Army's rationale for requesting the exclusion was that any 
additional restrictions to groundwater pumping and water usage could 
affect their ability to increase staffing when needed or carry out 
missions critical to national security. In their comments, the Army 
also reiterated its commitment to continue taking appropriate measures 
to benefit the northern Mexican gartersnake, primarily focusing on 
water use reduction measures.
    As stated above, the lands within the San Pedro River Subunit are 
primarily owned and managed by BLM. Declining base flow and habitat 
loss in the San Pedro River due anthropogenic factors, drought, and 
climate change have long been a concern to landowners and communities 
in and near this subunit. In addition, the November 2013 Fort Huachuca 
Revised Biological Assessment (BA) on its operations, titled 
Programmatic Biological Assessment for Ongoing and Future Military 
Operations and Activities at Fort Huachuca, Arizona (U.S. Department of 
the Army 2013, p. 5-39), concluded that Army operations would have a 
neutral or potentially beneficial effect to the San Pedro River's base 
flow in San Pedro Riparian NCA. Regarding the Babocomari River Subunit, 
the Army stated that a reduction of 0.1 cubic feet per second (cfs) 
(attributable to Fort Huachuca operations) could occur by 2030, but was 
offset by conservation measures including the acquisition of 
conservation easements and implementation of urban-enhanced recharge 
measures which were not factored in by the model (U.S. Department of 
the Army 2013, pp. 538-539).
    Additionally, the Fort concluded that the ``modeled decline of 0.1 
cfs is also at the boundary of the estimated numerical noise of the 
groundwater modeling results from -0.1 to +0.1 cfs'' (U.S. Department 
of the Army 2013, p. 39). Ultimately, the BA concluded that ``although 
the Proposed Action may possibly have a minor effect on the northern 
Mexican gartersnake habitat locally on the lower Babocomari River, the 
Proposed Action would not jeopardize the continued existence of the 
proposed species or destroy or adversely modify proposed critical 
habitat'' (U.S. Department of the Army 2013, p. 39). Within our 
subsequent 2014 biological and conference opinion under section 7 of 
the Act, we issued a conference report concurring that Fort Huachuca's 
operational activities and groundwater pumping as related to the San 
Pedro and lower Babocomari rivers were not likely to adversely affect 
or modify proposed critical habitat for the northern Mexican 
gartersnake in either subunit (Service 2014, pp. 274-275). We based our 
conclusion largely on the overall, regional effect of a potential net 
reduction in base flow in the lower Babocomari River and the species' 
natural history as a transient and opportunistic forager.
    Lastly, although the Fort's water conservation measures are 
intended to avoid, minimize, and/or offset the effects of water use to 
the San Pedro River and Babocomari River subunits, they do not 
constitute a northern Mexican gartersnake conservation plan or prevent 
water use or habitat loss by other entities affecting this area. The 
Fort's water conservation actions are not sufficient to protect 
critical habitat from ongoing and future actions from other project 
proponents that could threaten base flow and suitable habitat for the 
northern Mexican gartersnake in these subunits. The Fort does not 
manage or control lands covered by these subunits, and the contribution 
of groundwater to riparian vegetation maintenance is only one component 
of northern Mexican gartersnake PBFs. The Service has engaged in 
several section 7 consultations on proposed actions that may affect 
northern Mexican gartersnake habitat but for which the Fort has no 
management authority, including herbicide treatment, fire management, 
grazing, exotic plant control, mesquite removal, recreation, off-road 
vehicle use, development, and other proposed actions that may result in 
loss of water or suitable habitat. We will continue to engage in future 
consultations that may affect habitat in these active subunits. Given 
the Fort's

[[Page 22549]]

groundwater use has been determined to have no or minimal effects to 
northern Mexican gartersnakes and their habitat, it is unlikely that 
there would be future restrictions on the Fort's groundwater use 
resulting from the designation of critical habitat. Designating 
critical habitat may actually help retain base flow and northern 
Mexican gartersnake habitat, through section 7 consultation with other 
entities affecting these subunits.
    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. If such 
information is provided, we will conduct a discretionary analysis. 
However, here Fort Huachuca requested lands be excluded that were 
outside of the installation and not covered by its INMRP. It then did 
not appropriately support this request. As made clear in the comments 
to the Policy on Exclusions, it is within our discretion to not analyze 
national security requests that are not supported with specific 
justification (81 FR 7226). Accordingly, we are not excluding the area 
from this final rule due to national security.

Consideration 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 or 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. Proposed actions with a Federal nexus 
that may remove or reduce the quality or quantity of critical habitat 
must undergo Section 7 consultation for an adverse modification 
analysis. Similarly, the listing of the northern Mexican gartersnake as 
a threatened species ensures that consultation under the jeopardy 
standard in either section 7 or section 10 of the Act would also be 
required in areas where members of the species are known to occur.
    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 (see Policy Regarding Implementation of 
Section 4(b)(2) of the Endangered Species Act: 81 FR 7226; February 11, 
2016).
    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

    Based on the information provided by entities seeking exclusion, 
any additional public comments we received, and the best scientific 
data available, we evaluated whether certain lands in the critical 
habitat were appropriate for exclusion from this final designation 
under section 4(b)(2) of the Act. If the analysis indicated that the 
benefits of excluding lands from the final designation outweigh the 
benefits of designating those lands as critical habitat, then we 
identified those areas for the Secretary to exercise his or her 
discretion to exclude the lands from the final designation, unless 
exclusion would result in extinction.
    Under section 4(b)(2) of the Act, we considered any other relevant 
impacts, in addition to economic impacts and impacts on national 
security. When looking at ``other relevant impacts'' we considered a 
number of factors including whether there are permitted conservation 
plans covering the species in the area such as HCPs, safe harbor 
agreements (SHAs), or candidate conservation agreements with assurances 
(CCAAs), or whether there are non-permitted conservation agreements and 
partnerships that would be encouraged by designation of, or exclusion 
from, critical habitat (see Policy Regarding Implementation of Section 
4(b)(2) of the Endangered Species Act: 81 FR 7226; February 11, 2016). 
In addition, we looked at the existence of Tribal conservation plans 
and partnerships, and considered the government-to-government 
relationship of the United States with Tribal entities. We also 
considered any social impacts that might occur because of the 
designation.
    In the paragraphs below, we provide a detailed balancing analysis 
of the areas being excluded under section 4(b)(2) of the Act.

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 section 4(b)(2) exclusion analysis. A non-exhaustive list 
of factors that we will consider for non-permitted plans or agreements 
is shown below (see Policy Regarding Implementation of Section 4(b)(2) 
of the Endangered Species Act: 81 FR 7226; February 11, 2016). 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 PBFs (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 NEPA compliance was required.
    (viii) Whether the plan or agreement contains a monitoring program 
and

[[Page 22550]]

adaptive management to ensure that the conservation measures are 
effective and can be modified in the future in response to new 
information.
I. Duck Creek and Gila River Subunits Within the Upper Gila River 
Subbasin Unit--Freeport-McMoRan Management Plan
    Critical habitat was identified for the Gila River (500 ac (202 
ha)) and Duck Creek (15 ac (6 ha)) on Freeport-McMoRan privately owned 
lands where the northern Mexican gartersnake occurs.
    FMC completed their Spikedace and Loach Minnow Management Plan for 
the Upper Gila River (FMC management plan), including Bear Creek and 
Mangas Creek in Grant County, New Mexico, in 2011. The FMC management 
plan was created in response to a proposed rule to designate critical 
habitat for the spikedace and loach minnow along reaches of the Gila 
River, Mangas Creek, and Bear Creek (75 FR 66482; October 28, 2010) 
owned by FMC. Water rights are also included in these land holdings. 
The majority of these lands are owned by Pacific Western Land Company 
(PWLC) and included the U-Bar Ranch, which has been managed under a 
rest-rotation livestock grazing strategy since approximately 1992. The 
focus of management actions pertaining to spikedace and loach minnow 
occur along middle section of the upper Gila River, the perennial 
portion of Mangas Creek, and lower portion of Bear Creek near the 
village of Gila within the Gila-Cliff Valley of New Mexico. No specific 
management actions pertaining to spikedace or loach minnow are proposed 
for Duck Creek in the FMC management plan. Therefore, we focus on 
management actions that pertain to the Gila River. While Duck Creek is 
not mentioned anywhere in the FMC management plan, the PWLC and 
Freeport-McMoRan Tyrone, Inc. own the land along the lowermost river 
mile along Duck Creek (within the U-Bar Ranch) near its confluence with 
the Gila River. Collectively and through existing water diversions, 
these lands and associated water rights support mining operations at 
the Tyrone Mine as well as livestock operations along the Gila River.
    Livestock operations within the U-Bar Ranch consider the needs of 
the southwestern willow flycatcher and are considered to provide 
indirect benefits to spikedace and loach minnow under the FMC 
management plan. For the purposes of this analysis, we will review 
commitments made in the FMC management plan that pertain to spikedace 
and loach minnow, not the southwestern willow flycatcher, due to their 
ecological needs, which more closely overlap those of the northern 
Mexican gartersnake. In the past, FMC has funded fish surveys within 
the U-Bar Ranch along Gila River, as well as Mangas and Bear Creeks. 
The FMC management plan intended to establish a framework for 
cooperation and coordination with the Service in connection with future 
resource management activities based on adaptive management principles. 
FMC lands are closed to public use, which eliminates potential concerns 
for effects to riparian and streambed habitat from off-highway vehicle 
use, camping, and hiking. Access to FMC lands are provided for wildlife 
survey needs.
    The FMC management plan also commits to maintaining base flow in 
the Gila River within its planning area, through a cessation of water 
diversions at the Bill Evans Reservoir diversion, provided two 
conditions are met: (1) The Gila River is flowing at less than 25 cfs 
per day at USGS Gage 09431500, near Redrock, New Mexico (the nearest 
gage downstream from FMC's point of diversion); and (2) the water level 
in Bill Evans Reservoir is at least 4,672 ft above sea level. In the 
event that the first condition is satisfied but the reservoir level is 
below 4,672 ft above sea level, FMC will confer with NMGFD (which owns 
Bill Evans Reservoir) regarding temporary curtailment of water 
diversions. Therefore, maintaining minimum flow in the Gila River is 
not under the sole discretion of FMC. In the event water use changes 
become necessary, FMC provides us with notice of any significant 
changes in its water uses and diversions and will confer about impacts 
of such changes on spikedace and loach minnow habitat.
    FMC has also committed to funding biennial fish surveys and the 
maintenance of survey locations, fisheries biologists, techniques, and 
protocols along the lands associated with the Gila River and provide 
subsequent data to us. Lastly, FMC committed to make reasonable efforts 
to coordinate and encourage adjacent landowners, as well as confer with 
us on opportunities to increase local public awareness, to assist in 
their conservation management and, when appropriate, assist other 
landowners to these ends. The FMC management plan considers adaptive 
management, which includes, if necessary, the development of 
alternative conservation measures at a total cost of $500,000, for 
habitat protection. Summarized, the FMC management plan commits to 
ongoing grazing using rest-rotation at moderate levels, the prohibition 
of public trespass unless for the purposes of surveys and monitoring 
for covered species (the northern Mexican gartersnake is not covered), 
limiting water diversion withdrawals from the Gila River provided 
certain criteria are met (dependent upon discretion of a third party), 
and a commitment to make reasonable efforts to coordinate with other 
landowners in the area on voluntary implementation of conservation 
measures.

Benefits of Inclusion--FMC Management Plan

    As discussed above under Effects of Critical Habitat Designation, 
Section 7 Consultation, Federal agencies, in consultation with the 
Service, must ensure that their actions are not likely to jeopardize 
the continued existence of any listed species or result in the 
destruction or adverse modification of any designated critical habitat 
of such species. The difference in the outcomes of the jeopardy 
analysis and the adverse modification analysis represents the 
regulatory benefit and costs of critical habitat. It is possible that 
in the future, Federal funding or permitting could occur on this 
privately owned land where a critical habitat designation may benefit 
northern Mexican gartersnake habitat. The implementation of potential 
conservation measures or conservation recommendations could provide 
important benefits to the continued conservation and recovery of the 
species in this area.
    Because the northern Mexican gartersnake occurs in this area, the 
benefits of a critical habitat designation are reduced to the possible 
incremental benefit of critical habitat because the designation would 
not be the sole catalyst for initiating section 7 consultation. 
However, should a catastrophic event such as disease, drought, 
wildfire, chemical spill, etc., result in potential or actual 
extirpation of the gartersnake population in this area, designation of 
critical habitat will ensure future Federal actions do not result in 
adverse modification of critical habitat, allowing for future recovery 
actions to occur.
    Another important benefit of including lands in a critical habitat 
designation is that it can serve to educate landowners, agencies, 
Tribes, and the public regarding the potential conservation value of an 
area, and may help focus conservation efforts on areas of high value 
for certain species. Any information about the northern Mexican 
gartersnake that reaches a wide audience, including parties engaged in 
conservation activities, is valuable. The designation of critical 
habitat may also

[[Page 22551]]

affect the implementation of Federal laws, such as the Clean Water Act. 
These laws analyze the potential for projects to significantly affect 
the environment. Critical habitat may signal the presence of important 
sensitive habitat that could otherwise be missed in the review process 
for these other environmental laws.
    There are also specific reasons why the FMC management plan does 
not provide adequate conservation of the northern Mexican gartersnake. 
First, with respect to the northern Mexican gartersnake and Duck Creek, 
Duck Creek is not part of the FMC management plan's planning area; 
therefore, no specific measures have been proposed that would benefit 
the northern Mexican gartersnake in Duck Creek. Additional limitations 
of the FMC management plan include:
     While livestock grazing using modern strategies along with 
regular monitoring are not considered a particular concern for 
gartersnake conservation or recovery, we do not consider sustained 
livestock grazing within the riparian corridor to be a conservation 
benefit for the northern Mexican gartersnake because gartersnakes 
require adequate cover for protection from predators and to assist with 
thermoregulation.
     Fish survey protocols used in the plan (and in general) 
are not designed for gartersnake detection and will only provide data 
on the resident fish community, not specifically gartersnake abundance, 
population densities, or population trends.
     We have not identified camping, hiking, and OHV use as 
significant threats to gartersnake populations. Restricting these uses 
in the planning area only provides the benefit of potentially reducing 
the risk of adverse human-gartersnake interactions that result from 
false species identification (confusion over being venomous) or general 
ophidiophobia (fear of snakes), which is common in the public sphere.
     The decision to change the amount of diverted Gila River 
water in the event of flows reaching 25 cfs or below are contingent 
upon an external entity to the FMC management plan and their desires 
for management of the Bill Evans Reservoir, adding uncertainty to this 
measure in terms of its implementation.
     Benefits of an unquantifiable and therefore unknown effort 
associated with enhancing cooperative conservation with adjacent 
landowners yields high uncertainty pertaining to both implementation of 
the measure and potential benefits realized by its implementation.
     The management plan does not commit to any conservation 
measures that directly address the leading threat facing the northern 
Mexican gartersnake across its range: The presence of predatory 
nonnative aquatic species.

Benefits of Exclusion--FMC Management Plan

    One benefit from excluding FMC-owned lands as northern Mexican 
gartersnake critical habitat is the maintenance and strengthening of 
ongoing conservation partnerships. FMC has demonstrated a willingness 
to partner with the Service in conservation planning for several 
species in Arizona and New Mexico. Examples include becoming a 
conservation partner in the development and implementation of the 
Southwestern Willow Flycatcher Recovery Plan, and by solidifying their 
conservation actions in management plans submitted to us for the 
southwestern willow flycatcher, and for the spikedace and loach minnow 
(2007 and 2011). They have also demonstrated a willingness to conserve 
southwestern willow flycatcher and western yellow-billed cuckoo 
(Coccyzus americanus) habitat at Pinal Creek and to partner with us by 
exploring the initial stages of a habitat conservation plan.
    Our collaborative relationship with FMC in the conservation arena 
makes a difference in our partnership with the numerous stakeholders 
involved in aquatic species recovery and management, and influences our 
ability to form partnerships with others. Concerns over perceived, 
added regulation potentially imposed by critical habitat could harm 
this collaborative relationship.
    Because important areas for gartersnake conservation can occur on 
private lands, collaborative relationships with private landowners can 
be important in order to further recovery. The northern Mexican 
gartersnake and its habitat could benefit in some cases, from voluntary 
landowner management actions that implement appropriate and effective 
conservation strategies. Where consistent with the discretion provided 
by the Act, it is beneficial to implement policies that provide 
positive incentives to private landowners to voluntarily conserve 
natural resources and that remove or reduce disincentives to 
conservation (Wilcove et al. 1996, pp. 1-15; Bean 2002, pp. 1-7). Thus, 
it is important for northern Mexican gartersnake conservation to seek 
out continued conservation partnerships such as these with a proven 
partner, and to provide positive incentives for other private 
landowners who might be considering implementing voluntary conservation 
activities, but who have concerns about incurring incidental regulatory 
or economic impacts should a Federal nexus occur.

Benefits of Inclusion Outweigh the Benefits of Exclusion--FMC 
Management Plan

    We have determined that the benefits of inclusion of the Gila River 
and Duck Creek on private lands managed by FMC outweigh the benefits of 
exclusion based on several factors. First, management prescriptions 
included in the FMC management plan do not apply to Duck Creek, which 
supports occupied northern Mexican gartersnake habitat, as ``Duck 
Creek'' is not mentioned anywhere in the plan; therefore, northern 
Mexican gartersnakes using Duck Creek will not benefit by actions 
proposed in the plan.
    Above, we also outlined several instances where management actions 
set forth in the plan either do not pertain directly to the needs of 
northern Mexican gartersnake critical habitat, do not have the 
necessary assurances that beneficial actions will indeed occur, or 
provide minimal benefits to gartersnake conservation and recovery in 
general.
    After weighing the benefits of inclusion as northern Mexican 
gartersnake critical habitat against the benefits of exclusion, we have 
concluded that the benefits of including Freeport-McMoRan privately 
owned lands on the Gila River (500 ac (202 ha)) and Duck Creek (15 ac 
(6 ha)) outweigh those that would result from excluding these areas 
from critical habitat designation. Therefore, we did not exclude these 
lands from the final designation.
II. Oak Creek Subunit--AGFD's Comprehensive Management Plan for the 
Page Springs Aquatic Resources Complex
    Critical habitat for the northern Mexican gartersnake was 
identified for Oak Creek that includes 142 ac (57 ha) of lands 
privately owned by AGFD where the northern Mexican gartersnake occurs.
    AGFD completed a comprehensive management plan for its Page Springs 
Aquatic Resources Complex (complex) in September 2020. Within this 
complex resides the Bubbling Ponds State Fish Hatchery, purchased in 
1954, which has been occupied by the northern Mexican gartersnake for 
many years. In 2014, AGFD purchased an adjacent, private parcel known 
as the Page Family Property with the objective to protect native 
species, particularly the northern Mexican gartersnake, and to 
propagate

[[Page 22552]]

native fish species (AGFD 2020, p. 3). AGFD's vision for this complex 
is to ``be Arizona's premier aquatic resources facility, and to serve 
as a showcase for expertise in fish production, conservation, and 
research in the Southwest'' (AGFD 2020, p. 3). Their comprehensive 
management plan identified nine objectives developed to support this 
vision: (1) Enhance production of sportfish; (2) enhance captive 
propagation and grow out of native aquatic species; (3) enhance 
research on conservation and propagation of aquatic species; (4) 
continue responsible water management; (5) enhance quality of native 
vegetation; (6) protect and enhance non-production sensitive species; 
(7) increase biosecurity; (8) provide recreation, education, and 
outreach for the public; and (9) provide clear direction for operation, 
maintenance, and communication (AGFD 2020, p. 3). In addition to this 
comprehensive management plan, AGFD committed to additional 
conservation measures specific to the northern Mexican gartersnake in a 
letter to our office dated December 11, 2020. We summarize those 
measures below.
    Currently, AGFD is engaged in the following actions for the complex 
and is committed to continue into the future: (1) Maintain four fallow 
ponds to provide gartersnake habitat; (2) monitor gartersnake 
population and support research on gartersnakes; (3) minimize fish 
culture that involves large (adults) nonnative spiny-rayed fish 
species; (4) provide small trout to the Phoenix Zoo to benefit the 
captive gartersnake population there; (5) maintain overwintering 
habitat in surrounding areas; (6) continue to limit speeds for hatchery 
vehicles and prohibit unauthorized vehicles from driving on the 
property; (7) explore options and implement actions to deter avian 
predation of gartersnakes; (8) provide snake recognition training to 
hatchery staff; (9) manage Page Family Property for the benefit of 
gartersnakes; and (10) increase the potential for releases at the 
hatchery complex as new habitat is created.
    Several native fish species of particular genetic lineages are 
planned for production at the hatchery complex, including loach minnow 
(White River, Upper Gila River--Gila River Forks, San Francisco River, 
Blue River, and Aravaipa Creek), spikedace (Aravaipa and Upper Gila 
River--Gila River Forks), roundtail chub (Gila robusta) (Verde River), 
Gila topminnow (mixed lineage, Red Rock, Middle Santa Cruz, Parker 
Canyon and Sharps Springs), desert pupfish (Cienega de Santa Clara), 
longfin dace (Gila River subbasin), and Sonora sucker (Catostomus 
insignis) (Gila River subbasin) (AGFD 2020, p. 8). Production and 
future stocking of these native fish species are expected to benefit 
the northern Mexican gartersnake where these actions co-occur with 
extant gartersnake populations on the landscape, and are likely to 
provide on-site foraging opportunities for the gartersnake at the 
hatchery complex itself.
    AGFD also intends to enhance the quality of native vegetation on 
the property by removing nonnative plant species and planting native 
plant species that could provide benefits to northern Mexican 
gartersnakes in terms of protective cover and thermoregulatory 
benefits. Of particular benefit is AGFD's plan to create a wetland area 
to benefit northern Mexican gartersnakes and other aquatic species when 
the recently added Page Family Property is developed. Plant species 
suitable for this area might include native cattails, bulrush, and 
sedges (AGFD 2020, p. 16). Should any fish rearing ponds be included on 
this recently added property, AGFD will design them to support native 
vegetation along their shorelines, as feasible, to support their use by 
northern Mexican gartersnakes (AGFD 2020, p. 19).
    By protecting and enhancing non-production sensitive species, AGFD 
plans to expand habitat area for northern Mexican gartersnakes and to 
protect existing northern Mexican gartersnake habitat and the 
gartersnakes inhabiting these areas, particularly overwintering habitat 
that was identified through telemetry-based research. AGFD reports that 
failed piping has allowed adequate water flow into fallow ponds, and 
this has supported wetland growth, and development of habitat for 
northern Mexican gartersnakes. Adult northern Mexican gartersnakes use 
these ponds, and neonates annually emerge from them. AGFD has committed 
to maintaining this flow by relining the water line to support the 
ponds' suitability for continued use by northern Mexican gartersnakes 
(AGFD 2020, p. 17). Continued monitoring of the resident northern 
Mexican gartersnake population is also planned for the hatchery complex 
with the establishment and implementation of a standardized monitoring 
program for northern Mexican gartersnakes, using methods such as 
seasonal live trapping and occasional (every 8 to 10 years) telemetry 
monitoring to increase understanding of gartersnake activity and 
relative abundance (AGFD 2020, p. 17).
    Northern Mexican gartersnakes are exposed to particular threats at 
the hatchery complex that AGFD has committed to minimizing, including 
direct predation from sportfish raised on the property, injury from 
ingestion of spiny-rayed fish raised on the property, mortality 
associated with vehicular strikes by hatchery vehicles (Boyarski 2011, 
pp. 1-3), and domestic cat predation on northern Mexican gartersnakes. 
Northern Mexican gartersnakes have been observed being predated by 
nonnative sportfish (largemouth bass) raised on the hatchery complex 
(Young and Boyarski 2013). In addition, gartersnakes can sustain fatal 
injuries from ingesting spiny-rayed fish (Emmons et al. 2016b, p. 557, 
Fig. 3). To reduce these forms of gartersnake predation on hatchery 
grounds, AGFD has committed to keeping any spiny-rayed fish cultured at 
the hatchery no larger than 2 to 3 inches average in total body length 
to both ensure their spines will not kill a gartersnake attempting to 
forage on them and to reduce the likelihood of direct predation of 
gartersnakes by these spiny-rayed fish (AGFD 2020, p. 18). If larger 
spiny-rayed fish are desired for production, AGFD intends to use only 
one pond at the hatchery for this purpose, and construct snake-proof 
fencing to help keep northern Mexican gartersnakes out to minimize 
predation of gartersnakes by the fish and reduce the risk of potential 
foraging injuries to gartersnakes (AGFD 2020, p. 18). AGFD has also 
committed to limiting the speed of hatchery vehicles on the premises, 
training hatchery staff in gartersnake identification, and evaluating 
domestic cat management on the grounds to reduce predation effects to 
gartersnakes.
    AGFD intends to build ponds specifically for the production of 
native baitfish on the hatchery complex grounds. Adjacent to these 
ponds, AGFD intends to build a ``gartersnake pond'' that will be 
managed specifically for their needs. Its close proximity to the native 
baitfish ponds will provide a valuable foraging area for the 
gartersnakes that will have lower predation risk to foraging 
gartersnakes. In order to minimize the threat of bullfrog predation on 
neonatal, juvenile, and sub-adult size classes of gartersnakes, AGFD 
has committed to seasonally removing and eliminating eggs masses, 
tadpoles, and adult bullfrogs from the facility. In consideration of 
expanding sheltering opportunities for gartersnakes, AGFD will explore 
opportunities to create permanent debris piles or rock piles for

[[Page 22553]]

gartersnake shelter within the footprint of the existing fallow ponds. 
Combined, this suite of management actions will provide additional 
shelter and feeding opportunities while minimizing predation at the 
hatchery on gartersnakes, which is expected to improve body condition, 
survivorship, fecundity, and population density such that this 
population of northern Mexican gartersnakes can serve as a source 
population for adjacent Oak Creek.
    Under AGFD's commitment to public wildlife education, it intends to 
create opportunities for education at the hatchery, including 
interpretive displays at key locations, and to construct or enhance the 
existing visitor center at the hatchery complex (AGFD 2020, p. 23). 
Because the hatchery supports watchable wildlife opportunities for 
northern Mexican gartersnakes using these grounds, we anticipate 
considerable benefits in public education for the species, helping 
ensure continued public support of their conservation and recovery at 
the hatchery and throughout their range in the United States.

Benefits of Inclusion--AGFD's Comprehensive Management Plan for the 
Page Springs Aquatic Resources Complex

    As discussed above under Effects of Critical Habitat Designation, 
Section 7 Consultation, Federal agencies, in consultation with the 
Service, must ensure that their actions are not likely to jeopardize 
the continued existence of any listed species or result in the 
destruction or adverse modification of any designated critical habitat 
of such species. The difference in the outcomes of the jeopardy 
analysis and the adverse modification analysis represents the 
regulatory benefit and costs of critical habitat. A critical habitat 
designation requires Federal agencies to consult on whether their 
activity would destroy or adversely modify critical habitat to the 
point where recovery could not be achieved. Although this is private 
property, consultation is expected to regularly occur whenever our 
Wildlife and Sportfish Restoration Program assists AGFD's actions. 
Therefore, critical habitat could provide additional protection due to 
future Federal actions.
    Because the species occurs in the area, the benefits of a critical 
habitat designation are reduced to the possible incremental benefit of 
critical habitat because the designation would not be the sole catalyst 
for initiating section 7 consultation. However, should a catastrophic 
event such as disease, drought, wildfire, chemical spill, etc., result 
in potential or statistically proven, actual extirpation of the 
northern Mexican gartersnake population in this area, designation of 
critical habitat would ensure future Federal actions do not result in 
adverse modification of critical habitat, allowing for future recovery 
actions to occur.
    Another important benefit of including lands in a critical habitat 
designation is that it can serve to educate landowners, agencies, 
Tribes, and the public regarding the potential conservation value of an 
area, and this may focus and contribute to conservation efforts by 
other parties by clearly delineating areas of high conservation value 
for certain species. Any information about the northern Mexican 
gartersnake and its habitat that reaches a wide audience, including 
other parties engaged in conservation activities, would be considered 
valuable. However, AGFD has already planned a robust educational 
program for the public at the hatchery complex, which should benefit 
the conservation and recovery of the species. For these reasons, 
designation of critical habitat would have few, if any, additional 
benefits beyond those that will result from continued consultation for 
the presence of the species.

Benefits of Exclusion--AGFD's Comprehensive Management Plan for the 
Page Springs Aquatic Resources Complex

    Significant benefits would be realized by excluding this AGFD 
property, including: (1) The area is already conserved to a higher 
standard than that which critical habitat designation would provide; 
(2) managing lands consistent with one regulatory framework instead of 
two streamlines regulatory processes in an area where conservation of 
habitat is already occurring; and (3) encouraging continued meaningful 
collaboration and cooperation in surveys and research as we work 
towards recovery of the species. As mentioned above, AGFD's hatchery 
complex is important to northern Mexican gartersnakes because it has 
supported a reliably detected population for many years. Immediately 
above, we have detailed a significant number of conservation actions 
and their benefits to northern Mexican gartersnakes at the hatchery 
complex that continue or are planned for implementation at the 
hatchery. These actions promote long-term protection and conservation 
of the northern Mexican gartersnake and its habitat at the hatchery.
    Additionally, section 6 of the Act, requires cooperation to the 
maximum extent practicable with the States in carrying out ESA programs 
(Revised Interagency Cooperative Policy Regarding the Role of State 
Agencies in Endangered Species Activities, 81 FR 8663). Thus, it is 
important for northern Mexican gartersnake recovery to build on 
continued conservation activities such as these with a proven State 
partner, and to provide positive incentives for neighboring private 
landowners who might be considering implementing voluntary conservation 
activities, but who have concerns about incurring incidental regulatory 
or economic impacts.
    The benefits of excluding this area from critical habitat will 
encourage continued conservation, land management, and coordination 
with the Service.

Benefits of Exclusion Outweigh the Benefits of Inclusion--AGFD's 
Comprehensive Management Plan for the Page Springs Aquatic Resources 
Complex

    We have determined that the benefits of exclusion of this AGFD 
property, with the implementation of their comprehensive management 
plan, outweigh the benefits of inclusion, because AGFD is currently 
managing northern Mexican gartersnake habitat successfully and is 
committed to maintaining and enhancing that habitat. The benefits of 
including this AGFD property in critical habitat are few and are 
limited to educational benefits since these lands are privately owned 
and thus a trigger for section 7 consultation for adverse modification 
is lacking. The benefits of excluding this area from designation as 
critical habitat for the northern Mexican gartersnake are significant, 
and include managing lands consistent with one regulatory framework 
instead of two streamlines regulatory processes in an area where 
conservation of habitat is already occurring encouraging the 
continuation of adaptive management measures such as monitoring, 
surveys, research, enhancement, and restoration activities that AGFD 
currently implements and plans for the future.
    Through their efforts at the hatchery, AGFD has demonstrated a 
commitment to management practices that have conserved and benefited 
the northern Mexican gartersnake population in that area. In addition, 
AGFD has funded scientific research at the hatchery in order to develop 
data that has contributed to the understanding of habitat use by this 
species. Considering the past and ongoing efforts of management and 
research to benefit the northern Mexican gartersnake, done in

[[Page 22554]]

coordination and cooperation with the Service, we find the benefits of 
excluding portions of the hatchery outweigh the benefits of including 
it in critical habitat.

Exclusion Will Not Result in Extinction of the Species--AGFD's 
Comprehensive Management Plan for the Page Springs Aquatic Resources 
Complex

    We have determined that exclusion of areas of this AGFD property 
will not result in extinction of the species, nor hinder its recovery, 
because its management will ensure the long-term persistence and 
protection of northern Mexican gartersnake habitat at the hatchery and 
because AGFD is committed to greater conservation measures on their 
land than would be available through the designation of critical 
habitat. In addition, as discussed above under Effects of Critical 
Habitat Designation, Section 7 Consultation, if a Federal action or 
permitting occurs, the known presence of northern Mexican gartersnakes 
would require evaluation under the jeopardy standard of section 7 of 
the Act, even absent the designation of critical habitat, and thus will 
protect the species against extinction. Based on the above analysis, we 
have determined that approximately 142 ac (57 ha) of land within the 
Oak Creek Subunit owned by AGFD are excluded under section 4(b)(2) of 
the Act because the benefits of exclusion outweigh the benefits of 
inclusion and will not cause the extinction of the species.

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.
    CCAAs and 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 section 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 (see Policy 
Regarding Implementation of Section 4(b)(2) of the Endangered Species 
Act: 81 FR 7226; February 11, 2016).
I. Post Canyon Subunit--Private Ranch; Safe Harbor Agreement for the 
Chiricahua Leopard Frog
    Critical habitat for the northern Mexican gartersnake was 
identified within the upper San Pedro River Subbasin, including 15 ac 
(6 ha) of private lands where this species occurs.
    This private 79-ac (32-ha) property is enrolled in the AGFD's 
Statewide SHA for the Chiricahua Leopard Frog, via a certificate of 
exclusion which expires in 2025. The ranch owner may choose to re-
enroll at that time. Of the 79 ac (32 ha), 15 ac (6 ha) was proposed as 
critical habitat for the northern Mexican gartersnake. At the time of 
enrollment into the SHA, Chiricahua leopard frogs were not considered 
extant on the property. Three water features occur on the property: A 
water storage tank associated with a groundwater well, and two dry, 
earthen constructed ponds.
    If external funding is secured, the SHA specifies that ``a pond 
will be created for Chiricahua leopard frogs, which will be fed by a 
well and the landowner will commit to maintaining water in the pond 
throughout the year.'' A lined pond was constructed and retrofitted 
with a solar well in 2017, with Partners for Fish and Wildlife funding, 
ensuring a relatively stable aquatic habitat is maintained. A 
Chiricahua leopard frog population has not yet been introduced or 
established in this pond, but other amphibian prey species such as 
toads may use the pond and provide foraging opportunities for resident 
northern Mexican gartersnakes. The landowner is also required to notify 
the AGFD and the Service if nonnative aquatic predators are observed 
using the feature, establish wetland and riparian vegetation around the 
feature, and ensure property access for population monitoring is 
provided.

Benefits of Inclusion--Safe Harbor Agreement for the Chiricahua Leopard 
Frog

    As discussed above under Effects of Critical Habitat Designation, 
Section 7 Consultation, Federal agencies, in consultation with the 
Service, must ensure that their actions are not likely to jeopardize 
the continued existence of any listed species or result in the 
destruction or adverse modification of any designated critical habitat 
of such species. The difference in the outcomes of the jeopardy 
analysis and the adverse modification analysis represents the 
regulatory benefit and costs of critical habitat. A critical habitat 
designation requires Federal agencies to consult on whether their 
activity would destroy or adversely modify critical habitat to the 
point where recovery could not be achieved. Funding from the Partners 
for Fish and Wildlife Program for management activities in this area 
would trigger section 7 consultation, but this has only happened once 
for the construction of a lined pond and solar well in 2017. However, 
we do not anticipate future Federal actions to impact the northern 
Mexican gartersnake. The designation of critical habitat would provide 
a benefit by identifying the geographic area important for the northern 
Mexican gartersnake. Because the species has been listed since 2014, 
areas where the species occurs are well known and land managers 
understand the value of maintaining habitat for the species.
    Because the species occurs in the area, the benefits of a critical 
habitat designation are reduced to the possible

[[Page 22555]]

incremental benefit of critical habitat because the designation would 
not be the sole catalyst for initiating section 7 consultation. 
However, should a catastrophic event such as disease, drought, 
wildfire, chemical spill, etc., result in potential or statistically 
proven, actual extirpation of the gartersnake population in this area, 
designation of critical habitat would ensure future Federal actions do 
not result in adverse modification of critical habitat, allowing for 
future recovery actions to occur.
    SHAs are temporary agreements and do not have assurances for a net 
conservation benefit in the long term. The Certificate of Inclusion 
allows the landowner to return to the baseline of the covered species 
(in this case, 0, because no Chiricahua leopard frogs were found when 
the property was surveyed prior to enrollment in the SHA) at any time 
without repercussions. Additionally, the landowner is not required to 
reenroll in the SHA once their Certificate of Inclusion expires. 
Therefore, designating critical habitat would ensure that this area be 
managed and kept in conservation as long as the northern Mexican 
gartersnake is listed under the Act.
    Another important benefit of including lands in a critical habitat 
designation is that it can serve to educate landowners, agencies, 
Tribes, and the public regarding the potential conservation value of an 
area, and may help focus conservation efforts on areas of high value 
for certain species. Any information about the northern Mexican 
gartersnake that reaches a wide audience, including parties engaged in 
conservation, ranching operations, and sportfishing activities, is 
valuable. The designation of critical habitat may also affect the 
implementation of Federal laws, such as the Clean Water Act. These laws 
analyze the potential for projects to significantly affect the 
environment. Critical habitat may signal the presence of sensitive 
habitat that could otherwise be missed in the review process for these 
other environmental laws; however, the listing of this species and 
consultations that have already occurred will provide this benefit. 
Therefore, in this case, we view the regulatory benefit of a critical 
habitat designation to be largely redundant with the benefit the 
species receives from listing under the Act, with only minimal 
additional benefits.

Benefits of Exclusion--Safe Harbor Agreement for the Chiricahua Leopard 
Frog

    A considerable benefit of excluding this part of the Post Canyon 
Subunit as northern Mexican gartersnake critical habitat is the 
maintenance and strengthening of ongoing conservation partnerships. The 
private landowner signed the SHA in 2015, for a 10-year agreement to 
commit to several conservation actions for the Chiricahua leopard frog 
and installed a lined pond and solar well in 2017. The permittee is 
properly implementing the SHA and is expected to continue to do so for 
the term of the agreement.
    Second, although the northern Mexican gartersnake is not a species 
covered by the SHA, the actions taken by the landowner for the 
Chiricahua leopard frog will similarly benefit the gartersnake. Both 
species require similar aquatic and terrestrial habitat and Chiricahua 
leopard frogs are a prey species of the northern Mexican gartersnake.
    Third, the SHA addresses habitat needs for the species, including 
aquatic and terrestrial habitat, prey, and management of nonnative 
predators. Although a Chiricahua leopard frog population has not yet 
been introduced or established in this pond, other amphibian prey 
species such as toads may use the ponds. The landowner is also required 
to notify the AGFD and the Service if nonnative aquatic predators are 
observed using the feature, establish wetland and riparian vegetation 
around the feature, and ensure property access for population 
monitoring is provided. These actions meet the conservation needs of 
the northern Mexican gartersnake as the snake needs wetland and 
riparian vegetation for protection for predators and thermoregulation 
and is similarly threatened by nonnative aquatic predators, Additional 
monitoring in the area will also benefit our understanding of the 
northern Mexican gartersnake population.
    Moreover, our collaborative relationship with the private landowner 
and AGFD makes a difference in our partnership with the stakeholders 
involved with Chiricahua leopard frog and northern Mexican gartersnake 
management and recovery and influences our ability to form partnerships 
with others.
    Because some important areas with northern Mexican gartersnake 
habitat occur on private lands, collaborative relationships with 
private landowners are important in recovering the species. The 
northern Mexican gartersnake and its habitat are expected to benefit 
from voluntary landowner management actions that implement appropriate 
and effective conservation strategies. Where consistent with the 
discretion provided by the Act, it is beneficial to implement policies 
that provide positive incentives to private landowners to voluntarily 
conserve natural resources and that remove or reduce disincentives to 
conservation (Wilcove et al. 1996, pp. 1-15; Bean 2002, pp. 1-7). Thus, 
it is important for the northern Mexican gartersnake recovery to build 
on continued conservation activities such as these with a proven 
partner, and to provide positive incentives for other private 
landowners who might be considering implementing voluntary conservation 
activities, but who have concerns about incurring incidental regulatory 
or economic impacts.

Benefits of Exclusion Outweigh the Benefits of Inclusion--Safe Harbor 
Agreement for the Chiricahua Leopard Frog

    We have determined that the benefits of exclusion of 15 ac (6 ha) 
of the Post Canyon Subunit with implementation of the private 
landowner's Certificate of Inclusion for enrollment in the statewide 
SHA for the Chiricahua leopard frog outweigh the benefits of inclusion. 
As explained above, the SHA Certificate of Inclusion meets our criteria 
for exclusions for an SHA. The landowner has used Partners for Fish and 
Wildlife funding to construct a lined pond to provide habitat for the 
Chiricahua leopard frog and is committed to maintaining the pond for 
other amphibian prey species for resident northern Mexican 
gartersnakes, notifying AGFD and the Service if nonnative aquatic 
predators are observed using the feature, establishing wetland and 
riparian vegetation around the feature, and ensuring property access 
for population monitoring is provided. These actions serve to manage 
and protect habitat needed for northern Mexican gartersnakes above 
those conservation measures that may be required if the area were 
designated as critical habitat. In making this finding, we have weighed 
the benefits of exclusion against the benefits of including these lands 
as critical habitat.
    Past, present, and future coordination with the landowner has 
provided and will continue to provide sufficient education regarding 
northern Mexican gartersnake habitat conservation needs on these lands, 
such that there would be minimal additional educational benefit from 
designation of critical habitat beyond those achieved from listing the 
species under the Act.
    The incremental conservation and regulatory benefit of designating 
critical habitat on part of the Post Canyon Subunit would largely be 
redundant with the combined benefits of the existing management. 
Therefore, the

[[Page 22556]]

incremental conservation and regulatory benefits of designating 
critical habitat in this area of the Post Canyon Subunit are minimal.
    The benefits of designating critical habitat for the northern 
Mexican gartersnake in this area of the Post Canyon Subunit are 
relatively low in comparison to the benefits of exclusion. The 
mentioned long-term land management commitments and the continuation of 
a conservation partnership will help foster the maintenance and 
development of northern Mexican gartersnake habitat. The pond will 
provide foraging habitat for northern Mexican gartersnakes, and the 
landowner will notify AGFD and the Service if nonnative aquatic 
predators are present. The Certificate of Inclusion outlines actions 
and commits to tasks that will enhance not only the northern Mexican 
gartersnake, but other amphibious and aquatic species and the overall 
health of the ecosystem.
    Exclusion of these lands from critical habitat will help preserve 
and strengthen the conservation partnership we have developed with 
private landowners, and assist AGFD and the Service with fostering 
current and future partnerships and development of management plans.
    Although a critical habitat designation would require Federal 
actions to consult on adverse modification, because of the landowner's 
commitment to continue implementing land management actions that 
maintain habitat for the Chiricahua leopard frog that will also serve 
as northern Mexican gartersnake habitat, the benefits of a critical 
habitat designation on this area of the Post Canyon Subunit are 
minimized. We anticipate that greater northern Mexican gartersnake 
conservation can be achieved through these management actions and 
relationships than through a critical habitat designation on private 
land where activities requiring Federal funding or permitting are 
expected to be rare.
    We are committed to working with private landowners to further 
northern Mexican gartersnake conservation, as well as the conservation 
of other endangered and threatened species. Therefore, in consideration 
of the relevant impact to our partnership and the ongoing conservation 
management practices of private landowners and AGFD, we determined that 
the significant benefits of exclusion of this area from critical 
habitat designation outweigh the benefits of inclusion of the area in 
the designation.

Exclusion Will Not Result in Extinction of the Species--Safe Harbor 
Agreement for the Chiricahua Leopard Frog

    We find that the exclusion of these lands will not lead to the 
extinction of the northern Mexican gartersnake, nor hinder its recovery 
because long-term water and land management commitments will ensure the 
long-term persistence and protection of northern Mexican gartersnake 
habitat in this privately owned area in the Post Canyon Subunit. As 
discussed above under Effects of Critical Habitat Designation, Section 
7 Consultation, if a Federal action or permitting occurs, the known 
presence of northern Mexican gartersnakes would require evaluation 
under the jeopardy standard of section 7 of the Act, even absent the 
designation of critical habitat, and thus will protect the species 
against extinction. Collectively, these elements provide assurances 
that the northern Mexican gartersnake will not go extinct as a result 
of excluding these riparian habitats from the critical habitat 
designation. After weighing the benefits of including this area in the 
critical habitat designation against the benefits of exclusion, we have 
concluded that the benefits of excluding this privately owned area of 
the Post Canyon Subunit with commitments to the SHA outweigh those that 
would result from designating this area as critical habitat. We have 
therefore excluded 15 ac (6 ha) of land from this final critical 
habitat designation pursuant to section 4(b)(2) of the Act.
II. Upper Santa Cruz River Subbasin Unit, Unnamed Wildlife Pond 
Subunit--Safe Harbor Agreement for Desert Pupfish and Gila Topminnow
    Critical habitat for the northern Mexican gartersnake was 
identified within the upper Santa Cruz River Subbasin, which includes 
0.07 ac (0.03 ha) of private land where this species occurs.
    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. Gila topminnow and desert pupfish are prey 
species of the northern Mexican gartersnake. In 2018, this private 
pond, located within a private inholding and surrounded by Coronado 
National Forest lands, was enrolled in the Statewide SHA for topminnow 
and desert pupfish under a Certificate of Inclusion which is valid for 
40 years, or until the year 2058. The pond and associated area 
surrounding it represent 0.7 ac (0.03 ha). As with all properties 
enrolled in this and similar agreements, access is provided for 
stocking and monitoring of covered species. The pond itself is managed 
in a manner conducive to the continued survival of stocked species, as 
per the agreement. There are currently plans to develop an adjacent, 
smaller pond that may serve as an ephemeral breeding habitat for native 
toads or other amphibian species that are prey for northern Mexican 
gartersnakes (Duncan 2020, pers. comm.).

Benefits of Inclusion--Safe Harbor Agreement for Desert Pupfish and 
Gila Topminnow

    As discussed above under Effects of Critical Habitat Designation, 
Section 7 Consultation, Federal agencies, in consultation with the 
Service, must ensure that their actions are not likely to jeopardize 
the continued existence of any listed species or result in the 
destruction or adverse modification of any designated critical habitat 
of such species. The difference in the outcomes of the jeopardy 
analysis and the adverse modification analysis represents the 
regulatory benefit and costs of critical habitat. A critical habitat 
designation requires Federal agencies to consult on whether their 
activity would destroy or adversely modify critical habitat to the 
point where recovery could not be achieved. Should funding from the 
Service be used for management activities in this area, section 7 
consultation would be required. However, because this area covered 
under this SHA is privately owned, we do not anticipate future Federal 
actions to impact the northern Mexican gartersnake. The designation of 
critical habitat would provide a benefit by identifying the geographic 
area important for the northern Mexican gartersnake. However, because 
the species has been listed since 2014, areas where the species occurs 
are well known and land managers understand the value of maintaining 
habitat for the species.
    Because the species occurs in the area, the benefits of a critical 
habitat designation are reduced to the possible incremental benefit of 
critical habitat because the designation would not be the sole catalyst 
for initiating section 7 consultation. However, should a catastrophic 
event such as disease, drought, wildfire, chemical spill, etc., result 
in potential or statistically proven, actual extirpation of the 
northern Mexican gartersnake population in this area, designation of 
critical habitat would ensure future Federal actions do not result in 
adverse

[[Page 22557]]

modification of critical habitat, allowing for future recovery actions 
to occur.
    SHAs are temporary agreements and do not have assurances for a net 
conservation benefit in the long term. The Certificate of Inclusion 
allows the landowner to return to the baseline of the covered species 
(in this case, 0, because no desert pupfish or Gila topminnow were 
found when the property was surveyed prior to enrollment in the SHA) at 
any time without repercussions. Additionally, the landowner is not 
required to reenroll in the SHA once their Certificate of Inclusion 
expires. Therefore, designating critical habitat would ensure that this 
area is managed and kept in conservation as long as the northern 
Mexican gartersnake is listed under the Act.
    Another important benefit of including lands in a critical habitat 
designation is that it can serve to educate landowners, agencies, 
Tribes, and the public regarding the potential conservation value of an 
area, and may help focus conservation efforts on areas of high value 
for certain species. Any information about the northern Mexican 
gartersnake that reaches a wide audience, including parties engaged in 
conservation, ranching operations, and sportfishing activities, is 
valuable. The designation of critical habitat may also affect the 
implementation of Federal laws, such as the Clean Water Act. These laws 
analyze the potential for projects to significantly affect the 
environment. Critical habitat may signal the presence of sensitive 
habitat that could otherwise be missed in the review process for these 
other environmental laws; however, the listing of this species and 
consultations that have already occurred will provide this benefit. 
Therefore, in this case, we view the regulatory benefit of a critical 
habitat designation to be largely redundant with the benefit the 
species receives from listing under the Act, with only minimal 
additional benefits.

Benefits of Exclusion--Safe Harbor Agreement for Desert Pupfish and 
Gila Topminnow

    A considerable benefit of excluding this private pond in the Upper 
Santa Cruz River Subbasin Unit as northern Mexican gartersnake critical 
habitat is the maintenance and strengthening of ongoing conservation 
partnerships. The private landowner signed the SHA in 2018 for a 40-
year agreement to provide access to stock, monitor the species covered 
under the SHA, and manage the pond for the continued survival of 
stocked species. The permittee is properly implementing the SHA and is 
expected to continue to do so for the term of the agreement.
    Although northern Mexican gartersnake is not a species covered by 
the SHA, the actions taken by the landowner for the desert pupfish and 
Gila topminnow will similarly benefit the gartersnake. Both fish 
species and northern Mexican gartersnake require similar aquatic 
habitat provided by the landowner and the fish are a prey species of 
the northern Mexican gartersnake.
    The SHA addresses habitat needs for the species, including aquatic 
and terrestrial habitat, prey, and management of nonnative predators. 
Although desert pupfish and Gila topminnow have not yet been introduced 
or established in this pond, other amphibian prey species of the 
northern Mexican gartersnake, including tiger salamanders, use the 
current pond. The landowner has demonstrated he is committed to 
implementation of the SHA in planning to develop an adjacent, smaller 
pond that may serve as an ephemeral breeding habitat for native toads 
or other amphibian species that are prey for northern Mexican 
gartersnake (Duncan 2020, pers. comm.). The landowner also maintains 
vegetation around the ponds that provides terrestrial habitat for 
northern Mexican gartersnakes.
    Additionally, our collaborative relationship with the private 
landowner and AGFD makes a difference in our partnership with the 
stakeholders involved with desert pupfish, Gila topminnow, and northern 
Mexican gartersnake management and recovery, and influences our ability 
to form partnerships with others.
    Because some important areas with northern Mexican gartersnake 
habitat occur on private lands, collaborative relationships with 
private landowners are important in recovering the species. The 
northern Mexican gartersnake and its habitat are expected to benefit 
from voluntary landowner management actions that implement appropriate 
and effective conservation strategies. Where consistent with the 
discretion provided by the Act, it is beneficial to implement policies 
that provide positive incentives to private landowners to voluntarily 
conserve natural resources and that remove or reduce disincentives to 
conservation (Wilcove et al. 1996, pp. 1-15; Bean 2002, pp. 1-7). Thus, 
it is important for northern Mexican gartersnake recovery to build on 
continued conservation activities such as these with a proven partner, 
and to provide positive incentives for other private landowners who 
might be considering implementing voluntary conservation activities, 
but who have concerns about incurring incidental regulatory or economic 
impacts.

Benefits of Exclusion Outweigh the Benefits of Inclusion--Safe Harbor 
Agreement for Desert Pupfish and Gila Topminnow

    We have determined that the benefits of exclusion of 0.7 ac (0.03 
ha) of this private pond in the Upper Santa Cruz River Subbasin Unit, 
with implementation of the private landowner's Certificate of Inclusion 
for enrollment in the Statewide SHA for the desert pupfish and Gila 
topminnow, outweigh the benefits of inclusion. In our determination, we 
considered and found that the HCP meets our criteria for exclusion for 
SHAs as explained above. The landowner is committed to maintaining the 
pond to serve as habitat for other amphibian prey species for resident 
northern Mexican gartersnakes and to ensuring that property access for 
population monitoring and stocking is provided. These actions serve to 
manage and protect habitat needed for northern Mexican gartersnakes 
above those conservation measures which may be required if the area 
were designated as critical habitat. In making this finding, we have 
weighed the benefits of exclusion against the benefits of including 
these lands as critical habitat.
    Past, present, and future coordination with the landowner has 
provided, and will continue to provide, sufficient education regarding 
northern Mexican gartersnake habitat conservation needs on these lands, 
such that there would be minimal additional educational benefit from 
the designation of critical habitat beyond those achieved from listing 
the species under the Act.
    The incremental conservation and regulatory benefit of designating 
critical habitat on part of the Upper Santa Cruz River Subbasin Unit 
would largely be redundant with the combined benefits of the existing 
management. Therefore, the incremental conservation and regulatory 
benefits of designating critical habitat in the pond are minimal.
    The benefits of designating critical habitat for the northern 
Mexican gartersnake in this area of the Upper Santa Cruz River Subbasin 
Unit are relatively low in comparison to the benefits of exclusion. The 
mentioned long-term land management commitments and the continuation of 
a conservation partnership will help foster the maintenance and 
development of northern Mexican gartersnake habitat. The pond will 
provide foraging habitat for northern Mexican gartersnakes. The 
Certificate of Inclusion outlines actions and commits

[[Page 22558]]

to tasks that will enhance not only the northern Mexican gartersnake, 
but other amphibious and aquatic species and the overall health of the 
ecosystem.
    Exclusion of these lands from critical habitat will help preserve 
and strengthen the conservation partnership we have developed with 
private landowners, and assist AGFD and the Service with fostering 
current and future partnerships and with development of management 
plans.
    Although a critical habitat designation would require Federal 
agencies to consult on adverse modification, because of the low 
likelihood of future actions requiring Federal funding or permitting, 
and the landowner's commitment to continue implementing land management 
actions that maintain northern Mexican gartersnake habitat, the 
benefits of a critical habitat designation on this area of the unit are 
minimized. We anticipate that greater northern Mexican gartersnake 
conservation can be achieved through these management actions and 
relationships than through critical habitat designation on private land 
where actions requiring Federal funding or permitting are expected to 
be rare.
    We are committed to working with private landowners to further 
northern Mexican gartersnake conservation, as well as the conservation 
of other endangered and threatened species. Therefore, in consideration 
of the relevant impact to our partnership and the ongoing conservation 
management practices of private landowners and AGFD, we determined that 
the significant benefits of exclusion outweigh the benefits of 
inclusion in the critical habitat designation.

Exclusion Will Not Result in Extinction of the Species--Safe Harbor 
Agreement for Desert Pupfish and Gila Topminnow

    We find that the exclusion of these lands will not lead to the 
extinction of the northern Mexican gartersnake, nor hinder its 
recovery, because long-term water and land management commitments will 
ensure the long-term persistence and protection of northern Mexican 
gartersnake habitat in this privately owned area in the Upper Santa 
Cruz River Subbasin Unit. In addition, lands are small (0.7 ac (0.03 
ha)) relative to the Santa Cruz River Subbasin Unit as a whole (380 ac 
(154 ha)). As discussed above under Effects of Critical Habitat 
Designation, Section 7 Consultation, if a Federal action or permitting 
occurs, the known presence of northern Mexican gartersnakes would 
require evaluation under the jeopardy standard of section 7 of the Act, 
even absent the designation of critical habitat, and thus will protect 
the species against extinction. Collectively, these elements provide 
assurances that the northern Mexican gartersnake will not go extinct as 
a result of excluding these riparian habitats from the critical habitat 
designation. After weighing the benefits of including this area in 
critical habitat against the benefits of exclusion, we have concluded 
that the benefits of excluding this privately owned pond in the Upper 
Santa Cruz River Subbasin Unit with commitments to the SHA outweigh 
those that would result from designating this area as critical habitat. 
We have therefore excluded 0.7 ac (0.03 ha) of land from this final 
critical habitat designation pursuant to section 4(b)(2) of the Act.
III. Lower Colorado River and Bill Williams River--Lower Colorado River 
Multi-Species Conservation Program (LCR MSCP)
    The Lower Colorado River Multi-Species Conservation Program HCP 
(2004, entire) was developed for areas along the lower Colorado River 
along the borders of Arizona, California, and Nevada, from Lake Mead to 
Mexico, in La Paz, Mohave, and Yuma Counties in Arizona; Imperial, 
Riverside, and San Bernardino Counties in California; and Clark County 
in Nevada. In 1995, U.S. Department of the Interior agencies; water, 
power, and wildlife resources agencies from Arizona, California, and 
Nevada; Native American Tribes; environmental interests; and 
recreational interests agreed to form a partnership to develop and 
implement a long-term endangered species compliance and management 
program for the historical floodplain of the lower Colorado River. The 
goal was to facilitate the development of an ecosystem HCP and 
coordination with the various LCR MSCP Federal partners. Reclamation 
has taken lead for coordinating activities under the LCR MSCP.
    A steering committee provides oversight to Reclamation's LCR MSCP 
program manager, operating under a funding and management agreement 
that was prepared among Federal, State, local, and Tribal party 
participants (LCR MSCP 2007, pp. 1-3). The potentially affected parties 
and other interested parties established a public process for 
developing the required documents and plans. Various public agencies 
and other nongovernmental groups have participated in developing the 
various components of the LCR MSCP. The LCR MSCP primarily covers 
activities associated with water storage, delivery, diversion, and 
hydroelectric production. The record of decision was signed by the 
Secretary of the Interior on April 2, 2005. An important catalyst of 
the effort was a 1997 jeopardy biological opinion for the southwestern 
willow flycatcher issued to Reclamation for lower Colorado River 
operations (Service 2005a, entire). The Federal agencies involved in 
the LCR MSCP include Reclamation, Bureau of Indian Affairs, National 
Park Service, BLM, Western Area Power Administration, and the Service. 
Native American Tribes involved in the LCR MSCP and owning lands within 
the planning area include the Colorado River Indians Tribes, Fort 
Mohave Tribe, Cocopah Tribe, Chemehuevi Tribe, and Fort Yuma (Quechan) 
Tribe.
    On July 8, 2014, the Service listed the northern Mexican 
gartersnake as a threatened species under the Act (79 FR 38678). The 
northern Mexican gartersnake was not included as one of the covered 
species in the LCR MSCP because it was thought to be extirpated within 
the planning area. However, northern Mexican gartersnakes were found on 
the Bill Williams River between Planet Ranch and Alamo Dam in 2012, and 
in 2015, presence of the northern Mexican gartersnake was confirmed at 
the Beal Lake Conservation Area. On October 26, 2016, the LCR MSCP 
steering committee approved initiating discussions with the Service to 
add the northern Mexican gartersnake as a covered species to the LCR 
MSCP for incidental take coverage in all seven reaches of the Lower 
Colorado River. On June 28, 2017, the LCR MSCP steering committee 
directed its chairperson, acting on behalf of the permittees, to 
request an amendment to the section 10(a)(1)(B) permit (Permit) by 
submitting a Federal Fish and Wildlife Permit Application Form and the 
HCP amendment to the Service. On March 5, 2018, the Service finalized 
the amendment package, including section 7 consultation and HCP permit, 
and the northern Mexican gartersnake was included under the LCR MSCP as 
a covered species.
    The LCR MSCP planning area and off-site conservation areas (LCR 
MSCP implementation area) includes proposed northern Mexican 
gartersnake critical habitat along the Colorado River and along the 
Bill Williams River. The LCR MSCP will create and maintain 512 ac (207 
ha) of marsh habitat and 984 ac (399 ha) of associated cottonwood 
willow riparian habitat specifically for the northern Mexican 
gartersnake, provide additional marsh habitat that becomes established 
along margins of 360 ac (146 ha) of backwater habitat that will be 
created for native fish species, and avoid and minimize operational

[[Page 22559]]

and management impacts to the northern Mexican gartersnake over the 50-
year life of the permit (2005 to 2055) (Lower Colorado River Multi-
Species Conservation Program 2004, as amended 2018, pp. 5-30-5-36, 
Table 5-10, pp. 5-58-5-60). Additional research, management, 
monitoring, and protection of northern Mexican gartersnakes will occur 
as a conservation measure. In addition to northern Mexican gartersnake 
habitat creation and subsequent management, the LCR MSCP provides funds 
to ensure existing northern Mexican gartersnake habitat is maintained 
for the life of the program. Northern Mexican gartersnake management 
associated with the LCR MSCP is conducted in conjunction and 
coordination with management occurring on National Wildlife Refuges 
(Bill Williams, Havasu, Cibola, and Imperial), BLM, AGFD, and Corps 
along the LCR Bill Williams River.
    On the Lower Colorado River and Bill Williams River, we identified 
5,943 ac (2,405 ha) of proposed critical habitat for exclusion within 
the LCR MSCP implementation area of La Paz and Mohave Counties. 
Northern Mexican gartersnake management within the proposed units in 
the LCR MSCP planning area occurs on Havasu NWR, and on off-site 
conservation areas along the Bill Williams River including portions of 
the Planet Ranch property owned by AGFD, and BLM, private, and Corps 
lands east of Planet Ranch. These areas are considered to have been 
occupied at the time of listing and are currently occupied.
    Reclamation, in its lead role as program manager for the LCR MSCP, 
requested excluding habitat within the entire 914,200-ac (369,964-ha) 
LCR MSCP implementation area from critical habitat under the rationale 
that conservation measures described in the LCR MSCP HCP provide 
protection and benefits to the northern Mexican gartersnake and its 
habitat (LCRMSCP 2004, as amended 2018, pp. 1-506; Reclamation 2020, p. 
2). Because the entire 914,200-ac (369,964-ha) implementation area was 
not proposed as critical habitat, we are only analyzing exclusion of 
the areas proposed as critical habitat.
    The habitat created by the LCR MSCP is already benefitting the 
northern Mexican gartersnake. Beal Lake Conservation Area on Havasu NWR 
has been colonized by the species. Prior to the LCR MSCP, Beal Lake was 
a 225-ac (91-ha), shallow backwater containing low-quality aquatic 
habitat. Reclamation dredged the lake to improve the habitat for 
razorback sucker (Xyrauchen texanus) and bonytail chub (Gila elegans), 
and then stocked the lake with native fish. Next, Reclamation used 
dredge material to create 106 ac (43 ha) of cottonwood-willow riparian 
habitat, which was planted from 2002-2004 and then augmented by the LCR 
MSCP from 2011-2013 to add moist soil conditions to specifically target 
the habitat requirements of the southwestern willow flycatcher. This 
involved adding a 14-ac (6-ha) marsh patch to the cottonwood-willow 
riparian habitat. Northern Mexican gartersnakes were discovered at 
Havasu NWR near this marsh patch in 2015. The LCR MSCP continues to 
improve habitat at Beal Lake Conservation Area, and in 2018, the Havasu 
NWR and LCR MSCP agreed to expand the conservation area to 
approximately 1,000 ac (405 ha), including additional habitat for the 
northern Mexican gartersnake (Reclamation 2020, p. 8).
    In December 2015, the LCR MSCP acquired a lease for Planet Ranch on 
the Bill Williams River to use a portion of this property for an LCR 
MSCP conservation area. The land and water rights were subsequently 
donated to the Arizona Game and Fish Commission. The acquisition of 
Planet Ranch secured the river corridor so that controlled flood events 
can periodically occur from Alamo Dam for riparian habitat 
establishment and management along the Bill Williams River. In addition 
to the passive restoration of riparian habitat along the Bill Williams 
River expected from these controlled flood events, cottonwood-willow 
habitat will be planted in areas that are not expected to flood. The 
LCR MSCP is constructing four disconnected backwaters adjacent to 
existing cottonwood-willow habitat on Planet Ranch totaling over 60 ac 
(24 ha). While these are being created as refuges for razorback suckers 
and bonytail chub, they will also provide habitat for northern Mexican 
gartersnakes that are currently found within dispersal distance of 
these sites. The ponds are designed to allow marsh vegetation to grow 
in the ponds as cover for the fish but the vegetation can also provide 
cover for gartersnakes and their prey. Public access will be restricted 
at the ponds to avoid introduction of fish and bullfrogs. Native frogs 
and toads are found on Planet Ranch and nearby on the Bill Williams 
River; this segment of the Bill Williams River does not have bullfrogs.
    The portion of the Bill Williams River, from Alamo Dam to the 
confluence with the Colorado River, is of high conservation value for 
partners including the Service, LCR MSCP, AGFD, BLM, Corps, and various 
nongovernmental organizations. All of these entities participate in the 
Bill Williams River steering committee, which meets quarterly to 
coordinate activities impacting this area. Additionally, these 
entities, along with the Service, are cooperating agencies to the 
Corps's amendment to the Alamo Dam Water Control Manual EIS. Amendment 
and planning to this water control manual is currently ongoing, and 
options are being considered that would benefit downstream riparian and 
river areas, and the northern Mexican gartersnake. This area has a long 
history of working with the Service to provide beneficial ecological 
flows, which benefit riparian obligate species, such as the northern 
Mexican gartersnake. The Service and Corps are in early consultation 
for the northern Mexican gartersnake.

Benefits of Inclusion--Lower Colorado River Multi-Species Conservation 
Plan (LCR MSCP)

    As discussed above under Effects of Critical Habitat Designation, 
Section 7 Consultation, Federal agencies, in consultation with the 
Service, must ensure that their actions are not likely to jeopardize 
the continued existence of any listed species or result in the 
destruction or adverse modification of any designated critical habitat 
of such species. The difference in the outcomes of the jeopardy 
analysis and the adverse modification analysis represents the 
regulatory benefit and costs of critical habitat. A critical habitat 
designation requires Federal agencies to consult on whether their 
activity would destroy or adversely modify critical habitat to the 
point where recovery could not be achieved. The areas within the LCR 
MSCP implementation area are occupied by the northern Mexican 
gartersnake and have undergone section 7 consultation. Additionally, 
the Corps is in early consultation with the Service for areas outside 
of the Planet Ranch Conservation area that will be affected by Alamo 
Dam operations. There may be some minor benefits from the designation 
of critical habitat within Havasu NWR along the lower Colorado River 
and along portions of the Bill Williams River (i.e., Havasu NWR and BLM 
lands) for land management actions because of the additional review 
required by Federal actions. As explained above, the northern Mexican 
gartersnake was thought to be extirpated from the LCR MSCP 
implementation until recent discoveries of the species in 2012 on BLM 
lands along the Bill Williams River and in 2018 on Havasu NWR along the 
lower Colorado River. Because these Federal agencies manage open space 
for public use and wildlife,

[[Page 22560]]

the types of actions evaluated would mostly be associated with 
recreation, hunting, habitat management, and public access, as well as 
possibly some land resource use.
    The benefits of northern Mexican gartersnake critical habitat 
designation on lands managed by Federal partners within the LCR MSCP 
implementation area are limited. Inclusion of the northern Mexican 
gartersnake under the LCR MSCP, as amended in 2018, provides habitat 
replacement that offsets predicted habitat loss due to river 
operations, including the Havasu NWR proposed critical habitat reach. 
Reclamation manages lower Colorado River water storage, river 
regulation, and channel maintenance such that the river stays within 
its incised channel and can no longer flow onto the adjacent 
floodplain. As a result, Reclamation has no discretion to change these 
water management actions to allow a better functioning stream that 
would improve marsh habitat and surrounding riparian habitat along the 
LCR, including critical habitat on Havasu NWR. Improving the duration, 
magnitude, and timing of river flow would generate overbank flooding, 
create and recycle marsh and riparian habitat, and, therefore, improve 
the quality and abundance of northern Mexican gartersnake habitat. 
Because of the lack of flooding and the prevention of overbank flows, 
the floodplain can no longer support the pre-dam riparian forest and 
associated marsh habitat.
    While land managers (BLM, NPS, NWRs, and Tribes) along the lower 
Colorado River floodplain conduct discretionary actions on their lands, 
the success of their conservation actions and impacts of other actions 
to restore pre-dam riparian forests are limited by the impacts of water 
management. Overall, the riparian forest and marsh land cover types 
managed by these land management agencies are not expected to be harmed 
further by site-specific land management actions because the quality of 
vegetation has already been degraded. To the extent that remaining 
patches of riparian and marsh cover types, and northern Mexican 
gartersnake habitat, continue to exist, they are of great value for 
snake conservation. As a result, past section 7 consultations on land 
management agency actions within the proposed critical habitat along 
the lower Colorado River show that land management agencies conserve 
existing riparian vegetation and explore innovative strategies outside 
of the restrictions on water management to improve vegetation quality 
that could be used by northern Mexican gartersnakes. Because the 
regulated stream flow has caused habitat degradation and existing water 
management operations prevent any change in water management that can 
improve the riparian forest, land management agencies are unable to 
impact these river flow conditions, nor are they able to impact river 
flow conditions through nondiscretionary mandatory reasonable and 
prudent measures or alternatives resulting from any possible future 
section 7 consultation. Therefore, there are limited benefits to 
designating critical habitat on lands managed by Federal and Tribal 
partners within the LCR MSCP implementation area.
    Another important benefit of including lands in a critical habitat 
designation is that the designation can serve to educate landowners, 
agencies, Tribes, and the public regarding the potential conservation 
value of an area, and may help focus conservation efforts on areas of 
high conservation value for certain species. Critical habitat may 
signal the presence of sensitive habitat that could otherwise be missed 
in the review process for these other environmental laws.
    Some educational and conservation benefits from reinforcing other 
environmental laws and regulations may also be gained from including 
the LCR MSCP implementation area within the northern Mexican 
gartersnake critical habitat designation. However, this conservation 
benefit can also be accomplished through ongoing education being 
conducted by the LCR MSCP. As long as the educational benefit is 
ongoing, the support of other laws and regulations is minimized. 
Ongoing outreach that educates local communities about the LCR MSCP's 
program activities conducted to benefit species along the river 
includes conservation-themed community events, professional 
conferences, Project Water Education for Teachers (WET) workshops, 
school programs, youth conservation corps coordination, volunteer 
opportunities, and outdoor expos (LCR MSCP 2020, pp. 303-304). The 
annual Colorado River Terrestrial and Riparian meeting and Las Vegas 
Science and Technology Festival are two events funded by the MSCP. 
Because this is a fairly new northern Mexican gartersnake management 
area, educating individuals, agencies, and organizations about northern 
Mexican gartersnake biology is paramount and will be an ongoing 
process. In addition, the LCR MSCP in coordination with the Service, 
has developed and maintains a best management practices document and 
framework for the northern Mexican gartersnake. This document provides 
education, and avoidance and minimization measures, for activities 
conducted in sensitive northern Mexican gartersnake occupied habitat.

Benefits of Exclusion--Lower Colorado River Multi-Species Conservation 
Plan (LCR MSCP)

    The benefits of excluding the LCR MSCP management areas from the 
designation are considerable, and include the conservation measures 
described above (land acquisition, management, and habitat development) 
and those associated with implementing conservation through enhancing 
and developing partnerships. The LCR MSCP has a long history of 
security and stability of conservation actions and funding for those 
activities. This stability comes from its myriad partners, cost sharing 
activities, and program structure, as a result of the hybrid nature of 
its section 7 biological opinion and 10(a)(1)(B) HCP permit framework.
    A small benefit of excluding the LCR MSCP lands from critical 
habitat includes some reduction in administrative costs associated with 
engaging in the critical habitat portion of section 7 consultations due 
to the area being occupied and the species being listed as threatened. 
Administrative costs include time spent in meetings, preparing letters 
and biological assessments, HCP amendments, a financial agreement 
amendment, an EIS reassessment, a new implementing agreement, and in 
the case of formal consultations, the development of the critical 
habitat component of a biological opinion.
    The exclusion of the LCR MSCP lands from critical habitat as a 
result of the implementation of the LCR MSCP can help facilitate other 
cooperative conservation activities with other similarly situated dam 
operators or landowners. Continued cooperative relations with the 
States and a myriad of stakeholders is expected to influence other 
future partners and lead to greater conservation than would be achieved 
through multiple site-by-site, project-by-project efforts, and 
associated section 7 consultations. With the current degraded condition 
of the environmental baseline and limitations associated with changes 
to dam operations, the LCR MSCP conservation measures commit the 
program to create and manage at least 5,940 ac (2,404 ha) of 
cottonwood-willow to provide habitat for 14 species including 
terrestrial habitat for the northern Mexican gartersnake (Reclamation 
2020a, p. 7). Of the 5,940 ac (2,404 ha) of cottonwood-willow, 984 ac 
(398 ha) will be created and managed near marshes to

[[Page 22561]]

provide northern Mexican gartersnake habitat (LCR MSCP 2020, p. W-3). 
The program has created 120 ac (49 ha) of cottonwood-willow and 14 ac 
(5.7 ha) of marsh habitat within Havasu NWR, and will also manage 512 
ac (208 ha) of marsh habitat specifically for the northern Mexican 
gartersnake. Marsh associated with backwaters that are disconnected 
from the lower Colorado River channel are the preferred habitat type to 
achieve LCR MSCP conservation goals for this species. Marsh associated 
with disconnected backwaters are managed to limit nonnative aquatic 
predatory species, to the extent practicable.
    The benefits of excluding lands within the LCR MSCP plan area from 
critical habitat designation include recognizing the value of 
conservation benefits associated with these HCP actions; encouraging 
actions that benefit multiple species; encouraging local participation 
in development of new HCPs; and facilitating the cooperative activities 
provided by the Service to landowners, communities, and counties in 
return for their voluntary adoption of the HCP. The additional 
cooperative activities and HCP creation are demonstrated by the highly 
visible LCR MSCP, and an example of this is the inclusion of the 
northern Mexican gartersnake in all seven reaches of the program's 
planning area after documenting presence of the gartersnake in one 
reach of the LCR.
    The LCR MSCP will help generate important status and trend 
information for northern Mexican gartersnake recovery. In addition to 
specific northern Mexican gartersnake conservation actions, the 
development and implementation of this HCP provides regular monitoring 
of northern Mexican gartersnake habitat, distribution, and abundance 
over the 50-year permit. Since the species was first rediscovered on 
Havasu NWR in 2015, northern Mexican gartersnakes, including juveniles, 
have been detected in the 14-acre marsh patch created by the program, 
as well as in Topock Marsh on the NWR.
    Excluding the LCR MSCP implementation area can incentivize other 
entities contemplating partnerships as they see the avoidance of 
additional regulatory burdens once conservation strategies have already 
been agreed to through our permitting process. Private entities are 
motivated to work with the Service collaboratively to develop voluntary 
HCPs because of the regulatory certainty provided by an incidental take 
permit under section 10(a)(1)(B) of the Act with associated ``No 
Surprises'' assurances. This collaboration often provides greater 
conservation benefits than could be achieved through strictly 
regulatory approaches, such as critical habitat designation. The 
conservation benefits resulting from this collaborative approach are 
built upon a foundation of mutual trust and understanding. It has taken 
considerable time and effort to establish this foundation of mutual 
trust and understanding, which is one reason it often takes several 
years to develop a successful HCP. Excluding this area from critical 
habitat would help promote and honor that trust that we have built with 
our HCP partners by providing greater certainty for permittees that, 
once appropriate conservation measures have been agreed to and 
consulted on for listed and sensitive species, additional consultation 
will not be necessary.
    Our collaborative relationships with the LCR MSCP permittees 
clearly make a difference in our partnership with the numerous 
stakeholders involved and influence our ability to form partnerships 
with others. Concerns over perceived added regulation potentially 
imposed by critical habitat after working to ensure that the 
conservation needs of the species are met could harm this collaborative 
relationship and lead to distrust. Our experience has demonstrated that 
successful completion of one HCP has resulted in the development of 
other conservation efforts and HCPs with other landowners. Partners 
associated with the LCR MSCP also established HCPs with the Service in 
central Arizona.
    The benefits of excluding this HCP from critical habitat 
designation include relieving Federal agencies, State agencies, 
landowners, communities, and counties of any additional regulatory 
burden for water management actions that might be imposed by critical 
habitat. The LCR MSCP took many years to develop and, upon completion, 
became a river-long conservation plan that will pave the way to define 
northern Mexican gartersnake recovery objectives within the 
implementation area. This HCP provides northern Mexican gartersnake 
conservation benefits and commitments toward habitat development and 
management, and northern Mexican gartersnake surveys and studies that 
could not be achieved through project-by-project section 7 
consultations. Imposing an additional regulatory review after the HCP 
is completed, solely as a result of the designation of critical 
habitat, may undermine conservation efforts and partnerships in many 
areas. In fact, it could result in the loss of species' benefits if 
future participants abandon the voluntary HCP process. Designation of 
critical habitat along the LCR and Bill Williams River could be viewed 
as a disincentive to those entities currently developing HCPs or 
contemplating them in the future. We find the section 7 consultation 
process for a designation of critical habitat, above and beyond that 
which is already required for the species, is unlikely to result in 
additional protections for the northern Mexican gartersnake on lands 
within the LCR MSCP planning and implementation area (which includes 
Service, BLM, and non-Federal lands).

Benefits of Exclusion Outweigh the Benefits of Inclusion--Lower 
Colorado River Multi-Species Conservation Plan (LCR MSCP)

    We have determined that the benefits of excluding the LCR MSCP 
implementation area along the lower Colorado River within the States of 
Arizona and California from the designation of northern Mexican 
gartersnake critical habitat on all Federal, State, and non-Federal 
lands outweigh the benefits of inclusion. In our determination, we 
considered and found that the HCP meets our criteria for exclusion for 
HCPs. First, the LCR MSCP meets the criteria for Reclamation and the 
MSCP partners are properly implementing the HCP and are expected to 
continue to do so for the term of the agreement. Second, northern 
Mexican gartersnake is a covered species under the 50-year permit for 
the LCR MSCP. Third, the LCR MSCP specifically addresses the habitat of 
northern Mexican gartersnakes, and meets conservation needs of the 
species. Conservation actions included within the LCR MSCP 
implementation area, combined with the conservation efforts of other 
land managers, have already created and will continue to create and 
manage habitat that benefits the northern Mexican gartersnake and other 
native aquatic and riparian-dependent species. Each of these criteria 
are further explained below.
    Under section 7 of the Act, critical habitat designation will 
provide little additional benefit to the northern Mexican gartersnake 
within the boundaries of the LCR MSCP. The catalyst for the LCR MSCP 
was largely a result of the jeopardy biological opinion (Service 1997, 
entire) for the southwestern willow flycatcher we provided to 
Reclamation for its LCR operations (Service 2005a, entire). The 
Colorado River is managed and operated under numerous compacts, Federal 
laws, court decisions and decrees, contracts, and regulatory guidelines 
collectively known as the ``Law of the

[[Page 22562]]

River'' (LCR MSCP 2004, as amended 2018). The Law of the River, which 
protects the regulation and delivery of Colorado River water to the 
western United States, prevents altering the regulation of the Colorado 
River for the benefit of a more naturally functioning system, which can 
create and recycle marsh and riparian habitat cover types and northern 
Mexican gartersnake habitat. As a result, the LCR MSCP and its 
implementing agreement are designed to ensure northern Mexican 
gartersnake conservation within the planning area and include 
management measures to protect, restore, enhance, manage, research, and 
monitor northern Mexican gartersnake habitat (along the Colorado River 
and at mitigation sites).The adequacy of LCR MSCP's conservation 
measures to protect the northern Mexican gartersnake and its habitat 
have undergone evaluation under a section 7 consultation under the Act, 
reaching a non-jeopardy conclusion. Therefore, the benefit of including 
the LCR MSCP implementation area to require section 7 consultation for 
critical habitat is minimized.
    The commitment by the LCR MSCP partners to northern Mexican 
gartersnake conservation throughout the implementation area, and not 
just within proposed critical habitat, is considerable (see the 
introductory statement under Private or Other Non-Federal Conservation 
Plans Related to Permits Under Section 10 of the Act, above). The LCR 
MSCP partners commit through implementation of their permit to 
developing, managing, and protecting 1,227 ac (497 ha) of northern 
Mexican gartersnake habitat consisting of cottonwood-willow and marsh 
land cover types within the boundaries of their implementation area 
(LCR MSCP 2004, as amended 2018).
    This HCP involved public participation through public notices and 
comment periods associated with the NEPA process prior to being 
approved. Additionally, this HCP, which took about a decade to 
complete, is one of the largest HCPs in the country, and the only 
hybrid (section 7 and 10(a)(1)(B) permit), with an extensive list of 
stakeholders and permittees from California, Arizona, and Nevada. 
Therefore, the agencies, States, counties, cities, and other 
stakeholders that manage the habitat are aware of the importance of 
portions of the LCR MSCP implementation area for the northern Mexican 
gartersnake. For these reasons, although we have determined that 
designation of critical habitat along the LCR MSCP implementation area 
would provide some additional educational benefit, much of this is 
already occurring through the LCR MSCP.
    Covered activities under the LCR MSCP are not the only possible 
impacts to northern Mexican gartersnake habitat along the lower 
Colorado River on Havasu NWR and along Bill Williams River. There are 
projects that were developed, funded, permitted, and implemented by 
Federal agencies such as Reclamation, BLM, and the Service currently 
ongoing that are not covered by the LCR MSCP. Fire management, habitat 
restoration, recreation, and other activities have the ability to 
adversely affect the northern Mexican gartersnake and critical habitat. 
Minor changes in habitat restoration, fire management, and recreation 
could occur as result of a critical habitat designation in the form of 
additional discretionary conservation recommendations to reduce impacts 
to critical habitat. Therefore, if any portions of the LCR MSCP 
implementation area were designated as critical habitat, there may be 
some benefit through consultation under the adverse modification 
standard for actions not covered by the LCR MSCP.
    Excluding the proposed critical habitat areas for the northern 
Mexican gartersnake in the LCR MSCP implementation area would eliminate 
some small additional administrative effort and cost during the 
consultation process pursuant to section 7 of the Act. Excluding these 
areas of the LCR MSCP implementation area would continue to help foster 
development of future HCPs and strengthen our relationship with 
Arizona, California, and Nevada permittees and stakeholders, 
eliminating regulatory uncertainty associated with permittees and 
stakeholders. Excluding these areas of the LCR MSCP implementation area 
also would eliminate any possible risk to water storage, delivery, 
diversion, and hydroelectric production to Arizona, California, and 
Nevada, and thereby would eliminate significant potential economic 
costs due to a critical habitat designation. We have, therefore, 
concluded that the benefits to the northern Mexican gartersnake and its 
habitat as result of the improvement, maintenance, and management 
activities attributed to the LCR MSCP, and those additional efforts 
conducted by NWRs, BLM, and other land managers, outweigh those that 
would result from the addition of a critical habitat designation. As 
such, we have excluded these lands from the final critical habitat 
designation pursuant to section 4(b)(2) of the Act.

Exclusion Will Not Result in Extinction of the Species--Lower Colorado 
River Multi-Species Conservation Plan (LCR MSCP)

    We have determined that exclusion of the Colorado River and Bill 
Williams River within the LCR MSCP implementation area will not result 
in extinction of the northern Mexican gartersnake. As discussed above 
under Effects of Critical Habitat Designation, Section 7 Consultation, 
if a Federal action or permitting occurs, the known presence of the 
northern Mexican gartersnake would require evaluation under the 
jeopardy standard of section 7 of the Act, even absent the designation 
of critical habitat, and thus will protect the species against 
extinction. Second, the amount of northern Mexican gartersnake habitat 
being created as result of implementing the LCR MSCP, combined with 
management by other land managers, is expected to be able to provide 
substantial aquatic and terrestrial habitat for the species. The 
implementing agreement establishes a 50-year commitment to accomplish 
these tasks. Overall, we expect greater northern Mexican gartersnake 
conservation through these commitments than through project-by-project 
evaluation resulting from a critical habitat designation. Accordingly, 
we have determined that the LCR MSCP area should be excluded under 
section 4(b)(2) of the Act because the benefits of exclusion outweigh 
the benefits of inclusion and will not cause the extinction of the 
species. Therefore, we are excluding the entire Lower Colorado River 
Unit (4,467 ac (1,808 ha)) that occurs in the LCR MSCP implementation 
area along the Colorado River, and a portion of the Bill Williams River 
Unit (1,476 ac (597 ha)) that occurs in the LCR MSCP off-site 
conservation area from the final critical habitat designation.
IV. Santa Cruz River, Unnamed Drainage and Pasture 9 Tank, Unnamed 
Drainage and Sheehy Spring Subunits--San Rafael Ranch Low-Effect 
Habitat Conservation Plan
    Critical habitat for the northern Mexican gartersnake was 
identified within the Upper Santa Cruz River Subbasin Unit that 
includes 116 ac (47 ha) of private lands on the San Rafael Ranch where 
this species occurs.
    Completed in 2015, the San Rafael Ranch low-effect HCP outlines a 
30-year strategy to continue cattle ranching operations on the San 
Rafael Ranch while providing habitat conditions favorable to the 
management and restoration of several listed and unlisted

[[Page 22563]]

species. Covered species are all associated with riparian and aquatic 
habitat and include the northern Mexican gartersnake, Sonoran tiger 
salamander (Ambystoma mavortium stebbinsi), Gila chub (Gila 
intermedia), Huachuca springsnail (Pyrgulopsis thompsoni), Canelo 
Hill's ladies' tresses (Spiranthes delitescens), and Huachuca water 
umbel (Lilaeopsis schaffneriana var. recurva). In addition, portions of 
the San Rafael Ranch are enrolled, under Certificate of Inclusion, in 
the Statewide SHAs for Chiricahua leopard frog and Gila topminnow to 
provide conservation incentives and benefits for these two gartersnake 
prey species. Collectively, these plans and agreements provide a 
conservation strategy that supports the needs of many species, 
including the northern Mexican gartersnake and its important prey 
species.
    Habitat in this planning area has been improved by conservation-
based grazing practices, including grazing at sustainable levels, 
adding new water sources, and deferring grazing in riparian pastures 
from April to November each year. These practices have provided a net 
increase of wetted area and improved riparian and upland habitat that 
provide more opportunity for aquatic species to expand, or to be 
reintroduced, within the planning area. Maintaining and managing 
constructed ponds in the planning area is of particular benefit to the 
northern Mexican gartersnake because these water sources become more 
drought-resistant and provide reliable habitat for primary prey species 
including Sonora tiger salamanders, various anurans, and native fish. 
In addition to managing and maintaining water sources, the San Rafael 
Cattle Company added 21 water sources to the planning area, which 
improves livestock distribution and lessens impacts of grazing, as well 
as increases foraging opportunities for northern Mexican gartersnakes. 
The use of fencing around many dirt tanks has led to improved cover 
conditions that benefit the northern Mexican gartersnake. Lastly, the 
San Rafael Ranch low-effect HCP fosters the removal of nonnative 
aquatic predatory species, which is critical to the conservation and 
recovery of northern Mexican gartersnakes.

Benefits of Inclusion--San Rafael Ranch Low-Effect Habitat Conservation 
Plan

    As discussed above under Effects of Critical Habitat Designation, 
Section 7 Consultation, Federal agencies, in consultation with the 
Service, must ensure that their actions are not likely to jeopardize 
the continued existence of any listed species or result in the 
destruction or adverse modification of any designated critical habitat 
of such species. The difference in the outcomes of the jeopardy 
analysis and the adverse modification analysis represents the 
regulatory benefit and costs of critical habitat. A critical habitat 
designation requires Federal agencies to consult on whether their 
activity would destroy or adversely modify critical habitat to the 
point where recovery could not be achieved. As this is a private 
property, consultation would be rare, and critical habitat is not 
anticipated to have much effect due to lack of Federal actions. Given 
the anticipated lack of section 7 consultation, the dependence on 
private conservation actions is more important.
    Because the northern Mexican gartersnake occurs in the area, the 
benefits of a critical habitat designation are reduced to the possible 
incremental benefit of critical habitat because the designation would 
not be the sole catalyst for initiating section 7 consultation. 
However, should a catastrophic event such as disease, drought, 
wildfire, chemical spill, etc., result in potential or statistically 
proven, actual extirpation of the gartersnake population in this area, 
designation of critical habitat would ensure future Federal actions do 
not result in adverse modification of critical habitat, allowing for 
future recovery actions to occur.
    Another important benefit of including lands in a critical habitat 
designation is that it can serve to educate landowners, agencies, 
Tribes, and the public regarding the potential conservation value of an 
area, and this may focus and contribute to conservation efforts by 
other parties by clearly delineating areas of high conservation value 
for certain species. Any information about the northern Mexican 
gartersnake and its habitat that reaches a wide audience, including 
other parties engaged in conservation activities, would be considered 
valuable. The San Rafael Ranch is already working with the Service to 
address the conservation and recovery of the species. For these 
reasons, designation of critical habitat would have few, if any, 
additional benefits beyond those that will result from continued 
consultation for the presence of the species.

Benefits of Exclusion--San Rafael Ranch Low-Effect Habitat Conservation 
Plan

    A considerable benefit of excluding portions of the Santa Cruz 
River Subbasin Unit as northern Mexican gartersnake critical habitat is 
the maintenance and strengthening of ongoing conservation partnerships. 
As mentioned above, the San Rafael Ranch is an important land manager 
in southern Arizona. The San Rafael Ranch has improved habitat by 
conservation-based grazing practices, which include grazing at 
sustainable levels, adding new water sources, and deferring grazing in 
riparian pastures from April to November each year. These practices 
have provided a net increase of wetted area and improved riparian and 
upland habitat, which provide more opportunity for aquatic species to 
expand or to be reintroduced. Maintaining and managing constructed 
ponds is of particular benefit to the northern Mexican gartersnake 
because these water sources become more drought-resistant and provide 
reliable habitat for primary prey species including Sonora tiger 
salamanders, various anurans, and native fish. In addition to managing 
and maintaining water sources, 21 water sources have been added, which 
improves livestock distribution and lessens impacts of grazing, as well 
as increases foraging opportunities for northern Mexican gartersnakes. 
The use of fencing around many dirt tanks has led to improved cover 
conditions that benefit the northern Mexican gartersnake. Lastly, the 
San Rafael Ranch low-effect HCP fosters the removal of nonnative 
aquatic predatory species, which is critical to the conservation and 
recovery of northern Mexican gartersnakes. These activities promote 
long-term protection and conserve the northern Mexican gartersnake and 
its habitat on the San Rafael Ranch.
    Because important areas with northern Mexican gartersnake habitat 
occur on private lands, collaborative relationships with private 
landowners are important in recovering the species. The northern 
Mexican gartersnake and its habitat are expected to benefit from 
voluntary landowner management actions that implement appropriate and 
effective conservation strategies. Where consistent with the discretion 
provided by the Act, it is beneficial to implement policies that 
provide positive incentives to private landowners to voluntarily 
conserve natural resources and that remove or reduce disincentives to 
conservation (Wilcove et al. 1996, pp. 1-15; Bean 2002, pp. 1-7). Thus, 
it is important for northern Mexican gartersnake recovery to build on 
continued conservation activities such as these with a proven partner, 
and to provide positive incentives for other private landowners who 
might be considering implementing voluntary

[[Page 22564]]

conservation activities, but who have concerns about incurring 
incidental regulatory or economic impacts.
    The benefits of excluding this area from critical habitat will 
encourage the continued conservation, land management, and coordination 
with the Service. If this area is designated as critical habitat, we 
may jeopardize future conservation and information sharing for the 
recovery of the northern Mexican gartersnake.

Benefits of Exclusion Outweigh the Benefits of Inclusion--San Rafael 
Ranch Low-Effect Habitat Conservation Plan

    We have determined that the benefits of exclusion of the San Rafael 
Ranch, with the implementation of their low-effect HCP, outweigh the 
benefits of inclusion. In our determination, we considered and found 
that the HCP meets our criteria for exclusion for HCPs. As explained 
above, the private landowner is properly implementing the HCP and is 
expected to do so for the term of the 30-year agreement, the northern 
Mexican gartersnake is a covered species under the 30-year permit, and 
the HCP specifically addresses the habitat of the species and meets 
conservation needs of the species. The San Rafael Ranch is currently 
managing northern Mexican gartersnake habitat successfully and is 
committed to maintaining and enhancing habitats to benefit all native 
wildlife. The benefits of including the San Rafael Ranch in critical 
habitat are few, and are limited to educational benefits since these 
lands are privately owned and thus a trigger for section 7 consultation 
for adverse modification is lacking. The benefits of excluding this 
area from designation as critical habitat for the northern Mexican 
gartersnake are significant, and include encouraging the continuation 
of adaptive management measures such as monitoring, surveys, 
enhancement, and restoration activities that the San Rafael Ranch 
currently implements and plans for the future. The exclusion of this 
area will likely also provide additional benefits to the species by 
encouraging and maintaining a cooperative working relationship with the 
San Rafael Ranch.
    Through their efforts, the San Rafael Ranch has demonstrated a 
commitment to management practices that have conserved and benefited 
the northern Mexican gartersnake population in that area. In addition, 
the San Rafael Ranch had privately funded scientific research at the 
Ranch in order to develop data that have contributed to the 
understanding of habitat dynamics and their role in sustaining native 
wildlife. Considering the past and ongoing efforts of management to 
benefit the northern Mexican gartersnake, done in coordination and 
cooperation with the Service, we find the benefits of excluding 
portions of the San Rafael Ranch outweigh the benefits of including 
them in critical habitat.

Exclusion Will Not Result in Extinction of the Species--San Rafael 
Ranch Low-Effect Habitat Conservation Plan

    We have determined that exclusion of areas of the San Rafael Ranch 
will not result in extinction of the northern Mexican gartersnake, nor 
hinder its recovery, because management will ensure the long-term 
persistence and protection of northern Mexican gartersnake habitat at 
the San Rafael Ranch and because the San Rafael Ranch is committed to 
greater conservation measures on their land than would be available 
through the designation of critical habitat. In addition, as discussed 
above under Effects of Critical Habitat Designation, Section 7 
Consultation, if a Federal action or permitting occurs, the known 
presence of northern Mexican gartersnakes will require evaluation under 
the jeopardy standard of section 7 of the Act, even absent the 
designation of critical habitat, and thus will protect the species 
against extinction. Accordingly, we have determined that approximately 
116 ac (47 ha) of land within the Santa Cruz River Subunit, Unnamed 
Drainage and Pasture 9 Tank Subunit, and Unnamed Drainage and Sheehy 
Spring Subunit owned by the San Rafael Ranch are excluded under section 
4(b)(2) of the Act because the benefits of exclusion outweigh the 
benefits of inclusion and will not cause the extinction of the species.
V. Verde River Subunit Within the Verde River Subbasin Unit--Salt River 
Project Camp Verde Riparian Preserve (Roosevelt HCP)
    Critical habitat for the northern Mexican gartersnake was 
identified within the Verde River Subbasin, including 96 ac (39 ha) of 
private lands owned by the Salt River Project (SRP) covered by the 
Service-approved Roosevelt HCP for the northern Mexican gartersnake, in 
areas where the species occurs. In the revised proposed critical 
habitat rule (85 FR 23608; April 28, 2020), we identified this area as 
one to be considered for exclusion. In response to the identification 
of the area as one to be considered for exclusion, permittees of the 
Roosevelt HCP requested that the critical habitat within the SRP Camp 
Verde Riparian Preserve (Preserve) be designated as critical habitat 
for the northern Mexican gartersnake. The commenters expressed that a 
designation of critical habitat on the Preserve would assist the 
public's understanding of the importance of year-round protection for 
the riparian habitat that supports the northern Mexican gartersnake 
population, as well as flycatchers and cuckoos that are present on the 
property. Accordingly, we have determined not to consider this area for 
exclusion, and therefore no additional discretionary analysis regarding 
exclusion is warranted (see Policy Regarding Implementation of Section 
4(b)(2) of the Endangered Species Act: 81 FR 7226; February 11, 2016).
VI. Cienega Creek Subunit Within the Cienega Creek Subbasin Unit--Pima 
County Cienega Creek Natural Preserve (Pima County Multi-Species 
Conservation Plan (MSCP))
    Critical habitat for the northern Mexican gartersnake was 
identified within the Cienega Creek Subbasin, including 543 ac (220 ha) 
of private lands in areas where the species occurs. These private lands 
include lands owned by permittees of the Service-approved section 10 
Pima County MSCP. In the revised proposed critical habitat rule (85 FR 
23608; April 28, 2020), we identified approximately 12 mi (19 km) of 
Cienega Creek within 543 ac (220 ha) of the Cienega Creek Subunit of 
the Cienega Creek Subbasin Unit owned by Pima County Regional Flood 
Control District covered by the Pima County MSCP for the northern 
Mexican gartersnake.
    Pima County commented on inclusion of this area stating that 
maintaining northern Mexican gartersnake critical habitat on lands 
managed by the Pima County Regional Flood Control District would not 
impact their section 10(a)(1)(B) permit or their partners. Because 
there would not be impacts to their 10(a)(1)(B) permit, the permittees 
in these lands requested that the critical habitat within the Cienega 
Creek Natural Area managed by Pima County Regional Flood Control 
District that falls within the Pima County MSCP planning area be 
designated as critical habitat and not be excluded. Accordingly, we 
have determined not to consider this area for exclusion, and therefore 
no additional discretionary analysis regarding exclusion is warranted 
(see Policy Regarding Implementation of Section 4(b)(2) of the 
Endangered Species Act: 81 FR 7226; February 11, 2016).

Tribal Lands

    Several Executive Orders, Secretarial Orders, and policies concern 
working with Tribes. These guidance documents generally confirm our 
trust

[[Page 22565]]

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. When we 
undertake a discretionary 4(b)(2) exclusion analysis, we will always 
consider exclusion of Tribal lands, and give great weight to Tribal 
concerns in analyzing the benefits of exclusion. However, Tribal 
concerns are not a factor in determining what areas, in the first 
instance, meet the definition of ``critical habitat.''
    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 section 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 (Policy Regarding Implementation of 
Section 4(b)(2) of the Endangered Species Act, (81 FR 7226; February 
11, 2016)).
    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 PBFs 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. Our Policy on Exclusion 
similarly makes clear that while giving great weight to Tribal 
concerns, such concerns are not a factor in determining what areas, in 
the first instance, meet the definition of ``critical habitat''. Policy 
Regarding Implementation of Section 4(b)(2) of the Endangered Species 
Act, (81 FR 7226; February 11, 2016).
Verde River Subunit--Yavapai-Apache Nation Tribal Lands Management
    We identified 225 ac (91 ha) of northern Mexican gartersnake 
critical habitat that occurs on Yavapai-Apache Nation lands within 
portions of the Verde River Subunit. The governing body of the Yavapai-
Apache Nation developed Resolution No. 46-2006, in 2006, entitled, ``A 
Resolution Confirming and Declaring a Riparian Conservation Corridor 
and Management Plan for the Verde River.''
    Prior to the incursion of non-Indians into their territory, the 
Yavapai-Apache Nation notes that their people lived and prospered for 
many centuries along the Verde River and its tributaries without 
depleting the river system or harming its riparian habitat and the many 
plant and animal species it supports (Montgomery & Interpreter, PLC 
2020, p. 2). Today, the Yavapai-Apache Nation is only a small portion 
of lands considered as historical Yavapai-Apache Nation lands and 
currently totals a little over 1,800 ac (728 ha) in Arizona. The Verde 
River and its tributaries serve as a primary source of the Yavapai-
Apache Nation's water supply and is integral in the preservation of the 
Yavapai-Apache Nation's values. The Yavapai-Apache Nation has 
implemented strong conservation measures on their lands to preserve the 
Verde River for the benefit of all species and to protect the practices 
of the Yavapai-Apache Nation. The Yavapai-Apache Nation is aware of the 
threats facing the Verde River and adjacent lands, the Yavapai-Apache 
Nation's impacts on the riparian habitat and food availability, and the 
area's suitability for the northern Mexican gartersnake and its habitat 
(Montgomery and Interpreter, PLC 2020).
    The Yavapai-Apache Nation continues to preserve those portions of 
the Verde River under its jurisdiction along with the plants and 
animals associated with the river. The previously mentioned Tribal 
Resolution No. 46-2006 formally designates a ``Riparian Conservation 
Corridor'' extending from the center of the river outward for 300 
lateral ft (91 lateral m) on either side of the bank full stage of the 
Verde River (Yavapai-Apache Nation 2006, entire; Montgomery and 
Interpreter PLC, 2020, pp. 5-6). This resolution essentially codified 
in Tribal law certain land use restrictions and management goals for 
the Verde River that had long been in place on Yavapai-Apache Nation 
lands. Within the Riparian Conservation Corridor, those activities that 
are harmful to the health of the riparian area are discouraged or 
prohibited outright in order to protect the corridor's natural habitat 
and the animal and plant species that depend on it, including the 
northern Mexican gartersnake. The Yavapai-Apache Nation has taken steps 
to protect northern Mexican gartersnake habitat along the Verde River 
through zoning, which implements Tribal ordinances and code 
requirements.
    On May 25, 2005, the Yavapai-Apache Nation formally adopted a 
southwestern willow flycatcher management plan, which was subsequently 
amended and updated in 2012 to include conservation for the western 
yellow-billed cuckoo under Tribal resolution No. 156-12. The purpose of 
the Yavapai-Apache Nation's southwestern willow flycatcher management 
plan is to promote the PBFs that will maintain southwestern willow 
flycatcher and western yellow-billed cuckoo habitat. The strategy of 
the plan is not to allow any net loss or permanent impacts to riparian 
habitat by implementing measures from the Service's southwestern willow 
flycatcher recovery plan (Service 2002, entire). Recreation and access 
to riparian areas will be managed to ensure no net loss of habitat. 
Fire within riparian areas will be suppressed and vegetation managed by 
reducing fire risks.
    Since 2005, the Yavapai-Apache Nation has concluded that through 
implementation of their plan, there has been no net loss of riparian 
habitat. Since 2005, no cattle grazing has occurred within the Verde 
River corridor. If any future grazing is permitted, it will be 
conducted appropriately with fences, and in a manner to protect 
riparian habitat quality. The Yavapai-Apache Nation has also installed 
measurement devices to evaluate the depth of the Verde River 
groundwater in order to address river flows necessary to maintain or 
improve the riparian habitat quality (Montgomery and Interpreter PLC, 
2020, p. 8). Also, no new access roads or recreation sites have been 
created. Similarly, any new housing areas have been directed to avoid 
construction within the river corridor.
    The Yavapai-Apache Nation has conducted continued education,

[[Page 22566]]

information gathering, and partnering, and has emphasized the 
importance of protecting the Verde River within Tribal youth education 
programs. The Yavapai-Apache Nation has also continued to strengthen 
its partnership with the Service by meeting and coordinating efforts on 
the Service's goals for conservation on the Verde River. The Yavapai-
Apache Nation has committed to cooperatively discussing and examining 
future projects with the Service that could impact the northern Mexican 
gartersnake or its habitat.

Benefits of Inclusion--Yavapai-Apache Nation Tribal Lands Management

    As discussed above under Effects of Critical Habitat Designation, 
Section 7 Consultation, Federal agencies, in consultation with the 
Service, must ensure that their actions are not likely to jeopardize 
the continued existence of any listed species or result in the 
destruction or adverse modification of any designated critical habitat 
of such species. The difference in the outcomes of the jeopardy 
analysis and the adverse modification analysis represents the 
regulatory benefit and costs of critical habitat. A critical habitat 
designation requires Federal agencies to consult on whether their 
activity would destroy or adversely modify critical habitat to the 
point where recovery could not be achieved.
    Because the species occurs in the area, the benefits of a critical 
habitat designation are reduced to the possible incremental benefit of 
critical habitat because the designation would not be the sole catalyst 
for initiating section 7 consultation. However, should a catastrophic 
event such as disease, drought, wildfire, chemical spill, etc., result 
in potential or statistically proven, actual extirpation of the 
gartersnake population in this area, designation of critical habitat 
would ensure future Federal actions do not result in adverse 
modification of critical habitat, allowing for future recovery actions 
to occur.
    We have conducted informal consultations with agencies implementing 
actions on Tribal lands and provided technical assistance on project 
implementation to Tribes, and the Corps has coordinated with Tribes and 
pueblos on projects within the area. However, overall formal section 7 
consultations have been rare on Tribal lands. Because of how Tribes and 
pueblos have chosen to manage and conserve their lands and the lack of 
past section 7 consultation history, we do not anticipate a noticeable 
increase in section 7 consultations in the future, nor that such 
consultations would significantly change the current management of the 
northern Mexican gartersnake or its habitat. Therefore, the effect of a 
critical habitat designation on these lands is minimized.
    Were we to designate critical habitat on these Tribal lands, our 
section 7 consultation history indicates that there may be some, but 
few, regulatory benefits to the northern Mexican gartersnake. As 
described above, even with northern Mexican gartersnakes occurring on 
these Tribal lands, the frequency of formal section 7 consultations has 
been rare. Projects initiated by Federal agencies in the past were 
associated with maintenance of rights-of-way or water management such 
as those initiated by Federal Highway Administration or Reclamation. 
When we review projects addressing the northern Mexican gartersnake 
pursuant to section 7 of the Act in Arizona, we examine conservation 
measures associated with the project for their value in the 
conservation of northern Mexican gartersnakes or their habitat. Where 
there is consistency with managing habitat and implementing suitable 
conservation measures, it would be unlikely that a consultation would 
result in a determination of adverse modification of critical habitat. 
Therefore, when the threshold for adverse modification is not reached, 
only additional conservation recommendations could result from a 
section 7 consultation, but such measures would be discretionary on the 
part of the Federal agency.
    Another important benefit of including lands in a critical habitat 
designation is that the designation can serve to inform and educate 
landowners and the public regarding the potential conservation value of 
an area, and may help focus management efforts on areas of high value 
for certain species. Any information about the northern Mexican 
gartersnake that reaches a wide audience, including parties engaged in 
conservation activities, is valuable. The Yavapai-Apache Nation is 
fully aware of the importance of riparian habitat and conservation. 
Given that regulatory actions have already informed the public about 
the value of these areas and helped to focus potential conservation 
actions, the educational benefits from designating critical habitat 
would be small.
    Another possible benefit of the designation of critical habitat is 
that it may also affect the implementation of Federal laws, such as the 
Clean Water Act. These laws require analysis of the potential for 
proposed projects to significantly affect the environment. Critical 
habitat may signal the presence of sensitive habitat that could 
otherwise be missed in the review process for these other environmental 
laws.
    Finally, there is the possible benefit that additional funding 
could be generated for habitat improvement by an area being designated 
as critical habitat. Some funding sources may rank a project higher if 
the area is designated as critical habitat. Tribes or pueblos often 
seek additional sources of funding in order to conduct wildlife-related 
conservation activities. Therefore, having an area designated as 
critical habitat could improve the chances of receiving funding for 
habitat-related conservation projects. However, areas where northern 
Mexican gartersnakes occur, as is the case here, may also provide 
benefits when projects are evaluated for receipt of funding.
    Therefore, because of the development and implementation of a 
management plan, ongoing habitat conservation, the rare initiation of 
formal section 7 consultations, the occurrence of northern Mexican 
gartersnakes on Tribal lands, and the Service's coordination with 
Tribes on northern Mexican gartersnake-related issues, it is expected 
that there may be some, but limited, benefits from including these 
Tribal lands in a northern Mexican gartersnake critical habitat 
designation. The principal benefit of any designated critical habitat 
is that activities in and affecting such habitat require consultation 
under section 7 of the Act. Such consultation would ensure that 
adequate protection is provided to avoid destruction or adverse 
modification of critical habitat.

Benefits of Exclusion--Yavapai-Apache Nation Tribal Lands Management

    The benefits of excluding Yavapai-Apache Nation lands from 
designated critical habitat include: (1) Our deference to the Tribe to 
develop and implement conservation and natural resource management 
plans for their lands and resources, which includes benefits to the 
northern Mexican gartersnake and its habitat that might not otherwise 
occur; (2) the continuance and strengthening of our effective working 
relationships with the Tribe to promote the conservation of the 
northern Mexican gartersnake and its habitat; and (3) the maintenance 
of effective partnerships with the Tribe and working in collaboration 
and cooperation to promote additional conservation of the northern 
Mexican gartersnake and its habitat.
    During this rulemaking process, we have communicated with the 
Yavapai-Apache Nation to discuss how they might be affected by the 
regulations

[[Page 22567]]

associated with listing and designating critical habitat for the 
northern Mexican gartersnake. As such, we have established a beneficial 
relationship to support northern Mexican gartersnake conservation. As 
part of our relationship, we have provided technical assistance to the 
Yavapai-Apache Nation to develop measures to conserve the northern 
Mexican gartersnake and its habitat on their lands. These measures are 
contained within the management plan developed by the Nation. We have 
determined that the Yavapai-Apache Nation should be the governmental 
entity to manage and promote northern Mexican gartersnake conservation 
on the Yavapai-Apache Nation's lands. During our coordination efforts 
with the Yavapai-Apache Nation, we recognized and endorsed their 
fundamental right to provide for Tribal resource management activities, 
including those relating to riparian habitat.
    As stated above, the Yavapai-Apache Nation has developed and 
implemented a management plan specific to needs of riparian habitat on 
their lands. The Yavapai-Apache Nation has expressed that their lands, 
and specifically riparian habitat, are connected to their cultural and 
religious beliefs, and as a result they have a strong commitment and 
reverence toward its stewardship and conservation, and have common 
goals with the Service on species and habitat conservation. The 
management plan identifies actions to maintain, improve, and preserve 
riparian habitat. The Yavapai-Apache Nation has also implemented a 
review process for activities occurring in riparian zones; restricted 
or limited certain actions that would impact resources; and implemented 
conservation measures to minimize, or eliminate, adverse impacts. 
Overall, the commitments toward management of northern Mexican 
gartersnake habitat by the Yavapai-Apache Nation likely accomplish 
greater conservation than would be available through a designation of 
critical habitat.
    The designation of critical habitat on Yavapai-Apache Nation lands 
would be expected to have an adverse impact on our working relationship 
with them. The designation of critical habitat would be viewed as an 
intrusion and impact their sovereign abilities to manage natural 
resources in accordance with their own policies, customs, and laws. 
These impacts include, but are not limited to: (1) Limiting the 
Yavapai-Apache Nation's ability to protect and control its own 
resources on its lands; (2) undermining the positive and effective 
government-to-government relationship between the Yavapai-Apache Nation 
and the Service--a relationship that serves to protect federally listed 
species and their habitat; and (3) hampering or confusing the Yavapai-
Apache Nation's own long-standing protections for the Verde River and 
its habitat. The perceived restrictions of a critical habitat 
designation could have a damaging effect on coordination efforts, 
possibly preventing actions that might maintain, improve, or restore 
habitat for the northern Mexican gartersnake and other species. For 
these reasons, we have determined that our working relationships with 
the Yavapai-Apache Nation would be better maintained if we excluded 
their lands from the designation of northern Mexican gartersnake 
critical habitat. We view this as a substantial benefit since we have 
developed a cooperative working relationship with the Yavapai-Apache 
Nation for the mutual benefit of the northern Mexican gartersnake and 
other endangered and threatened species.
    In addition, we anticipate future management plans to include 
additional conservation efforts for other listed species and their 
habitats may be hampered if critical habitat is designated on Tribal 
lands being managed for sensitive species conservation. We have 
determined that many other Tribes and pueblos are willing to work 
cooperatively with us and others to benefit other listed and sensitive 
species, but only if they view the relationship as mutually beneficial. 
Consequently, the development of future voluntary management actions 
for other listed species may be compromised if these Tribal lands are 
designated as critical habitat for the northern Mexican gartersnake. 
Thus, a benefit of excluding these lands would be future conservation 
efforts that would benefit other listed or sensitive species.

Benefits of Exclusion Outweigh the Benefits of Inclusion--Yavapai-
Apache Nation Tribal Lands Management

    The benefits of including Yavapai-Apache Nation Tribal lands in the 
critical habitat designation are limited to the incremental benefits 
gained through the regulatory requirement to consult under section 7, 
the consideration of the need to avoid adverse modification of critical 
habitat, and interagency and educational awareness. However, due to the 
rarity of Federal actions resulting in formal section 7 consultations, 
the benefits of a critical habitat designation are minimized. In 
addition, the benefits of consultation are further minimized because 
any conservation measures that may have resulted from consultation are 
already provided through the conservation benefits to the northern 
Mexican gartersnake and their habitat from implementation of the 
Yavapai-Apache Nation's management plan and Tribal Resolution No. 46-
2006.
    Because the Yavapai-Apache Nation has developed a riparian habitat 
management plan, has been involved with the critical habitat 
designation process, and is aware of the value of their lands for 
northern Mexican gartersnake conservation, the educational benefits of 
a northern Mexican gartersnake critical habitat designation are also 
minimized.
    Allowing the Yavapai-Apache Nation to implement its own resource 
conservation programs gives the Yavapai-Apache Nation the opportunity 
to manage their natural resources to benefit riparian habitat for the 
northern Mexican gartersnake, without the perception of Federal 
Government intrusion. This philosophy is also consistent with our 
published policies on Native American natural resource management. The 
exclusion of these areas will likely also provide additional benefits 
to the northern Mexican gartersnake and other listed species that would 
not otherwise be available without the Service's maintaining a 
cooperative working relationship with the Yavapai-Apache Nation. The 
actions taken by the Yavapai-Apache Nation to manage and protect 
habitat needed for northern Mexican gartersnake exceed those 
conservation measures which may be required if the area were designated 
as critical habitat. As a result, we have determined that the benefits 
of excluding these Tribal lands from critical habitat designation 
outweigh the benefits of including these areas.

Exclusion Will Not Result in Extinction--Yavapai-Apache Nation Tribal 
Lands Management

    We have determined that exclusion of Yavapai-Apache Nation lands 
from the critical habitat designation will not result in the extinction 
of the northern Mexican gartersnake. We base this determination on 
several points. First, as discussed above under Effects of Critical 
Habitat Designation, Section 7 Consultation, if a Federal action or 
permitting occurs, the known presence of northern Mexican gartersnakes 
would require evaluation under the jeopardy standard of section 7 of 
the Act, even absent the designation of critical habitat, and thus will 
protect the species against extinction. Second, the Yavapai-Apache 
Nation has a long-term record of conserving species and habitat, and is

[[Page 22568]]

committed to protecting and managing northern Mexican gartersnake 
habitat according to their cultural history, management plans, and 
natural resource management objectives. We have determined that this 
commitment accomplishes greater conservation than would be available 
through a designation of critical habitat. With the implementation of 
these conservation measures, based upon strategies developed in the 
management plan, we have concluded that this exclusion from critical 
habitat will not result in the extinction of the northern Mexican 
gartersnake. Accordingly, we have determined that the benefits of 
excluding the Yavapai-Apache Nation lands outweigh the benefits of 
their inclusion, and the exclusion of these lands from the designation 
will not result in the extinction of the species. As a result, we are 
excluding 225 ac (91 ha) of Yavapai-Apache Nation lands within the 
Verde River Subunit from this final designation.

Required Determinations

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 13563 reaffirms the principles of E.O. 12866 while 
calling for improvements in the nation's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The executive order directs agencies to consider regulatory approaches 
that reduce burdens and maintain flexibility and freedom of choice for 
the public where these approaches are relevant, feasible, and 
consistent with regulatory objectives. E.O. 13563 emphasizes further 
that regulations must be based on the best available science and that 
the rulemaking process must allow for public participation and an open 
exchange of ideas. We have developed this rule in a manner consistent 
with these requirements.

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

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

Energy Supply, Distribution, or Use--Executive Order 13211

    Executive Order 13211 (Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use) requires 
agencies to prepare Statements of Energy Effects when undertaking 
certain actions. In our economic analysis, we did not find that this 
critical habitat designation will 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 rule will not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute, or regulation 
that would impose an enforceable duty upon State, local, or tribal 
governments, or the private sector, and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or tribal governments'' with two 
exceptions. It excludes ``a condition of Federal assistance.'' It also 
excludes ``a duty arising from

[[Page 22569]]

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 does not apply, nor does 
critical habitat shift the costs of the large entitlement programs 
listed above onto State governments.
    (2) We do not believe that this rule will significantly or uniquely 
affect small governments because the lands designated as critical 
habitat 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 Wildlife Service). In addition, based in part on an 
analysis conducted for the 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 will 
significantly or uniquely affect small governments because it will not 
produce a Federal mandate of $100 million or greater in any year, that 
is, it is not a ``significant regulatory action'' under the Unfunded 
Mandates Reform Act. The designation of critical habitat imposes no 
obligations on State or local governments. Therefore, a Small 
Government Agency Plan is not required.

Takings--Executive Order 12630

    In accordance with E.O. 12630 (Government Actions and Interference 
with Constitutionally Protected Private Property Rights), we have 
analyzed the potential takings implications of designating critical 
habitat for the northern Mexican 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 
and concludes this designation of critical habitat for the northern 
Mexican gartersnake 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 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 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 final 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 final 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 will not 
unduly burden the judicial system and that it meets the requirements of 
sections 3(a) and 3(b)(2) of the Order. We are designating critical 
habitat in accordance with the provisions of the Act. To assist the 
public in understanding the habitat needs of the species, this rule 
identifies the elements of physical or biological features essential to 
the conservation of the northern Mexican gartersnake. The designated 
areas of critical habitat are presented on maps, and the rule provides 
several options for the interested public to obtain more detailed 
location information, if desired.

[[Page 22570]]

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 the northern Mexican gartersnake, 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 invited the public to comment on the extent to which the 
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. We received five comments during the comment 
period for the environmental assessment. Our environmental assessment 
found that the impacts of the revised proposed critical habitat 
designation would be minor and not rise to a significant level, so 
preparation of an environmental impact statement is not required. 
Copies of our final environmental assessment and Finding of No 
Significant Impact can be obtained by contacting the Field Supervisor 
of the Arizona Ecological Services Field Office, or on the Arizona 
Ecological Services Field Office website at https://www.fws.gov/southwest/es/arizona/ (see ADDRESSES).

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994 
(Government-to-Government Relations with Native American Tribal 
Governments; 59 FR 22951), Executive Order 13175 (Consultation and 
Coordination with Indian Tribal Governments), and the Department of the 
Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. In accordance with 
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, 
Federal-Tribal Trust Responsibilities, and the Endangered Species Act), 
we readily acknowledge our responsibilities to work directly with 
Tribes in developing programs for healthy ecosystems, to acknowledge 
that Tribal lands are not subject to the same controls as Federal 
public lands, to remain sensitive to Indian culture, and to make 
information available to Tribes. We directly contacted the Yavapai-
Apache Nation during the rulemaking process. We will continue to work 
on a government-to-government basis with Tribal entities on 
conservation of habitat for the northern Mexican gartersnake.

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 final rule are the staff members of the 
Fish and Wildlife Service's Species Assessment Team and 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.

Regulation Promulgation

    Accordingly, we amend part 17, subchapter B of chapter I, title 50 
of the Code of Federal Regulations, as follows:

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), the List of Endangered and Threatened 
Wildlife, by revising the entry for ``Gartersnake, northern Mexican'' 
under REPTILES 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, northern Mexican....  Thamnophis eques      Wherever found......            T   79 FR 38678, 7/8/
                                    megalops.                                                 2014; 50 CFR
                                                                                              17.42(g); 4d 50
                                                                                              CFR 17.95(c).CH
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------


0
3. Amend Sec.  17.95(c) by adding an entry for ``Northern Mexican 
Gartersnake (Thamnophis eques megalops)'' after the entry for 
``American Crocodile (Crocodylus acutus)'' to read as follows:


Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *
    (c) Reptiles.
* * * * *
Northern Mexican Gartersnake (Thamnophis eques megalops)
    (1) Critical habitat units are depicted for La Paz, Mohave, 
Yavapai, Gila, Cochise, Santa Cruz, and Pima Counties

[[Page 22571]]

in Arizona, and in 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 meets or exceeds applicable State surface 
water quality standards.
    (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) A combination of amphibians, fishes, small mammals, lizards, 
and invertebrate species such that prey availability occurs across 
seasons and years.
    (iv) An absence of nonnative fish species of the families 
Centrarchidae and Ictaluridae, American 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 8,497 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 meets or exceeds applicable State surface 
water quality standards.
    (vii) Ephemeral channels that connect perennial or spatially 
intermittent perennial streams to lentic wetlands in southern Arizona 
where water resources are limited.
    (3) Critical habitat does not include humanmade 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 
May 28, 2021.
    (4) Data layers defining map units were created included using 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 May 28, 2021) 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 4333-15-P

[[Page 22572]]

[GRAPHIC] [TIFF OMITTED] TR28AP21.000

    (6) Unit 1: Upper Gila River Subbasin Unit, Grant County, New 
Mexico.
    (i) General description: Unit 1 consists of 1,133 acres (ac) (458 
hectares (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: Map of Unit 1 follows:

[[Page 22573]]

[GRAPHIC] [TIFF OMITTED] TR28AP21.001

    (7) Unit 2: Tonto Creek Unit, Gila County, Arizona.
    (i) General description: Unit 2 consists of 3,176 ac (1,285 ha) in 
Gila County, and is composed of lands in Federal (2,230 ac (902 ha)) 
and private (947 ac (383 ha)) ownership near the towns of Gisela and 
Punkin Center.
    (ii) Map: Map of Unit 2 follows:

[[Page 22574]]

[GRAPHIC] [TIFF OMITTED] TR28AP21.002

    (8) Unit 3: Verde River Subbasin Unit, Yavapai County, Arizona.
    (i) General description: Unit 3 consists of 5,265 ac (2,131 ha) in 
Yavapai County, and is composed of lands in Federal (978 ac (396 ha)), 
State (571 ac (231 ha)), and private (3,715 ac (1,433 ha)) ownership in 
three subunits near the towns of Cottonwood, Cornville, Page Springs, 
and Camp Verde.
    (ii) Map: Map of Unit 3 follows:

[[Page 22575]]

[GRAPHIC] [TIFF OMITTED] TR28AP21.003

    (9) Unit 4: Bill Williams River Subbasin Unit, La Paz and Mohave 
Counties, Arizona.
    (i) General description: Unit 4 consists of 2,245 ac (908 ha) in La 
Paz and Mohave Counties, and is composed of lands in Federal (1,119 ac 
(453 ha)) and private (1,126 ac (456 ha)) ownership in two subunits 
near the towns of Wikiup and Signal.
    (ii) Map: Map of Unit 4 follows:

[[Page 22576]]

[GRAPHIC] [TIFF OMITTED] TR28AP21.004

    (10) Unit 5: Arivaca Cienega Unit, Pima County, Arizona.
    (i) General description: Unit 5 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: Map of Unit 5 follows:

[[Page 22577]]

[GRAPHIC] [TIFF OMITTED] TR28AP21.005

    (11) Unit 6: Cienega Creek Subbasin Unit, Pima County, Arizona.
    (i) General description: Unit 6 consists of 2,083 ac (843 ha) in 
Pima County and is composed of lands in Federal (1,113 ac (450 ha)), 
State (366 ac (148 ha)), and private (605 ac (245 ha)) ownership in 
four subunits near the towns of Tucson, Vail, and Sonoita.
    (ii) Map: Map of Unit 6 follows:

[[Page 22578]]

[GRAPHIC] [TIFF OMITTED] TR28AP21.006

    (12) Unit 7: Upper Santa Cruz River Subbasin Unit, Santa Cruz and 
Cochise Counties, Arizona.
    (i) General description: Unit 7 consists of 380 ac (154 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 (224 ac (91 ha)) 
ownership in seven subunits near the towns of Sonoita and Patagonia.
    (ii) Map: Map of Unit 7 follows:

[[Page 22579]]

[GRAPHIC] [TIFF OMITTED] TR28AP21.007

    (13) Unit 8: Upper San Pedro River Subbasin Unit, Cochise and Santa 
Cruz Counties, Arizona.
    (i) General description: Unit 8 consists of 5,834 ac (2,355 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 (630 ac (255 
ha)) ownership in five subunits near the towns of Sierra Vista and 
Elgin.
    (ii) Map: Map of Unit 8 follows:

[[Page 22580]]

[GRAPHIC] [TIFF OMITTED] TR28AP21.008

* * * * *

Martha Williams,
Principal Deputy Director, Exercising the Delegated Authority of the 
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2021-07572 Filed 4-27-21; 8:45 am]
BILLING CODE 4333-15-C