Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the New Mexico Meadow Jumping Mouse
Federal Register, Volume 81 Issue 51 (Wednesday, March 16, 2016)
Federal Register Volume 81, Number 51 (Wednesday, March 16, 2016)
Rules and Regulations
Pages 14263-14325
From the Federal Register Online via the Government Publishing Office www.gpo.gov
FR Doc No: 2016-05912
Page 14263
Vol. 81
Wednesday,
No. 51
March 16, 2016
Part III
Department of the Interior
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Fish and Wildlife Service
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50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the New Mexico Meadow Jumping Mouse; Final Rule
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
Docket No. FWS-R2-ES-2013-0014;4500030114
RIN 1018-AZ32
Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the New Mexico Meadow Jumping Mouse
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate critical habitat for the New Mexico meadow jumping mouse (Zapus hudsonius luteus) under the Endangered Species Act of 1973, as amended (Act). In total, we designate an area of approximately 5,657 hectares (13,973 acres) along 272.4 kilometers (169.3 miles) of flowing streams, ditches, and canals as critical habitat in eight units within Colfax, Mora, Otero, Sandoval, and Socorro Counties in New Mexico; Las Animas, Archuleta, and La Plata Counties in Colorado; and Greenlee and Apache Counties in Arizona. The effect of this rule is to designate critical habitat for the New Mexico meadow jumping mouse under the Act.
DATES: This rule is effective on April 15, 2016.
ADDRESSES: This final rule is available on the Internet at http://www.fws.gov/southwest/es/NewMexico/index.cfm and at http://www.regulations.gov under Docket No. FWS-R2-ES-2013-0014. Comments and materials we received, as well as some supporting documentation used in preparing this final rule, are available for public inspection at http://www.regulations.gov. All of the comments, materials, and documentation that we considered in this rulemaking are available by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, New Mexico Ecological Services Field Office, 2105 Osuna NE., Albuquerque, NM 87113; telephone 505-346-2525; or facsimile 505-346-2542.
The coordinates or plot points or both from which the critical habitat maps are generated are included in the administrative record for this rulemaking and are available at http://www.fws.gov/southwest/es/NewMexico/, at http://www.regulations.gov under Docket No. FWS-R2-
ES-2013-0014, and at the New Mexico Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT). Any additional tools or supporting information that we may develop for this rulemaking will also be available at the Fish and Wildlife Service Web site and Field Office set out above, and may also be included at http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Wally ``J'' Murphy, Field Supervisor, U.S. Fish and Wildlife Service, New Mexico Ecological Services Field Office, 2105 Osuna NE., Albuquerque, NM 87113; by telephone 505-346-
2525; or by facsimile 505-346-2542. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. This document is a final rule to designate critical habitat for the endangered New Mexico meadow jumping mouse. Under the Act, any species that is determined to be an endangered or threatened species requires critical habitat to be designated, to the maximum extent prudent and determinable. Designations and revisions of critical habitat can only be completed by issuing a rule.
The basis for our action. On June 20, 2013 (78 FR 37363), we proposed to list the New Mexico meadow jumping mouse (jumping mouse) under the Act as an endangered species; that same day, we also proposed to designate critical habitat for the jumping mouse (78 FR 37328). Subsequently, we listed the jumping mouse as an endangered species (79 FR 33119; June 10, 2014). This is a final rule to designate critical habitat for the jumping mouse. Section 4(b)(2) of the Act states that the Secretary shall designate critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat.
This final rule will designate critical habitat for the endangered New Mexico meadow jumping mouse. The critical habitat areas we are designating in this rule constitute our current best assessment of the areas that meet the definition of critical habitat for the jumping mouse. We are designating as critical habitat for the subspecies approximately 5,657 hectares (13,973 acres) along 272.4 kilometers (169.3 miles) of flowing streams, ditches, and canals as critical habitat in eight units within Colfax, Mora, Otero, Sandoval, and Socorro Counties in New Mexico; Las Animas, Archuleta, and La Plata Counties in Colorado; and Greenlee and Apache Counties in Arizona.
We have prepared economic and environmental analyses of the designation of critical habitat. In order to consider economic impacts, we prepared an analysis of the economic impacts of the critical habitat designation and related factors. We also prepared an environmental analysis of the designation of critical habitat in order to evaluate whether there would be any significant environmental impacts as a result of the critical habitat designation. We announced the availability of the draft economic analysis and the draft environmental assessment in the Federal Register on April 8, 2014 (79 FR 19307), allowing the public to provide comments on our analyses. We have incorporated the comments and have completed the final economic analysis and final environmental analysis for this final designation.
Peer review and public comment. We sought comments from four independent specialists to ensure that our designation is based on scientifically sound data and analyses. We obtained opinions from three individuals with scientific expertise to review our technical assumptions and analysis, and to determine whether or not we had used the best available scientific information. Two of these peer reviewers supported the redundancy of habitat proposed for designation, but were concerned about the viability of existing jumping mouse populations, the short length of some units proposed for designation, and potential for the subspecies' recovery. These peer reviewers provided additional information, clarifications, and suggestions to improve this final rule. Information we received from peer review is incorporated into this final designation. We also considered all comments and information we received from the public during our two open comment periods, which were open for a total of 90 days. We also held four public information meetings with interested stakeholders.
Previous Federal Actions
Previous Federal actions for the jumping mouse are described in the Previous Federal Actions section of the final listing rule published on June 10, 2014 (79 FR 33119). We published a notice of availability of the draft economic analysis and the draft environmental assessment in the Federal Register on April 8, 2014 (79 FR 19307), allowing the public to provide
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comments on our analyses. Details regarding the comment periods on the proposed rulemaking are provided below.
It is our intent to discuss below only those topics directly relevant to the designation of critical habitat for the jumping mouse. For a thorough assessment of the subspecies' biology and natural history, including limiting factors and subspecies resource needs, please refer to the Final New Mexico Meadow Jumping Mouse Species Status Assessment Report (SSA Report; Service 2014, entire), available online at http://www.regulations.gov under Docket No. FWS-R2-ES-2013-
0023 and the final listing rule published on June 10, 2014 (79 FR 33119).
Summary of Comments and Recommendations
We requested written comments from the public on the proposed designation of critical habitat for the jumping mouse during two comment periods. The first comment period associated with the publication of the proposed rule (78 FR 37328) opened on June 20, 2013, and closed on August 19, 2013. A legal notice inviting general public comment was published in the Albuquerque Journal on June 27, 2013. We did not receive any requests for a public hearing within 45 days after the date of the proposed rule being published in the Federal Register.
We also requested comments on the proposed critical habitat designation and associated draft economic analysis and draft environmental assessment during a comment period that opened April 8, 2014, and closed on May 8, 2014 (79 FR 19307). We contacted appropriate Federal and State agencies, tribes, scientific experts and organizations, and other interested parties and invited them to comment on the proposed rule and associated draft economic analysis and draft environmental assessment. On August 15, 2013, we also held an informational meeting in Durango, Colorado, after receiving requests from interested parties. Similarly, we held informational meetings in Cantildeon, New Mexico, on April 24, 2014; Durango, Colorado on April 28, 2014; and Alamogordo, New Mexico, on May 28, 2014.
During the two open comment periods, we received 63 comment letters addressing the proposed critical habitat designation, the draft economic analysis, or the draft environmental assessment. Comments we received are grouped into general issues specifically relating to the proposed critical habitat designation for the jumping mouse. All substantive information provided during both comment periods has either been incorporated directly into this final designation or the SSA Report, or is addressed below.
Peer Review Comments
In accordance with our peer review policy published on July 1, 1994 (59 FR 34270), we solicited expert opinion from four knowledgeable individuals with scientific expertise and familiarity with the subspecies, the geographic region in which the subspecies occurs, and conservation biology principles. We received responses from three of the four peer reviewers on the proposed designation of critical habitat. We reviewed all comments we received from the peer reviewers for substantive issues and new information regarding critical habitat for the jumping mouse. These peer reviewers provided additional information, clarifications, and suggestions to improve this final rule.
(1) Comment: The Service should consider expanding the proposed critical habitat to provide reaches of critical habitat that are at least 25 kilometers (km) (15.5 miles (mi)) in length. A minimum length of 9 km (6 mi) of critical habitat may not be adequate to support a resilient population because many threats (e.g., wildfire, drought, and recreation) are likely to impact entire sections of stream. The average length of proposed critical habitat units was 12.2 km (7.6 mi) (range of 3.7 to 23.3 km; 2.3 to 14.5 mi). Small reaches (i.e., Any activities with a Federal nexus occurring within occupied habitat will be subject to section 7 consultation requirements regardless of critical habitat designation, due to the presence of the listed species; and
In most cases, project modifications requested to avoid adverse modification are likely to be the same as those needed to avoid jeopardy in occupied habitat.
This analysis forecasts the total number and administrative cost of future consultations likely to occur for grazing, transportation, recreation, water management, and species and habitat management undertaken by or permitted by Federal agencies within the study area. In addition, the analysis forecasts costs associated with conservation efforts that may be recommended in consultation for those activities occurring in unoccupied areas. The total incremental section 7 costs associated with the proposed designation are estimated to be $20,000,000 in 2014, for both administrative and conservation effort costs; therefore, the total costs of the proposed rule are unlikely to exceed $100 million in a given year.
Various economic benefits may result from the incremental conservation efforts identified in this analysis, including: (1) Those associated with the primary goal of species conservation (i.e., direct benefits), and (2) those additional beneficial services that derive from conservation efforts but are not the purpose of the Act (i.e., ancillary benefits). Due to existing data limitations, we are unable to assess the likely magnitude of these benefits.
Exclusions Based on National Security Impacts
Under section 4(b)(2) of the Act, we consider whether there are lands owned or managed by the Department of Defense where a national security impact might exist. In preparing this final rule, we have determined that no lands within the designation of critical habitat for the jumping mouse are owned or managed by the Department of Defense or Department of Homeland Security, and, therefore, we anticipate no impact on national security or homeland security. Consequently, the Secretary is not exerting her discretion to exclude any areas from this final designation based on impacts on national security.
Exclusions Based on Other Relevant Impacts
Under section 4(b)(2) of the Act, we also consider any other relevant impacts resulting from the designation of critical habitat. We consider a number of factors including whether the landowners have developed any habitat conservation plans or other management plans for the area, or whether there are conservation partnerships that would be encouraged by designation of, or exclusion from, critical habitat. In addition, we look at any tribal issues and consider the government-to-
government relationship of the United States with tribal entities.
Tribal Lands--Exclusions Under Section 4(b)(2) of the Act
In accordance with the President's memorandum of April 29, 1994, ``Government-to-Government Relations with Native American Tribal Governments'' (59 FR 22951); Executive Order 13175; and the relevant provision of the Departmental Manual of the Department of the Interior (512 DM 2), we coordinate with federally-recognized tribes on a government-to-government basis. Further, Secretarial Order 3206, ``American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act'' (1997) states that (1) critical habitat shall not be designated in areas that may impact tribal trust resources, may impact tribally-owned fee lands, or are used to exercise tribal rights unless it is determined essential to conserve a listed species; and (2) in designating critical habitat, the Service shall evaluate and document the extent to which the conservation needs of the listed species can be achieved by limiting the designation to other lands.
Land and Resource Management Plans, Conservation Plans, or Agreements Based on Conservation Partnerships
We indicated in the proposed rule that our final decision regarding the exclusions of tribal lands under section 4(b)(2) of the Act would consider tribal management and the recognition of their capability to appropriately manage their own resources, and the government-to-
government relationship of the United States with tribal entities (79 FR 37328; June 20, 2013). We also acknowledged our responsibilities to work directly with tribes in developing programs for healthy ecosystems, that tribal lands are not subject to the same controls as Federal public lands, our need to remain sensitive to Indian culture, and to make information available to tribes (79 FR 37328; June 20, 2013). We identified the tribal lands of Isleta Pueblo and Ohkay Owingeh included within the proposal as areas we were considering for exclusion (79 FR 37328; June 20, 2013).
Isleta Pueblo
On Isleta Pueblo (within Subunit 6A in the proposed rule), we proposed 43 ha (105 ac) of critical habitat along 3.7 km (2.3 mi) of ditches, canals, and marshes within Bernalillo County, New Mexico. Much of the habitat was historically occupied with individuals detected as recently as 1988 (Morrison 1988, pp. 22-27; Frey 2006c, entire); however, surveys within parts of the two proposed critical habitat segments during 2014 did not detect New Mexico meadow jumping mice (Bureau of Reclamation 2014, entire). The entire area is considered unoccupied at the time of listing.
As analyzed below, we have excluded Isleta Pueblo from critical habitat based on their Riverine Management Plan and our ongoing conservation partnership where the benefits of exclusion from critical habitat outweigh the benefits of including an area within critical habitat. We believe that the Isleta Riverine Management Plan fulfills our criteria described below, and these benefits outweigh the benefits from inclusion as critical habitat. Moreover, Isleta Pueblo has a demonstrated productive working relationship on a Government-to-
Government basis with us. The designation of critical habitat on Isleta Pueblo would be expected to adversely impact our working relationship. During our discussions with Isleta Pueblo and from comments we received on the proposed designation of critical habitat for the jumping mouse, they informed us that critical habitat would be viewed as an intrusion on their sovereign abilities to manage natural resources in accordance with their own policies, customs, and laws. The perceived restrictions of a critical habitat designation could have a more damaging effect to coordination efforts, possibly preventing actions that might maintain, improve, or restore habitat for the jumping mouse and other endangered or threatened species like the southwestern willow flycatcher (Empidonax traillii extimus) (flycatcher) and Rio Grande silvery minnow (Hybognathus amarus) (silvery minnow). As a result, we found Isleta Pueblo would prefer to work with us on a government-to-government basis.
The Pueblo of Isleta has developed and maintained a Riverine Management Plan that includes the flycatcher and silvery minnow (Service 2005; 70 FR 60955, October 19, 2005; Pueblo of Isleta 2005, entire; 2014, entire). The objective of this plan is to protect, conserve, and promote the management of the flycatcher and silvery minnow and their associated habitats within the
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Pueblo's boundaries. The Pueblo recently updated and Tribal Council subsequently approved, the Riverine Management Plan to specifically include management of the jumping mouse and its habitat by: (1) Evaluating jumping mouse populations within their management areas; (2) developing science-based management actions that address and mitigate potential threats to the subspecies on the Pueblo; (3) prescribing appropriate measures to sustain existing habitat; and (4) promoting a comprehensive, integrated, and adaptive resource management approach for the riverine ecosystem administered by the Pueblo (Pueblo of Isleta 2014, entire). The Pueblo will continue to protect its bosque and does not intend to develop the areas we proposed as jumping mouse critical habitat. Moreover, under the comprehensive Riverine Management Plan, the Isleta Pueblo has conducted a variety of voluntary measures, restoration projects, and management actions to conserve riparian vegetation, including not allowing cattle to graze within the bosque, protecting riparian habitat from fire, maintaining native vegetation, and preventing habitat fragmentation (Service 2005; 70 FR 60955, October 19, 2005; Pueblo of Isleta 2005, entire).
We considered their current conservation plan to provide adequate management or protection because it meets the following criteria:
(1) The plan is complete and provides the same or better level of protection from adverse modification or destruction than that provided through a consultation under section 7 of the Act;
(2) There is a reasonable expectation that the conservation management strategies and actions will be implemented for the foreseeable future, based on past practices, written guidance, or regulations; and
(3) The plan provides conservation strategies and measures consistent with currently accepted principles of conservation biology.
For these reasons, we believe that our working relationship will be better maintained if Isleta Pueblo was excluded from the designation of jumping mouse critical habitat. We view this as a substantial benefit since we have developed a cooperative working relationship for the mutual benefit of endangered and threatened species, including the jumping mouse.
Benefits of Inclusion--Isleta Pueblo
Through application of Section 4(b)(2) of the Act, Federal agencies, in consultation with the Service, must ensure that their actions are not likely to jeopardize the continued existence of any listed species or result in the destruction or adverse modification of any designated critical habitat of such species. The difference in the outcomes of the jeopardy analysis and the adverse modification analysis represents the regulatory benefit and costs of critical habitat.
Proposed Subunit 6A is unoccupied by the jumping mouse (Bureau of Reclamation 2014, entire); therefore, if a Federal action or permitting occurs, there may not be a consultation under section 7 of the Act unless critical habitat is designated. Our draft economic analysis found that if we designate critical habitat on Isleta Pueblo, it is expected that consultation would occur with the Bureau of Indian Affairs (for actions such as riparian habitat restoration, fire management plans, fire suppression, and fuel reduction treatments). Federal agencies would be required to ensure their actions do not destroy or adversely modify that critical habitat.
Our economic analysis found that the incremental costs in proposed Subunit 6A would be limited to the administrative costs of consultation and none related to project modifications recommended by the Service during section 7 consultation. We also do not anticipate any formal consultations from grazing or recreation if critical habitat were designated, primarily because these activities do not occur in the proposed unit. Moreover, the types of projects we might anticipate (riparian habitat restoration, fire management plans, fire suppression, and fuel reduction treatments) would all provide long-term benefits to jumping mouse habitat, suggesting that effects to the jumping mouse from Federal projects would likely result in insignificant and discountable conclusions because conservation measures would be focused on habitat improvement and management. Because of how Isleta Pueblo manages and conserves their lands, we do not anticipate that Isleta Pueblo's actions would considerably change in the future. Therefore, the regulatory benefit of critical habitat designation on these lands is minimized.
Another important benefit of including lands in a critical habitat designation is that the designation can serve to educate landowners, agencies, tribes, and the public regarding the potential conservation value of an area, and may help focus conservation efforts on areas of high conservation value for certain species. Any information about the jumping mouse that reaches a wide audience, including parties engaged in conservation activities, is valuable. The designation of critical habitat may also strengthen or reinforce some Federal laws such as the Clean Water Act. These laws analyze the potential for projects to significantly affect the environment. Critical habitat may signal the presence of sensitive habitat that could otherwise be missed in the review process for these other environmental laws.
Isleta Pueblo is familiar with the jumping mouse and its habitat needs, and has a demonstrated commitment to address management and recovery of the flycatcher, silvery minnow, and jumping mouse through their revision of the Riverine Management Plan (Pueblo of Isleta 2014, entire). Isleta Pueblo lands and the former jumping mouse population on those lands has been widely known since the 1980s (Hink and Ohmart 1984, p. 97; Morrison 1988, pp. 22-27; Frey 2006c, entire). Thus, the educational benefits that might follow critical habitat designation, such as providing information to Isleta Pueblo on areas that are important for the long-term survival and conservation of the subspecies, have already been provided. For these reasons, we believe there is little educational benefit or support for other laws and regulations attributable to critical habitat beyond those benefits already achieved from listing the jumping mouse under the Act (79 FR 33119; June 10, 2014).
Benefits of Exclusion--Isleta Pueblo
The benefits of excluding Isleta Pueblo from designated critical habitat include: (1) The advancement of our Federal Indian Trust obligations and our deference to tribes to develop and implement tribal conservation and natural resource management plans for their lands and resources, which includes the jumping mouse; (2) the conservation benefits to the jumping mouse and its habitat through the management plan that might not otherwise occur; and (3) the maintenance of effective collaboration and cooperation to promote the conservation of the jumping mouse and its habitat, and other species.
We have an effective working relationship with Isleta Pueblo, which was established when we proposed critical habitat for the silvery minnow (67 FR 39206; June 6, 2002) and has evolved through consultations on the flycatcher (69 FR 60706; October 12, 2004) and other riparian restoration. During the comment periods, we received input from Isleta Pueblo expressing the view that designating jumping mouse critical habitat on tribal land would adversely affect the
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Service's working relationship with the Pueblo. They noted that the beneficial cooperative working relationship has assisted in the conservation of listed species and other natural resources. They indicated that critical habitat designation would amount to additional Federal regulation of sovereign lands, and would be viewed as an unwarranted and unwanted intrusion. Consequently, the development of future voluntary management actions for the jumping mouse and other listed species may be compromised if these lands are designated as critical habitat for the jumping mouse. Thus, a benefit of excluding these lands is future conservation efforts that would benefit listed species, including the jumping mouse.
During development of the jumping mouse critical habitat proposal (and coordination for other critical habitat proposals such as flycatcher and silvery minnow) and other efforts such as development of the flycatcher recovery plan, formal consultations, and during emergency fire suppression, we have met and communicated with the Pueblo to discuss how they might be affected by the regulations associated with endangered species management, recovery, the designation of critical habitat, and measures to minimize any impacts from planned projects as well as emergency actions such as fire suppression. As such, we established relationships for the management and conservation of endangered species and their habitats. As part of our relationship, we have provided technical assistance to develop measures to conserve endangered and threatened species and their habitats; we expect that the Pueblo will request similar assistance for the jumping mouse.
All of these proactive actions were conducted in accordance with Secretarial Order 3206, ``American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act'' (June 5, 1997); the relevant provision of the Departmental Manual of the Department of the Interior (512 DM 2); and Secretarial Order 3317, ``Department of Interior Policy on Consultation with Indian Tribes'' (December 1, 2011). During our communications with Isleta Pueblo, we recognized and endorsed their fundamental right to provide for tribal resource management activities, including those relating to riparian habitat where the jumping mouse existed historically.
The updated Riverine Management Plan will continue to provide guidance and oversight on the management of endangered species on Isleta Pueblo. We find that the Isleta Pueblo's Riverine Management Plan is complete and the commitment to implement conservation activities described provides significant conservation benefit to the jumping mouse, which might not otherwise occur. We believe that the resolution passed by the Tribal Council of the Pueblo of Isleta concerning the Riverine Management Plan demonstrates that the management plan will be implemented. The Riverine Management Plan specifically provides periodic updates as appropriate, including species updates for the flycatcher, silvery minnow, and jumping mouse.
Benefits of Exclusion Outweigh the Benefits of Inclusion--Isleta Pueblo
The benefits of including Isleta Pueblo in the critical habitat designation are limited to the administrative costs of consultation, agency and educational awareness, and the implementation of other law and regulations. However, as discussed in detail above, we believe these benefits are minimized because they are provided for through other mechanisms, such as (1) The advancement of our Federal Indian Trust obligations; (2) the conservation benefits to jumping mouse, other riparian habitats, and other endangered species from implementation of conservation actions under the Riverine Management Plan; and (3) the maintenance of effective collaboration and cooperation to promote the conservation of the jumping mouse and its habitat.
The benefits of excluding Isleta Pueblo from being designated as jumping mouse critical habitat are more significant and include encouraging the continued implementation of the Riverine Management Plan, which contains conservation actions for the flycatcher, silvery minnow, and jumping mouse. Overall, these conservation actions, including management of these endangered and threatened species and their habitat accomplishes greater conservation than would be available through the implementation of a designation of critical habitat on a project-by-project basis. Excluding the Pueblo from critical habitat will allow Isleta Pueblo to manage their natural resources to benefit riparian habitat for the jumping mouse, without the perception of Federal Government intrusion. This philosophy is also consistent with our published policies on Native American natural resource management. The exclusion of these areas will likely also provide additional benefits to other listed species that would not otherwise be available without the Service maintaining a cooperative working relationship and the Riverine Management Plan. In conclusion, we find that the benefits of excluding Isleta Pueblo from critical habitat designation outweigh the benefits of including these areas. As a result of the assurances, protections, and conservation benefit to the Rio Grande ecosystem, the flycatcher, the silvery minnow, and the New Mexico meadow jumping mouse and their habitats on Pueblo lands, we are excluding this area from jumping mouse critical habitat.
Exclusion Will Not Result in Extinction of the Species--Isleta Pueblo
We have determined that exclusion of Isleta Pueblo will not result in extinction of the species. First, the jumping mouse is currently extirpated from these areas (Bureau of Reclamation 2014, entire). Second, Isleta Pueblo is committed to protecting and managing their lands and species found on those lands according to the Riverine Management Plan and their tribal, cultural, and natural resource management objectives, which provide conservation benefits for the jumping mouse and its habitat as well as other listed species. Therefore, Isleta Pueblo is committed to greater conservation measures on their land than would be available through the designation of critical habitat. Accordingly, we have excluded Isleta Pueblo from the designation of critical habitat under section 4(b)(2) of the Act because the benefits of exclusion outweigh the benefits of inclusion and will not cause the extinction of the species.
Ohkay Owingeh
Ohkay Owingeh Pueblo is located along the Rio Grande just north of Espanola in Rio Arriba County, New Mexico, and adjoins the lands of Santa Clara Pueblo. The Ohkay Owingeh Pueblo includes the southern or downstream end of the Velarde reach of the Rio Grande, and comprises the largest contiguous area of generally intact riparian woodland, as well as the largest riparian area under the control of a single landowner within the Velarde reach. A total of about 16.6 km (10.3 mi) of the Rio Grande are located within the Pueblo and over 450 ha (1,100 acres) of riparian habitat are still extant within the Pueblo boundaries. On Ohkay Owingeh (within Subunit 6B in the proposed rule), we proposed 51 ha (125 ac) of critical habitat along 4.8 km (3.0 mi) of ditches, canals, and marshes within Rio Arriba, County, New Mexico. Much of the habitat was historically occupied with individuals detected as
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recently as 1988 (Morrison 1988, pp. 28-35; Frey 2006c, entire); however, no New Mexico meadow jumping mice were captured during surveys conducted recently (Morrison 2012, entire). The entire unit is considered unoccupied at the time of listing.
As analyzed below, we have excluded Ohkay Owingeh from critical habitat based on our ongoing conservation partnership where the benefits of exclusion from critical habitat outweigh the benefits of including an area within critical habitat. We believe that Ohkay Owingeh has a demonstrated productive working relationship on a Government-to-Government basis with us. The designation of critical habitat on Ohkay Owingeh would be expected to adversely impact our working relationship. During our discussions with Ohkay Owingeh and from comments we received on the proposed designation of critical habitat for the jumping mouse, they informed us that critical habitat would be viewed as an intrusion on their sovereign abilities to manage natural resources. The perceived restrictions of a critical habitat designation could have a more damaging effect to coordination efforts, possibly preventing actions that might maintain, improve, or restore habitat for the jumping mouse and other endangered or threatened species like the flycatcher. Therefore, we are excluding Ohkay Owingeh based on a variety of voluntary measures, restoration projects, and management actions to conserve the jumping mouse and its habitat on their lands and their demonstrated productive working relationship on a Government-to-Government basis with us.
Benefits of Inclusion--Ohkay Owingeh
Through application of Section 4(b)(2) of the Act, Federal agencies, in consultation with the Service, must ensure that their actions are not likely to jeopardize the continued existence of any listed species or result in the destruction or adverse modification of any designated critical habitat of such species. The difference in the outcomes of the jeopardy analysis and the adverse modification analysis represents the regulatory benefit and costs of critical habitat.
Proposed Subunit 6B is unoccupied by the jumping mouse (Ohkay Owingeh 2014, entire); therefore, if a Federal action or permitting occurs, there may not be a consultation under section 7 of the Act unless critical habitat is designated. Our draft economic analysis found that if we designate critical habitat on Ohkay Owingeh, it is expected that consultation would occur with the Bureau of Indian Affairs (for actions such as riparian habitat restoration, fire management plans, fire suppression, and fuel reduction treatments). Federal agencies would be required to ensure their actions do not destroy or adversely modify that critical habitat.
Our section 7 consultation history for another riparian species, the flycatcher, shows that since listing in 1995, no formal section 7 consultations addressing the flycatcher have occurred as a result of implementing Federal actions on Ohkay Owingeh. We have conducted informal consultations on the flycatcher with agencies implementing actions or providing funding and provided the technical assistance on project implementation. Effects to the flycatcher from Federal projects have all resulted in insignificant and discountable impacts due to conservation measures that focused on habitat improvement and management for the flycatcher. It would likely be the same scenario for the jumping mouse, which has even more restricted habitat than the flycatcher on Ohkay Owingeh.
If we designate critical habitat on Ohkay Owingeh, our previous section 7 consultation history for the flycatcher in riparian habitat indicates that there could be some, but likely few, regulatory benefits to the jumping mouse. Even with flycatchers occurring on Ohkay Owingeh, no formal flycatcher-related section 7 consultations have occurred. Because no jumping mice currently occur on Ohkay Owingeh, it is even more likely that no formal jumping mouse-related section 7 consultations would occur. Projects initiated by Federal agencies in the future would likely only be associated with actions pertaining to the implementation of grants or funding of habitat improvement projects that would benefit the jumping mouse. Because of how Ohkay Owingeh has chosen to manage and conserve their lands and the lack of a past formal section 7 consultation history for the flycatcher, we do not anticipate that Ohkay Owingeh's actions would considerably change in the future, generating a noticeable increase in section 7 consultations that would cause impacts to the jumping mouse or its habitat. Therefore, the effect of a critical habitat designation on these lands is minimized.
Our economic analysis found that the incremental costs in proposed Subunit 6B would be limited to the administrative costs of consultation and none related to project modifications recommended by the Service during section 7 consultation. We also do not anticipate any formal consultations from grazing or recreation if critical habitat were designated, primarily because these activities do not occur in the proposed unit. Moreover, the types of projects we might anticipate (riparian habitat restoration, fire management plans, fire suppression, and fuel reduction treatments) would all provide long-term benefits to jumping mouse habitat, suggesting that effects to the jumping mouse from Federal projects would likely result in insignificant and discountable impacts because conservation measures would be focused on habitat improvement and management. Because of how Ohkay Owingeh manages and conserves their lands, we do not anticipate that Ohkay Owingeh's actions would considerably change in the future. Therefore, the regulatory benefit of critical habitat designation on these lands is minimized.
Another important benefit of including lands in a critical habitat designation is that the designation can serve to educate landowners, agencies, tribes, and the public regarding the potential conservation value of an area, and may help focus conservation efforts on areas of high conservation value for certain species. Any information about the jumping mouse that reaches a wide audience, including parties engaged in conservation activities, is valuable. The designation of critical habitat may also strengthen or reinforce some Federal laws such as the Clean Water Act. These laws analyze the potential for projects to significantly affect the environment. Critical habitat may signal the presence of sensitive habitat that could otherwise be missed in the review process for these other environmental laws.
Ohkay Owingeh is familiar with the jumping mouse and its habitat needs, and has successfully worked with the Service to address jumping mouse management and recovery. Further, Ohkay Owingeh lands and the former jumping mouse population that once inhabited them has been widely known since the 1980s (Morrison 1988, pp. 28-35; Frey 2006c, entire). Thus, the educational benefits that might follow critical habitat designation, such as providing information to Ohkay Owingeh on areas that are important for the long-term survival and conservation of the subspecies, have already been provided. For these reasons, we believe there is little educational benefit or support for other laws and regulations attributable to critical habitat beyond those benefits already achieved from listing the jumping mouse under the Act (79 FR 33119; June 10, 2014).
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Benefits of Exclusion--Ohkay Owingeh
The benefits of excluding the Pueblo of Ohkay Owingeh from designated critical habitat include: (1) The advancement of our Federal Indian Trust obligations and our deference to tribes to develop and implement tribal conservation and natural resource management plans for their lands and resources, which includes the jumping mouse; (2) the conservation benefits to the jumping mouse and its habitat that might not otherwise occur; and (3) the maintenance of effective collaboration and cooperation to promote the conservation of the jumping mouse and its habitat, and other species.
We have an effective working relationship with Ohkay Owingeh, which has evolved through consultations on the flycatcher (69 FR 60706; October 12, 2004) and other riparian restoration. As part of our relationship, we have provided technical assistance to develop measures to conserve the flycatcher and its habitat on their lands, as well as provided funding for managing jumping mouse habitat and conducting surveys. These proactive actions were conducted in accordance with Secretarial Order 3206, ``American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act'' (June 5, 1997); the relevant provision of the Departmental Manual of the Department of the Interior (512 DM 2); and Secretarial Order 3317, ``Department of Interior Policy on Consultation with Indian Tribes'' (December 1, 2011). During our communication with Ohkay Owingeh, we recognized and endorsed their fundamental right to provide for tribal resource management activities, including those relating to riparian habitat.
During the comment periods, we received input from Ohkay Owingeh expressing the view that designating jumping mouse critical habitat on tribal land would adversely affect the Service's working relationship. They noted that the positive cooperative working relationship has assisted in the conservation of listed species and other natural resources. They indicated that critical habitat designation would amount to additional Federal regulation of sovereign lands, and would be viewed as an unwarranted and unwanted intrusion. Consequently, the development of future voluntary management actions for the jumping mouse and other listed species may be compromised if these lands are designated as critical habitat for the jumping mouse. To this end, we found Ohkay Owingeh would prefer to work with us on a Government-to-
Government basis. For these reasons, we believe that our working relationship would be better maintained if they were excluded from the designation of jumping mouse critical habitat. We view this as a substantial benefit since we have developed a cooperative working relationship that benefits the conservation of endangered and threatened species.
We have coordinated and collaborated with Ohkay Owingeh on the management and recovery of the flycatcher, jumping mouse, and their habitats and have established a conservation partnership. Many tribes and pueblos recognize that their management of riparian habitat and conservation of these endangered species are common goals they share with the Service. Ohkay Owingeh's management actions are evidence of their commitment toward measures to improve riparian habitat for endangered species. Some of the common management strategies are maintaining riparian conservation areas, preserving habitat, improving habitat, reducing occurrence of fire, and conducting surveys (Ohkay Owingeh 2005, entire; 2014, entire). Ohkay Owingeh's Environmental Affairs Department implements conservation measures to improve riparian habitat conditions.
Ohkay Owingeh is willing to work cooperatively with us and others to benefit other listed species, but only if they view the relationship as mutually beneficial. Consequently, the development of future voluntary management actions for the jumping mouse and other listed species may be compromised if these lands are designated as critical habitat for the jumping mouse. As a result of the cooperative working relationship, we are excluding this area from jumping mouse critical habitat.
Benefits of Exclusion Outweigh the Benefits of Inclusion--Ohkay Owingeh
The benefits of including Ohkay Owingeh in the critical habitat designation are limited to the incremental benefits gained through the regulatory requirement to consult under section 7 and consideration of the need to avoid adverse modification of critical habitat, agency and educational awareness, and the improved implementation of other laws and regulations. However, as discussed in detail above, we believe these benefits are minimized because they are provided for through other mechanisms, such as (1) The advancement of our Federal Indian Trust obligations; (2) the conservation benefits to jumping mouse and other endangered species and riparian habitats from implementation of conservation actions; and (3) the maintenance of effective collaboration and cooperation to promote the conservation of the jumping mouse and its habitat.
The benefits of excluding Ohkay Owingeh from being designated as jumping mouse critical habitat are more significant and include encouraging the continued implementation of tribal management and conservation measures such as monitoring, surveying, habitat management and protection, and fire-risk reduction activities that are planned for the future or are currently being implemented. Overall, these conservation actions and management of riparian habitat likely accomplish greater conservation than would be available through the implementation of a designation of critical habitat on a project-by-
project basis (especially when formal section 7 consultations rarely occur). These programs will allow Ohkay Owingeh to manage their natural resources to benefit riparian habitat for the jumping mouse, without the perception of Federal Government intrusion. This philosophy is also consistent with our published policies on Native American natural resource management. The exclusion of these areas will likely also provide additional benefits to other listed species that would not otherwise be available without the Service's maintaining a cooperative working relationship. In conclusion, we find that the benefits of excluding Ohkay Owingeh from critical habitat designation outweigh the benefits of including these areas.
Exclusion Will Not Result in Extinction of the Species--Ohkay Owingeh
We have determined that exclusion of Ohkay Owingeh will not result in extinction of the species. First, the jumping mouse is currently extirpated from these areas. Second, Ohkay Owingeh is committed to protecting and managing their lands and species found on those lands according to their tribal, cultural, and natural resource management objectives, which provide conservation benefits for the jumping mouse and its habitat as well as other listed species. In short, Ohkay Owingeh is committed to greater conservation measures on their land than would be available through the designation of critical habitat. Accordingly, we have determined that Ohkay Owingeh should be excluded under section 4(b)(2) of the Act because the benefits of exclusion outweigh the benefits of inclusion and will not cause the extinction of the species.
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Required Determinations
Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) will review all significant rules. The Office of Information and Regulatory Affairs has determined that this rule is not significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effects of the rule on small entities (i.e., small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of the agency certifies the rule will not have a significant economic impact on a substantial number of small entities. The SBREFA amended the RFA to require Federal agencies to provide a certification statement of the factual basis for certifying that the rule will not have a significant economic impact on a substantial number of small entities.
According to the Small Business Administration, small entities include small organizations such as independent nonprofit organizations; small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents; and small businesses (13 CFR 121.201). Small businesses include manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and agricultural businesses with annual sales less than $750,000. To determine if potential economic impacts to these small entities are significant, we considered the types of activities that might trigger regulatory impacts under this designation as well as types of project modifications that may result. In general, the term ``significant economic impact'' is meant to apply to a typical small business firm's business operations.
The Service's current understanding of the requirements under the RFA, as amended, and following recent court decisions, is that Federal agencies are only required to evaluate the potential incremental impacts of rulemaking only on those entities directly regulated by the rulemaking itself and, therefore, not required to evaluate the potential impacts to indirectly regulated entities. The regulatory mechanism through which critical habitat protections are realized is section 7 of the Act, which requires Federal agencies, in consultation with the Service, to ensure that any action authorized, funded, or carried out by the agency is not likely to adversely modify critical habitat. Therefore, under section 7, only Federal action agencies are directly subject to the specific regulatory requirement (avoiding destruction and adverse modification) imposed by critical habitat designation. Consequently, it is our position that only Federal action agencies will be directly regulated by this designation. There is no requirement under RFA to evaluate the potential impacts to entities not directly regulated. Moreover, Federal agencies are not small entities. Therefore, because no small entities are directly regulated by this rulemaking, the Service certifies that the critical habitat designation will not have a significant economic impact on a substantial number of small entities.
During the development of this final rule, we reviewed and evaluated all information submitted during the comment period that may pertain to our consideration of the probable incremental economic impacts of this critical habitat designation. Based on this information, we affirm our certification that this final critical habitat designation will not have a significant economic impact on a substantial number of small entities, and a regulatory flexibility analysis is not required.
Energy Supply, Distribution, or Use--Executive Order 13211
Executive Order 13211 (Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use) requires agencies to prepare Statements of Energy Effects when undertaking certain actions. The OMB has provided guidance for implementing this Executive Order that outlines nine outcomes that may constitute ``a significant adverse effect'' when compared to not taking the regulatory action under consideration.
The economic analysis finds that none of these criteria is relevant to this analysis. Thus, based on information in the economic analysis, energy-related impacts associated with the jumping mouse conservation activities within critical habitat are not expected. As such, the designation of critical habitat is not expected to significantly affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action, and no Statement of Energy Effects is required.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.), we make the following findings:
(1) This rule will not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon State, local, or tribal governments, or the private sector, and includes both ``Federal intergovernmental mandates'' and ``Federal private sector mandates.'' These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal intergovernmental Mandate'' includes a regulation that ``would impose an enforceable duty upon State, local, or tribal governments'' with two exceptions. It excludes ``a condition of Federal assistance.'' It also excludes ``a duty arising from participation in a voluntary Federal program,'' unless the regulation ``relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and tribal governments under entitlement authority,'' if the provision would ``increase the stringency of conditions of assistance'' or ``place caps upon, or otherwise decrease, the Federal Government's responsibility to provide funding,'' and the State, local, or tribal governments ``lack authority'' to adjust accordingly. At the time of enactment, these entitlement programs were:
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Medicaid; Aid to Families with Dependent Children work programs; Child Nutrition; Food Stamps; Social Services Block Grants; Vocational Rehabilitation State Grants; Foster Care, Adoption Assistance, and Independent Living; Family Support Welfare Services; and Child Support Enforcement. ``Federal private sector mandate'' includes a regulation that ``would impose an enforceable duty upon the private sector, except (i) a condition of Federal assistance or (ii) a duty arising from participation in a voluntary Federal program.''
The designation of critical habitat does not impose a legally binding duty on non-Federal Government entities or private parties. Under the Act, the only regulatory effect is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat under section 7. While non- Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Furthermore, to the extent that non-Federal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply, nor would critical habitat shift the costs of the large entitlement programs listed above onto State governments.
(2) We do not believe that this rule will significantly or uniquely affect small governments because most of the lands within the designated critical habitat do not occur within the jurisdiction of small governments. This rule will not produce a Federal mandate of $100 million or greater in any year. Therefore, it is not a ``significant regulatory action'' under the Unfunded Mandates Reform Act. The designation of critical habitat imposes no obligations on State or local governments. Consequently, we do not believe that the critical habitat designation would significantly or uniquely affect small government entities. As such, a Small Government Agency Plan is not required.
Takings--Executive Order 12630
In accordance with E.O. 12630 (Government Actions and Interference with Constitutionally Protected Private Property Rights), we have analyzed the potential takings implications of designating critical habitat for the jumping mouse in a takings implications assessment. As discussed above, the designation of critical habitat affects only Federal actions. Although private parties that receive Federal funding or assistance or require approval or authorization from a Federal agency for an action may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency.
The economic analysis found that no significant economic impacts are likely to result from the designation of critical habitat for the jumping mouse. Because the Act's critical habitat protection requirements apply only to Federal agency actions, few conflicts between critical habitat and private property rights should result from this designation. Based on information contained in the economic analysis and described within this document, economic impacts to a property owner are unlikely to be of a sufficient magnitude to support a takings action. Therefore, the takings implications assessment concludes that this designation of critical habitat for the jumping mouse does not pose significant takings implications for lands within or affected by the designation. Based on the best available information, the takings implications assessment concludes that this designation of critical habitat for the jumping mouse does not pose significant takings implications.
Federalism--Executive Order 13132
In accordance with Executive Order 13132 (Federalism), this rule does not have significant Federalism effects. A federalism impact summary statement is not required. In keeping with Department of the Interior and Department of Commerce policy, we requested information from, and coordinated development of, this critical habitat designation with appropriate State resource agencies in Arizona, Colorado, and New Mexico. We received comments from State wildlife agencies of Arizona, Colorado, and New Mexico. We have addressed them in the Summary of Comments and Recommendations section of this rule. From a federalism perspective, the designation of critical habitat directly affects only the responsibilities of Federal agencies. The Act imposes no other duties with respect to critical habitat, either for States and local governments, or for anyone else. As a result, the rule does not have substantial direct effects either on the States, or on the relationship between the national government and the States, or on the distribution of powers and responsibilities among the various levels of government. The designation may have some benefit to these governments in that the areas that contain the physical or biological features essential to the conservation of the species are more clearly defined, and the elements of the features of the habitat necessary to the conservation of the species are specifically identified. This information does not alter where and what federally sponsored activities may occur. However, it may assist local governments in long-range planning (rather than having them wait for case-by-case section 7 consultations to occur).
Where State and local governments require approval or authorization from a Federal agency for actions that may affect critical habitat, consultation under section 7(a)(2) of the Act will be required. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency.
Civil Justice Reform--Executive Order 12988
In accordance with Executive Order 12988 (Civil Justice Reform), the Office of the Solicitor has determined that the rule does not unduly burden the judicial system and that it meets the applicable standards set forth in sections 3(a) and 3(b)(2) of the Executive Order. We are designating critical habitat in accordance with the provisions of the Act. To assist the public in understanding the habitat needs of the subspecies, the rule identifies the elements of physical or biological features essential to the conservation of the jumping mouse. The designated areas of critical habitat are presented on maps, and the rule provides several options for the interested public to obtain more detailed location information, if desired.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This rule does not contain any new collections of information that require approval by the OMB under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). This rule will not impose recordkeeping or reporting requirements on state or local governments, individuals, businesses, or organizations. An agency may not
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conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
It is our position that, outside the jurisdiction of the U.S. Court of Appeals for the Tenth Circuit, we do not need to prepare environmental analyses pursuant to NEPA (42 U.S.C. 4321 et seq.) in conjunction with designating critical habitat under the Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244). This position was upheld by the U.S. Court of Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S. 1042 (1996). However, when the range of the species includes States within the Tenth Circuit, such as that of the jumping mouse, under the Tenth Circuit ruling in Catron County Board of Commissioners v. U.S. Fish and Wildlife Service, 75 F.3d 1429 (10th Cir. 1996), we will undertake a NEPA analysis for critical habitat designation.
We performed the NEPA analysis, and drafts of the environmental assessment were made available for public comment in the Federal Register on April 8, 2014 (79 FR 19307). The final environmental assessment has been completed and is available for review with the publication of this final rule. You may obtain a copy of the final environmental assessment and finding of no significant impact at http://www.regulations.gov at Docket No. FWS-R2-ES-2013-0014, and at the New Mexico Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).
We analyzed the potential impacts of critical habitat designation on the following resources and resource management types: Fish, wildlife, vegetation, floodplains and wetlands, water use and management, agriculture, livestock grazing, fire management, highway construction and reconstruction, development, energy resources, recreation, cultural or historic resources, socioeconomics, and environmental justice.
We found that the designation of critical habitat for the jumping mouse would not have direct impacts on the environment as designation is not expected to impose land use restrictions or prohibit land use activities. However, the designation of critical habitat could increase the administrative effort for section 7 consultations to incorporate critical habitat considerations and add project modifications to reduce impacts to primary constituent elements.
The primary purpose of preparing an environmental assessment under NEPA is to determine whether a proposed action would have significant impacts on the human environment. If significant impacts may result from a proposed action, then an environmental impact statement is required (40 CFR 1502.3). Whether a proposed action exceeds a threshold of significance is determined by analyzing the context and the intensity of the proposed action (40 CFR 1508.27). Our environmental assessment found that the impacts of the proposed critical habitat designation would be minor and not rise to a significant level, so preparation of an environmental impact statement is not required.
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994 (Government-to-Government Relations with Native American Tribal Governments; 59 FR 22951), Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments), and the Department of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal tribes on a government-to-government basis. In accordance with Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act), we readily acknowledge our responsibilities to work directly with tribes in developing programs for healthy ecosystems, to acknowledge that tribal lands are not subject to the same controls as Federal public lands, to remain sensitive to Indian culture, and to make information available to tribes.
We sent notification letters in November 2011, to both the Isleta Pueblo and Ohkay Owingeh, describing the exclusion process under section 4(b)(2) of the Act, and we have engaged in conversations with both tribes about the proposed rule to the extent possible without disclosing predecisional information. We sent out notification letters on June 20, 2013, notifying the tribes that the proposed rule had published in the Federal Register to allow for the maximum time to submit comments. On April 8, 2014, we also sent letters notifying the tribes that we had made available the draft environmental assessment and draft economic analysis in the Federal Register.
Following their invitation, we met with Isleta Pueblo on August 14, 2013, and May 6, 2014, to discuss the proposed rule, and their endangered species management plan. In addition to the letters sent to Ohkay Owingeh and telephone conversations, Ohkay Owingeh did not request Government-to-Government consultations or meetings. In addition, we sent coordination letters to the Bureau of Indian Affairs on September 18, 2013, seeking information for our economic analysis. We considered these tribal areas for exclusion from final critical habitat designation to the extent consistent with the requirements of 4(b)(2) of the Act, and subsequently, excluded Isleta Pueblo and Ohkay Owingeh from this final designation.
References Cited
A complete list of references cited in this rulemaking is available on the Internet at http://www.regulations.gov, in the May 2014 version of the New Mexico Meadow Jumping Mouse Species Status Assessment Report (Service 2014), and upon request from the New Mexico Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).
Authors
The primary authors of this document are the staff members of the New Mexico Ecological Services Field Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.
Regulation Promulgation
Accordingly, we amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:
PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
0
-
The authority citation for part 17 continues to read as follows:
Authority: 16. U.S.C. 1361-1407; 1531-1544; 4201-4245, unless otherwise noted.
0
-
In Sec. 17.11(h), revise the entry for ``Mouse, New Mexico meadow jumping'' under MAMMALS in the List of Endangered and Threatened Wildlife, to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
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Species Vertebrate
-------------------------------------------------------- population where Critical Special
Historic range endangered or Status When listed habitat rules
Common name Scientific name threatened
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Mammals
* * * * * * *
Mouse, New Mexico meadow jumping. Zapus hudsonius U.S. (AZ, CO, NM).. Entire............. E 838 17.95(a) NA
luteus.
* * * * * * *
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0
-
In Sec. 17.95, amend paragraph (a) by adding an entry for ``New Mexico Meadow Jumping Mouse (Zapus hudsonius luteus),'' in the same alphabetical order that the species appears in the table at Sec. 17.11(h), to read as follows:
Sec. 17.95 Critical habitat--fish and wildlife.
* * * * *
(a) Mammals.
* * * * *
New Mexico Meadow Jumping Mouse (Zapus hudsonius luteus)
(1) Critical habitat units are depicted for Colfax, Mora, Otero, Sandoval, and Socorro Counties in New Mexico; Las Animas, Archuleta, and La Plata Counties in Colorado; and Greenlee and Apache Counties in Arizona on the maps below.
(2) Within these areas, the primary constituent elements of the physical or biological features essential to the conservation of the New Mexico meadow jumping mouse consist of the following:
(i) Riparian communities along rivers and streams, springs and wetlands, or canals and ditches that contain:
(A) Persistent emergent herbaceous wetlands especially characterized by presence of primarily forbs and sedges (Carex spp. or Schoenoplectus pungens); or
(B) Scrub-shrub riparian areas that are dominated by willows (Salix spp.) or alders (Alnus spp.) with an understory of primarily forbs and sedges; and
(ii) Flowing water that provides saturated soils throughout the New Mexico meadow jumping mouse's active season that supports tall (average stubble height of herbaceous vegetation of at least 61 centimeters (24 inches)) and dense herbaceous riparian vegetation composed primarily of sedges (Carex spp. or Schoenoplectus pungens) and forbs, including, but not limited to, one or more of the following associated species: Spikerush (Eleocharis macrostachya), beaked sedge (Carex rostrata), rushes (Juncus spp. and Scirpus spp.), and numerous species of grasses such as bluegrass (Poa spp.), slender wheatgrass (Elymus trachycaulus), brome (Bromus spp.), foxtail barley (Hordeum jubatum), or Japanese brome (Bromus japonicas), and forbs such as water hemlock (Circuta douglasii), field mint (Mentha arvense), asters (Aster spp.), or cutleaf coneflower (Rudbeckia laciniata); and
(iii) Sufficient areas of 9 to 24 kilometers (5.6 to 15 miles) along a stream, ditch, or canal that contain suitable or restorable habitat to support movements of individual New Mexico meadow jumping mice; and
(iv) Adjacent floodplain and upland areas extending approximately 100 meters (330 feet) outward from the boundary between the active water channel and the floodplain (as defined by the bankfull stage of streams) or from the top edge of the ditch or canal.
(3) Critical habitat does not include manmade structures (such as buildings, fire lookout stations, runways, roads, and other paved areas) and the land on which they are located existing within the legal boundaries on April 15, 2016.
(4) Critical habitat map units. Data layers defining map units were created using the USA Contiguous Albers Equal Area Conic USGS version projection. The maps in this entry, as modified by any accompanying regulatory text, establish the boundaries of the critical habitat designation. The coordinates or plot points or both on which each map is based are available to the public at the Service's internet site http://www.fws.gov/southwest/es/NewMexico/, at http://www.regulations.gov at Docket No. FWS-R2-ES-2013-0014, and at the New Mexico Ecological Services Field Office. You may obtain field office location information by contacting one of the Service regional offices, the addresses of which are listed at 50 CFR 2.2.
(5) Note: General Locations of Critical Habitat for the New Mexico Meadow Jumping Mouse--Overview, follows:
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(6) Unit 1--Sugarite Canyon. Map follows:
GRAPHIC TIFF OMITTED TR16MR16.003
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(7) Unit 2--Coyote Creek. Map follows:
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(8) Unit 3--Jemez Mountains. Map follows:
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(9) Unit 4--Sacramento Mountains. Map follows:
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(10) Unit 5--White Mountains. Map follows:
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(11) Unit 6--Bosque del Apache National Wildlife Refuge (NWR). Map follows:
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(12) Unit 7--Florida River. Map follows:
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(13) Unit 8--Sambrito Creek. Map follows:
GRAPHIC TIFF OMITTED TR16MR16.010
* * * * *
Dated: March 7, 2016.
Karen Hyun,
Acting Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
FR Doc. 2016-05912 Filed 3-15-16; 8:45 am
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