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

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS–R2–ES–2020–0011;

FF09E21000 FXES1111090FEDR 223]

RIN 1018–BD96

Endangered and Threatened Wildlife

and Plants; Designation of Critical

Habitat for the Narrow-Headed

Gartersnake

AGENCY

: Fish and Wildlife Service,

Interior.

ACTION

: Final rule.

SUMMARY

: We, the U.S. Fish and

Wildlife Service (Service), designate

critical habitat for the narrow-headed

gartersnake (Thamnophis rufipunctatus)

under the Endangered Species Act of

1973 (Act), as amended. In total, 23,785

acres (9,625 hectares) in Greenlee,

Apache, Yavapai, Gila, and Coconino

Counties, Arizona, and Grant, Hidalgo,

and Catron Counties, New Mexico, fall

within the boundaries of the critical

habitat designation for the narrow-

headed gartersnake. This rule extends

the Act’s protections to the narrow-

headed gartersnake’s designated critical

habitat.

DATES

: This rule is effective November

22, 2021.

ADDRESSES

: This final rule is available

on the internet at http://

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 http://

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 decision file for this

critical habitat designation and are

available at http://www.regulations.gov

at Docket No. FWS–R2–ES–2020–0011

or on the Service’s website at https://

www.fws.gov/southwest/es/arizona/.

Additional supporting information that

we developed for this critical habitat

designation will be available on the

Service’s website set out above and at

http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT

: Jeff

Humphrey, Field Supervisor, U.S. Fish

and Wildlife Service, Arizona Ecological

Services Field Office, Fish and Wildlife

Office, 9828 North 31st Ave. #C3,

Phoenix, AZ 85051–2517; telephone

602–242–0210. Persons who use a

telecommunications device for the deaf

(TDD) may call the Federal Relay

Service at 800–877–8339.

SUPPLEMENTARY INFORMATION

:

Executive Summary

Why we need to publish a rule. 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 narrow-

headed 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

narrow-headed gartersnake of

approximately 23,785 acres (9,625

hectares) in Greenlee, Apache, Yavapai,

Gila, and Coconino Counties, Arizona,

and Grant, Hidalgo, and Catron

Counties, 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. 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 447 stream

miles (719 kilometers) within a

maximum 326-foot (100-meter) lateral

extent of the active stream channel, in

an area of 23,784 acres (9,625 hectares)

for the narrow-headed 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 narrow-

headed gartersnake for a detailed

description of previous Federal actions

concerning this species. Those rules

included the northern Mexican

gartersnake (Thamnophis eques

megalops), but we designated critical

habitat for the northern Mexican

gartersnake in an earlier, separate final

rule (80 FR 22518; April 28, 2021). This

rule designates critical habitat only for

the narrow-headed gartersnake.

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 environmental assessment

and finding of no significant impact are

available at http://www.regulations.gov

at 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 comment on the draft document.

The final updated economic analysis

document (IEc 2021, entire) is available

at http://www.regulations.gov at Docket

No. FWS–R2–ES–2020–0011.

Summary of Changes From the

Proposed Rule

We reviewed the comments related to

critical habitat for the narrow-headed

gartersnake (see Summary of Comments

and Recommendations, below),

completed our analysis of areas

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considered for exclusion under section

4(b)(2) of the Act (16 U.S.C. 1531 et

seq.), reviewed our analysis of the

physical or biological features (PBFs)

essential to the long-term conservation

of the narrow-headed gartersnake, and

finalized the economic analysis of the

designation. This final rule incorporates

changes from our 2020 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 narrow-headed

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 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

increase of 5,081 acres (ac) (2,056

hectares (ha)) of critical habitat. Critical

habitat units were extended laterally to

capture areas needed for brumation, a

period of dormancy during the winter.

All areas added to this final critical

habitat designation were proposed as

critical habitat for the narrow-headed

gartersnake in the 2013 original

proposed critical habitat rule (78 FR

41550; July 10, 2013) (see Summary of

Essential Physical or Biological

Features).

(2) We modified PBFs 1(B), 1(C), 1(D),

and 3 for the narrow-headed gartersnake

as identified below under Physical or

Biological Features Essential to the

Conservation of the Species.

(3) We excluded approximately 508 ac

(206 ha) from portions of units for the

narrow-headed gartersnake, as

identified below in Table 2 (Areas

excluded from critical habitat

designation by critical habitat unit for

the narrow-headed 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 narrow-headed

gartersnake. The comment period for the

original proposed critical habitat rule

opened on July 10 and closed on

September 9, 2013; the comment period

for the revised proposed critical habitat

rule opened on April 28 and closed on

June 29, 2020.

For the original proposed critical

habitat rule (78 FR 41550; July 10,

2013), we contacted appropriate

Federal, State, and Tribal governments;

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 one additional request for

exclusion of an area that was 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 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 we had

received 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 narrow-headed

gartersnake and its habitat, 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 narrow-headed gartersnake;

therefore, in this rule, we limit our

discussion of the peer reviewer and

public comments we received to those

concerning the narrow-headed

gartersnake. We reviewed all the

comments we received from the peer

reviewers for substantive issues and

new information regarding the narrow-

headed 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 we received from or that

were raised by the peer reviewers have

been incorporated into this final rule, as

appropriate. Substantive comments we

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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

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

(Salmo trutta) are a harmful nonnative

and would impact the PBFs 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 narrow-

headed 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. 1533(b)(2)) 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 Endangered

Species 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 our analysis

includes 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 we have used

our discretion to determine if the

existing habitat conservation plans are

sufficient to conserve the species (see

discussion under Consideration of

Impacts under Section 4(b)(2) of the Act,

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 of such predators, is to be

considered detrimental to the narrow-

headed gartersnake. These thresholds

would also vary depending on the

condition of other PBFs, including

organic and inorganic structural features

in a stream.

Comment 5: One peer reviewer

commented on several PBFs that are

incorrectly applied to several subunits

for the narrow-headed gartersnake,

including PBF 3 in the Campbell Blue

Subunit, West Fork Gila River Subunit,

the lower 2 miles of Iron Creek Subunit,

and Little Creek Subunit, and PBF 4 in

the lower 2 miles of Iron Creek Subunit,

Little Creek Subunit, and South Fork

Negrito Creek.

Our Response: While we did not

include descriptions of PBFs for each

subunit in this document, we used the

information provided by the peer

reviewer in our reevaluation of

occupancy in the revised proposed

critical habitat rule (85 FR 23608; April

28, 2020).

Comment 6: One peer reviewer

commented that Willow Creek should

be a subunit for the narrow-headed

gartersnake because there is a museum

record from 1989 or 1990 and there are

adequate PBFs. Because the site was

formerly suitable, it is likely to become

recolonized.

Our Response: In the revised

proposed critical habitat rule (85 FR

23608; April 28, 2020), we reviewed

gartersnake occupancy to determine that

a stream or stream reach was occupied

by the narrow-headed gartersnake at the

time of listing 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, aquatic predators

are often in degraded condition), and

has a last known record of occupancy

between 1998 and 2019 (see Occupancy

Records, 85 FR 23608, p. 23617–23619)

(see Criteria Used To Identify Critical

Habitat). Willow Creek does not have a

record for the narrow-headed

gartersnake that meets this occupancy

definition, so it is not included in this

final critical habitat designation for the

species.

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Comment 7: One peer reviewer

commented that we should add the

mainstem of the Negrito reach from the

confluence of the north and south fork

Negrito Creeks to its confluence with

the Tularosa River reach.

Our Response: In the revised

proposed critical habitat rule (85 FR

23608; April 28, 2020), we reviewed

gartersnake occupancy to determine that

a stream or stream reach was occupied

by the narrow-headed gartersnake at the

time of listing 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, aquatic predators

are often in degraded condition), and

has a last known record of occupancy

between 1998 and 2019 (see Occupancy

Records, 85 FR 23608, p. 23617–23619)

(see Criteria Used To Identify Critical

Habitat). The mainstem of Negrito Creek

meets this definition for the narrow-

headed gartersnake and is included in

this final critical habitat designation for

the species.

Federal Agency Comments

Comment 8: 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.

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 narrow-

headed 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; see also Physical or

Biological Features Essential to the

Conservation of the Species, below).

Comment 9: USFS requested

clarification of what level of water

pollutants are ‘‘low enough not to affect

recruitment’’ for PBF 1(C) for narrow-

headed 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 ‘‘at levels low enough such that

recruitment of narrow-headed

gartersnakes is not inhibited’’ (85 FR

23608, April 28, 2020, p. 23648).

Therefore, in this rule, we have

amended this PBF 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

narrow-headed 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 fish

prey base for the narrow-headed

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 fish prey

base of the narrow-headed gartersnake.

Comment 10: 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-foot (ft) (182-

meter (m)) 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 narrow-

headed gartersnake.

Our Response: In the revised

proposed critical habitat rule (85 FR

23608; April 28, 2020) for the narrow-

headed gartersnake, we defined the

lateral extent of critical habitat to

include terrestrial features within 89 ft

(27 m) of the active channel of a stream

that provide thermoregulation, shelter

sites, and protection from predators.

This lateral extent includes some

portions of narrow canyon walls and

limits upland areas beyond narrow

canyon walls. This lateral distance was

based on the greatest average distance

narrow-headed gartersnakes moved

from the water during the wet season at

two different sites on the Tularosa River

in New Mexico over a 3-year study with

a sample size of 69 individuals

(Jennings and Christman 2012, p. 12)

(see ‘‘Terrestrial Space Along Streams,’’

85 FR 23608, April 28, 2020, pp. 23614–

23616).

Subsequently, we received two

comments on the revised proposed

critical habitat rule (85 FR 23608; April

28, 2020) that a distance of 89 ft (27 m)

did not capture known brumation sites

on canyon walls used by narrow-headed

gartersnakes in Oak Creek Canyon in

Arizona (see Comment 43, below). As

explained in our response to comment

43 below, we increased the lateral

extent of critical habitat up to 328 ft

(100 m) in areas with steep canyon

walls to more accurately capture areas

used by the narrow-headed gartersnake

for brumation. This lateral extent also

limits upland areas beyond narrow

canyon walls, and we conclude that the

changes that we made in this rule

address all comments on this issue.

Comment 11: In response to the

original proposed critical habitat rule

(78 FR 41550; July 10, 2013), USFS

commented that the gartersnake has

strong fidelity for brumation or natal

sites.

Our Response: Although we have

information that the narrow-headed

gartersnake uses brumation sites, we are

not aware of any literature supporting a

conclusion that the species has strong

fidelity for these brumation sites. In this

designation, we include some areas that

capture the PBFs of brumation sites that

have been documented in telemetry

studies conducted 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 12: 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 narrow-headed

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 for the narrow-

headed gartersnake. 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 and contain at least one

of the PBFs. We acknowledge that in

some locations, the PBFs concerning

prey availability and presence of

nonnative aquatic predators are often in

degraded condition and may require

special management (see Changes to

Criteria Used to Identify Critical Habitat

in 85 FR 23608, April 28, 2020, pp. 85

FR 23617–23623; and see Regulation

Promulgation, below).

Comment 13: In response to the

original proposed critical habitat rule

(78 FR 41550; July 10, 2013), several

Federal agencies provided lists of

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specific areas included in proposed

critical habitat that do not have stream

flow requirements defined in PBF 1(A)

to support the narrow-headed

gartersnake or its corresponding prey

species identified in PBF 3. These

agencies identified reaches that lacked

PBF 1(A) in some areas along the

following streams included in the 2013

proposed critical habitat rule for the

narrow-headed gartersnake: Diamond

Creek, Little Creek, and Turkey Creek in

the Upper Gila River Subbasin; Eagle

Creek in the Middle Gila River

Subbasin; Dry Blue Creek, San

Francisco River, and South Fork Negrito

Creek in the San Francisco River

Subbasin; and Canyon Creek and

Carrizo Creek in the Upper Salt River

Subbasin. These areas included stream

reaches where water flow became

completely ephemeral along an

otherwise perennial or spatially

intermittent stream, and many included

the origin of streams, some of which

were outside of the known elevation

range of the species.

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 Diamond Creek and Gilita

Creek in the Upper Gila River Subbasin

Unit for narrow-headed gartersnake.

Based on information from USFS and

others related to lack of stream flow

along Diamond Creek and Gilita Creek,

designated critical habitat for the

narrow-headed gartersnake along

Diamond Creek ends 0.26 miles (mi)

(0.4 kilometers (km)) upstream from Star

Canyon, and critical habitat along Gilita

Creek ends upstream of Willow Creek.

The rule set that we applied in the 2020

revised proposed 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

the commenting Federal agencies

identified as not having stream flow

requirements for the narrow-headed

gartersnake.

Comment 14: In response to the

original proposed critical habitat rule

(78 FR 41550; July 10, 2013), USFS

stated that narrow-headed gartersnake

critical habitat in high montane

meadows and stream origins in

ponderosa pine and mixed conifer

forests does not have potential to

develop shoreline habitat as it is defined

in PBF 1(C): Shoreline habitat with

adequate structural complexity and

appropriate amounts of shrub- and

sapling-sized plants.

Our Response: The PBFs in the

revised proposed critical habitat rule (85

FR 23608; April 28, 2020) and this rule

do not include the term ‘‘shoreline

habitat’’ or the components that were

included in shoreline habitat in the

2013 proposed rule. Instead, PBFs 1(B)

and 1(D) focus on components that are

found throughout all habitat types used

by the narrow-headed gartersnake,

including organic and natural inorganic

structural features important to the

narrow-headed gartersnake that fall

within the stream channel and within

terrestrial habitat that is up to 328 ft

(100 m) from the active stream channel.

Comment 15: USFS 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 narrow-headed gartersnake due

to the current and likely future

conditions of these nonnative invasive

species. In response to the revised

proposed critical habitat rule (85 FR

23608; April 28, 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 narrow-headed

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 narrow-headed

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 revised

proposed critical habitat rule (85 FR

23608; April 28, 2020), we stated that

we were not changing any of the special

management considerations from the

2013 original proposed critical habitat

rule for the narrow-headed gartersnake

(see Special Management

Considerations or Protection in 85 FR

23608, April 28, 2020, p. 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 Special

Management Considerations or

Protection in 78 FR 41550, July 10,

2013, pp. 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

stated that proposed critical habitat for

the narrow-headed gartersnake included

areas outside of the known elevation

range and areas that do not have records

of the species, including portions of

Diamond Creek, Gilita Creek, and Iron

Creek in the Upper Gila River Subbasin.

Our Response: In the revised

proposed critical habitat rule (85 FR

23608; April 28, 2020), we included the

elevation range of narrow-headed

gartersnake as a PBF essential to the

conservation of the species and did not

include areas in the proposed critical

habitat designation outside of this

elevation range.

Comment 18: In response to the

revised proposed critical habitat rule (85

FR 23608; April 28, 2020), USFS stated

that East Fork Black River, Bear Wallow

Creek, and Fish Creek were not

considered occupied by narrow-headed

gartersnake in the original proposed

critical habitat rule (78 FR 41550; July

10, 2013), and that we did not provide

information to support these additions

in the 2020 revised proposed critical

habitat rule. USFS questioned the

validity of the Arizona Game and Fish

Department (AGFD) record for narrow-

headed gartersnake in Fish Creek and

further stated that Fish Creek was

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heavily impacted by the 2011 Wallow

Fire. USFS recommended removing East

Fork Black River, Bear Wallow Creek,

and Fish Creek from the final

designation.

Our Response: In the revised

proposed critical habitat rule (85 FR

23608; April 28, 2020), we reviewed

gartersnake occupancy to determine that

a stream or stream reach was occupied

at the time of listing for the narrow-

headed 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

between 1998 and 2019 (see Occupancy

Records, 85 FR 23608, p. 23617–23619)

(see Criteria Used To Identify Critical

Habitat). During this review, we became

aware of additional records for areas we

did not include in the 2013 proposed

rule, and so we included them in our

occupancy determination. While we did

not discuss individual gartersnake

records that contribute to occupancy in

the 2013 proposed rule or the 2020

revised proposed rule, we have these

records in our files. AGFD provided and

verified records of narrow-headed

gartersnakes in the East Fork Black

River, Bear Wallow Creek, and Fish

Creek (Arizona Game and Fish

Department 2013, entire; Ryan 2020,

pers. comm.). While the 2011 Wallow

Fire significantly reduced native fish

abundance in Fish Creek, native fish

have since recolonized the stream

(Nowak et al. 2017, Table 3). For these

reasons, we included these areas in this

final designation.

Comment 19: 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

ensure that their actions 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 20: In response to the

revised proposed critical habitat rule (85

FR 23608; April 28, 2020), USFS stated

that maintenance of adequate base flow

in Eagle Creek is impacted by State

water law and rights and outside of the

purview of USFS. USFS expressed

concern that Federal agencies may be

impacted by the Act’s section 7

reasonable and prudent measures that

are not implementable.

Our Response: We understand that

maintenance of adequate base flow in

streams is impacted by State water law

and rights that are outside of the

purview of USFS. Under section 7 of the

Act when evaluating the effects on

critical habitat, we consider impacts on

base flow from ongoing State water

management operations within the

designated units that are not within the

agencies’ discretion to modify to be part

of the baseline of an effects analysis.

Service policy states that section 7

consultation should result in reasonable

and prudent measures that minimize the

impacts of incidental take to the extent

reasonable and prudent. They should be

developed in coordination with the

action agency and applicant, in any, to

ensure that the measures are reasonable,

that they cause only minor changes to

the project, and that they are within the

legal authority and jurisdiction of the

agency or applicant to carry out.

Therefore, they must be implementable.

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 from 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 Act’s 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, 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

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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), USFS and

others stated that we need to provide a

reasonable, rational, and non-arbitrary

timeframe for restocking of streams

treated with piscicides, as the

application of a standard that would

determine adverse modification if the

prey base was affected as described for

7 or more days would in many cases

preclude the application of piscicides to

restore listed or at-risk aquatic species,

forsaking their recovery for gartersnakes.

Our Response: The purpose of the

designation of critical habitat is not to

evaluate every potential project or

action that could adversely affect or

modify designated critical habitat, but

rather to identify those areas critical to

the conservation of the narrow-headed

gartersnake. 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 of 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 overall

thresholds for adverse modification in

this rule. The appropriate process for

that determination is during the Act’s

section 7 process, during which specific

factors within the proposed action and

conditions within the project area can

be evaluated.

Comment 24: 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 required to

evaluate the potential incremental

impacts of a rulemaking only 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 can certify that

this 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 25: 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. For 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 conducted outreach to

relevant Federal, State, and local

municipalities and stakeholders, and

published public news releases to alert

the public to the proposals and request

public comments. Specifically, in the

proposed rules, we solicited information

from the public regarding potential

exclusions of areas based on

management plans or other conservation

efforts including partnerships, as well as

other information related to the species

and potential impacts of designating

critical habitat. This final rule outlines

our consideration of public comments

we received on both the original and

revised proposed rules.

State Comments

Comment 26: 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

rule, 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 27: 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 the narrow-

headed gartersnake is known both

historically and recently from all three

of 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. NMDGF also noted

that the proposal includes its Glenwood

State Fish Hatchery within the narrow-

headed gartersnake San Francisco River

Subbasin Unit.

Our Response: In the revised

proposed critical habitat rule (85 FR

23608; April 28, 2020), we reviewed

narrow-headed gartersnake occupancy

to determine that a stream or stream

reach was occupied at the time of listing

for the narrow-headed 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 between 1998 and 2019

(see Occupancy Records, 85 FR 23608,

p. 23617–23619) (see Criteria Used To

Identify Critical Habitat). As a result of

our review of occupancy and

implementation of our rule set for

stream length, we have added Red Rock

Wildlife Management Area, Bill Evans

Fish Area, and Heart Bar Wildlife Area

to the description of the Upper Gila

River Subbasin Unit in this final critical

habitat designation for the narrow-

headed gartersnake.

Comment 28: AGFD stated that the

revised proposed critical habitat rule (85

FR 23608; April 28, 2020) is adequate

for recovery of the narrow-headed

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

narrow-headed gartersnakes back into

historically occupied habitats to

contribute to recovery, regardless of

their current occupied status or their

critical habitat designation.

Our Response: We appreciate the

AGFD’s partnership in the conservation

and recovery of the narrow-headed

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gartersnake. We 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.

Comment 29: 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.

23633–23634). AGFD pointed out that

in the same discussion in the original

proposed critical habitat rule (78 FR

41550, July 10, 2013, pp. 41576–41577),

we discuss activities ‘‘that may affect

critical habitat, when carried out,

funded, or authorized by a Federal

agency [and that] 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 ‘‘are 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

also expressed 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: The change in wording

as it applies to the Application of the

‘‘Adverse Modification’’ Standard in the

2020 revised proposed critical habitat

rule (85 FR 23608, April 28, 2020) was

a response to correct an error in

phrasing from the original proposed

critical habitat rule (78 FR 41550, July

10, 2013). 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 Act’s section 7

process, during which specific factors

within the proposed action and

conditions within the project area can

be evaluated.

Comment 30: 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 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.

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 Act’s section 7

process, during which specific factors

within the proposed action and

conditions within the project area can

be evaluated. We understand that there

are no clear data to suggest that narrow-

headed gartersnakes must feed within 7

days of their last meal. As stated above,

we also agree that it is not possible to

determine and include thresholds for

adverse modification in this rule.

Therefore, in this rule, we removed the

time threshold that commenters

interpreted to limit fish removal to a 7-

day window.

Comment 31: NMDGF requested

exclusion for the Glenwood State Fish

Hatchery in the Whitewater Creek

Subunit of the San Francisco River

Subbasin Unit for the narrow-headed

gartersnake because there are no records

of the species within the hatchery

boundary and Whitewater Creek is not

perennial at the hatchery. NMDGF

further explains that the Service’s

Memorandum for the Intra-Service

Section 7 Endangered Species Act

Consultation for the Proposed Operation

and Maintenance of Hatchery Facilities

NM F–66 Project concurred with a ‘‘no

effect’’ determination for the narrow-

headed gartersnake because the snake is

not currently present.

Our Response: In the revised

proposed critical habitat rule (85 FR

23608; April 28, 2020), we reviewed

narrow-headed gartersnake occupancy

to determine that a stream or stream

reach was occupied at the time of listing

for narrow-headed 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 between 1998 and 2019

(see Occupancy Records, 85 FR 23608,

p. 23617–23619) (see Criteria Used To

Identify Critical Habitat). The segment

of Whitewater Creek included in the

critical habitat designation for the

narrow-headed gartersnake meets this

definition.

In the revised proposed critical

habitat rule (85 FR 23608; April 28,

2020) and this rule, we also define

perennial, intermittent, and ephemeral

as related to stream flow included in

PBF 1 for the narrow-headed

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; see also Physical or

Biological Features Essential to the

Conservation of the Species, below).

Although Whitewater Creek is

ephemeral at the Glenwood State Fish

Hatchery, it is perennial upstream of the

hatchery and downstream at its

confluence with the San Francisco

River, so the entire stream segment

meets our definition of critical habitat.

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

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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.

While the Glenwood State Fish

Hatchery along Whitewater Creek meets

our definition of critical habitat,

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 NMDGF’s request

to exclude the Glenwood State Fish

Hatchery along Whitewater Creek, we

are not excluding the area from this

final rule. See Consideration of Impacts

under Section 4(b)(2) of the Act, Private

or Other Non-Federal Conservation

Plans or Agreements and Partnerships,

in General, below.

Comment 32: New Mexico

Department of Agriculture (NMDA)

expressed support for excluding private

lands owned by Freeport-McMoRan

within the U-Bar Ranch property along

the Gila River from critical habitat for

the narrow-headed gartersnake. NMDA

stated that voluntary conservation

planning and actions on the property

are adequate for conserving the species.

Freeport-McMoRan Tyrone Inc. and

Pacific Western Land Company

(collectively known as ‘‘FMC’’) also

commented that lands owned by FMC

along the upper Gila River 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). They

stated that these management plans

protect and support habitat for aquatic

and riparian species, including native

prey species for the narrow-headed

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). In response to

FMC’s request to exclude their lands

along the upper Gila River 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 narrow-headed

gartersnake included in these plans. In

identifying critical habitat for the

narrow-headed gartersnake, we

identified those areas that meet the

definition of critical habitat under

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 PBFs in

occupied habitat for the narrow-headed

gartersnake differ from the PBFs

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. With respect to the Upper

Gila River Subbasin Unit for the narrow-

headed gartersnake, we determined that

the benefits of exclusion do not

outweigh the benefits of inclusion. See

Consideration of Impacts under Section

4(b)(2) of the Act, Private or Other Non-

Federal Conservation Plans or

Agreements and Partnerships, in

General, below.

Comment 33: 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 by

section 4(a)(3) of the Act to designate

critical habitat for listed species if we

find that the designation is prudent and

determinable, as we did for the narrow-

headed gartersnake, regardless of

whether we can foresee project

modifications that may be required.

Comment 34: NMDGF requested that

we exclude developed, human-made

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 human-made fish barriers are

in-water structures that fall within the

boundaries of habitats used by narrow-

headed 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 35: 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

narrow-headed gartersnake would not

result in significant impacts to the

environment. A copy of the final EA and

FONSI is available at http://

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 narrow-headed

gartersnake: Chemehuevi Indian Tribe,

Cocopah Indian Tribe, Colorado River

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Indian Tribes, Fort McDowell Yavapai

Nation, Fort Mojave Indian Tribe, Gila

River Indian Community (GRIC), 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

the narrow-headed gartersnake, the only

Tribal land included in the revised

proposed critical habitat designation (85

FR 23608; April 28, 2020) was land

owned by the San Carlos Apache Tribe

and the White Mountain Apache Tribe.

We also met with representatives of the

GRIC and White Mountain Apache

Tribe to discuss this proposed

designation. The GRIC expressed

concern regarding potential effects that

critical habitat may have on water

allocation. In communications with the

Service, the San Carlos Apache Tribe

expressed interest in being excluded

from the designation, and White

Mountain Apache Tribe sent a letter

requesting to be excluded from the

designation.

Comment 36: GRIC expressed concern

about how designation of critical habitat

for the narrow-headed gartersnake on

the Gila and San Francisco Rivers might

cause potential curtailment of water

inflow to San Carlos Reservoir and

subsequent downstream delivery to

GRIC pursuant to their water rights

settlement.

Our Response: We do not anticipate

water inflow to San Carlos Reservoir

and subsequent downstream delivery of

water to GRIC will be impacted by this

critical habitat designation. The

economic analysis outlines the

substantial baseline protections

currently afforded the narrow-headed

gartersnake throughout the designation,

and it includes a determination that the

impacts of this critical habitat

designation will be minimal (see

Consideration of Impacts under Section

4(b)(2) of the Act, Private or Other Non-

Federal Conservation Plans Related to

Permits Under Section 10 of the Act).

Comment 37: White Mountain

Apache Tribe requested that the White

Mountain Apache Homeland be

excluded from the designation of critical

habitat based on the White Mountain

Apache Tribe’s management and

conservation of narrow-headed

gartersnake habitat through several

measures. These measures include

formally approving the White Mountain

Apache Native Fish Management Plan

that includes prey species of the

narrow-headed gartersnake; enacting

Resolution 89–149 to designate streams

and riparian zones as sensitive fish and

wildlife areas; adopting a Water Quality

Protection Ordinance to promote the

health of Tribal waters and the people,

plants, and wildlife that depend on

them; and implementing overall holistic

management of wildlife and natural

resources within the Tribe’s Homeland.

White Mountain Apache Tribe also

stated that the designation would

infringe on Tribal sovereignty and

directly interfere with Tribal self-

government recognized as paramount in

Joint Secretarial Order No. 3206.

Our Response: We have reviewed the

request for exclusion from the White

Mountain Apache Tribe and excluded

all Tribal lands from the final

designation under section 4(b)(2) of the

Act (see Consideration of Impacts under

Section 4(b)(2) of the Act, below).

Because all Tribal lands have been

excluded from this final critical habitat

designation, any required conservation

activities on Tribal lands would be

based solely on the presence of the

narrow-headed gartersnake on Tribal

lands due to the listing of the species as

a threatened species under the Act (see

79 FR 38678; July 8, 2014).

Public Comments

Comment 38: Several commenters

stated that designating critical habitat

for the narrow-headed gartersnake is not

prudent because disclosing where

individuals can be found would

increase illegal taking of these 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.

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 narrow-headed

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

narrow-headed 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 the 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, below). 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 supports the conclusion that

the designation of critical habitat is

prudent and determinable for the

narrow-headed gartersnake.

Comment 39: 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

narrow-headed 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 narrow-

headed 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

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conclude that the designation of critical

habitat is determinable for the narrow-

headed 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 narrow-headed

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 40: Two commenters stated

that ephemeral reaches of streams, as

well as intermittent streams, can

provide habitat for narrow-headed

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

narrow-headed 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 explain that streams that have

perennial or spatially intermittent flow

can provide stream habitat for the

species (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).

While streams with intermittent flow

reaches do serve as habitat for narrow-

headed gartersnakes and are included in

the designation, ephemeral streams do

not. Within the range of the narrow-

headed gartersnake, perennial streams

become ephemeral as they approach

their headwaters. Narrow-headed

gartersnakes have not been found in

these ephemeral reaches because fish

communities become sparse to

nonexistent in these areas so that the

gartersnake prey base is likely absent. In

addition, there is no upstream habitat

above the headwaters of a stream, so

these ephemeral reaches do not provide

connectivity and are not included in

critical habitat.

Comment 41: One commenter stated

that we should maintain a shoreline

component as part of the PBFs that

identify critical habitat. They stated

their view that eliminating the shoreline

component could result in improperly

leaving out habitats that narrow-headed

gartersnakes use because they span the

transition between upland riparian and

in-stream habitats.

Our Response: We do not use the term

‘‘shoreline habitat’’ in the PBFs for the

narrow-headed gartersnake 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 PBF 1 focuses on the organic

and natural inorganic structural features

important to the narrow-headed

gartersnake that fall within the stream

channel and still encompass the

transition between in-stream habitat and

land habitat.

Comment 42: One commenter stated

that there are no currently available data

on the effects of pollutants on the

recruitment of narrow-headed

gartersnakes; therefore, including PBF

1(C) for the narrow-headed 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 the effects of

water pollutants on the recruitment of

the narrow-headed 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 direct

threat to the narrow-headed 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 fish prey base for the

narrow-headed 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 fish prey base of the narrow-headed

gartersnake.

Comment 43: Two commenters stated

that 89 ft (27 m) from the water’s edge

does not capture the lateral distance

from streams that individual narrow-

headed gartersnakes moved for

brumation in Oak Creek Canyon,

Arizona, which is between 276 and 328

ft (84 and 100 m).

Our Response: We agree that

terrestrial habitat as defined in PBF 1(D)

for the narrow-headed gartersnake does

not include all known brumation sites

for the species, including several sites

located on steep slopes in Oak Creek

Canyon that we discussed in the revised

proposed rule (see ‘‘Terrestrial Space

Along Streams,’’ 85 FR 23608, April 28,

2020, pp. 23614–23616). In the 2020

revised proposed rule, we modified that

lateral extent boundary of critical

habitat to 89 ft from the active channel

of a stream based on the greatest average

distance moved from water during the

wet season on the Tularosa River in

New Mexico from a 3-year study with a

sample size of 69 individuals at two

different sites. Because this study was

conducted during the active season, it

does not include brumation sites. We

also did not include areas for brumation

in PBF 1(D) for the narrow-headed

gartersnake. This was an oversight, and

we have added brumation to PBF 1(D)

for narrow-headed gartersnake in this

final rule. As a result, we have also

increased the lateral extent of critical

habitat for the narrow-headed

gartersnake up to 328 ft (100 m) from

the water’s edge, so that critical habitat

includes additional areas for brumation

along streams within narrow-walled

canyons such as Oak Creek Canyon in

Arizona (see Summary of Essential

Physical or Biological Features, below).

All areas included in this final rule as

a result of increasing the lateral extent

of critical habitat units was proposed as

critical habitat for the narrow-headed

gartersnake in the 2013 original

proposed critical habitat rule (78 FR

41550; July 10, 2013).

Comment 44: One commenter stated

that the proposed critical habitat for the

narrow-headed gartersnake in Eagle

Creek in Greenlee County, Arizona,

lacks recent detections, is primarily on

Tribal land, and lacks habitat for the

species because it is dominated by

nonnative aquatic predators.

Our Response: In the revised

proposed critical habitat rule (85 FR

23608; April 28, 2020), we reviewed

gartersnake occupancy to determine that

a stream or stream reach was occupied

at the time of listing for the narrow-

headed gartersnake if it is within the

historical range of the species, contains

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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

between 1998 and 2019 (see Occupancy

Records, 85 FR 23608, p. 23617–23619)

(see Criteria Used To Identify Critical

Habitat). The segment of Eagle Creek

included in critical habitat for the

narrow-headed gartersnake meets this

definition, but the areas of it owned by

the San Carlos Apache Tribe were

excluded from this final designation.

Comment 45: 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 narrow-

headed 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 rather

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

narrow-headed 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

narrow-headed gartersnakes in some of

the areas included in the original

proposed critical habitat rule (78 FR

41550; July 10, 2013). All 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 narrow-headed 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,

below). An increase in a species’

detection information often occurs as a

result of a species being listed as an

endangered or threatened species, due

to increased survey effort spurred by

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 the best available

information supports a conclusion that

these areas were occupied at the time of

listing, we have included these areas in

critical habitat (see Criteria Used To

Identify Critical Habitat, below).

Comment 46: Multiple comments

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

narrow-headed 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 narrow-headed

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 narrow-headed

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 narrow-

headed 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

intervening areas that have the PBFs.

We consider these intervening areas

occupied because the species occurs

upstream and downstream and multiple

PBFs are present that allow the species

to move through these stream reaches.

Comment 47: 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 narrow-headed

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 narrow-headed

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

narrow-headed gartersnake.

Areas subject to stocking of predatory

sportfish are not occupied by the

narrow-headed gartersnake. We have

not identified any unoccupied areas that

meet the definition of critical habitat.

Please see our response to Comment 50,

below.

Comment 48: 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 narrow-headed 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 (Holycross et

al. 2006). Although we acknowledge

that we do not have a thorough

understanding of narrow-headed

gartersnake population dynamics in the

presence of nonnative aquatic predators

as compared to other areas, areas with

aquatic predators that are currently

known to support gartersnake

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populations are included in this critical

habitat designation. That said, we think

it is reasonable to conclude, based on

the best scientific data currently

available, that streams or stream reaches

should not be included in the final

designation if the last known occupancy

is prior to 1998 and the stream reaches

have experienced a rapid decline in

native prey species coupled with an

increase in nonnative aquatic predators

since gartersnakes were detected in

these areas prior to 1998 (85 FR 23608;

April 28, 2020).

Comment 49: Several commenters

stated that designation of unoccupied

critical habitat is needed for the narrow-

headed gartersnake. Specifically, habitat

fragmentation, small populations, and

genetics threaten the species with

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 narrow-headed

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 the

species and which 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 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

narrow-headed 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

PBFs 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 PBFs are likely important to

the overall conservation strategy for the

narrow-headed 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 narrow-

headed gartersnake’s persistence, and

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 narrow-headed 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 50: 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. As discussed in the final

listing rule (79 FR 38678; July 8, 2014),

continued population decline and

extirpations threaten the genetic

representation of the narrow-headed

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 which 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 narrow-headed gartersnake, not

all of the species’ 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 PBFs 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 PBFs are likely important to

the overall conservation strategy for the

narrow-headed 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 narrow-

headed gartersnake’s persistence, and

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 narrow-headed 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 there are recent sightings of narrow-

headed gartersnakes in Turkey Creek

(which is part of the Upper Gila River

Subbasin), so this area should not have

been removed from the original

proposed critical habitat designation.

Our Response: This record was from

2020, and we are not aware of any

confirmed records between 1998 and

2019, as delineated in our rule set (see

Occupancy Records, 85 FR 23608, p.

23617–23619) (see Criteria Used To

Identify Critical Habitat), that document

the narrow-headed gartersnake in

Turkey Creek, so this site is not

included in our critical habitat

designation because it does not meet the

definition of an occupied reach for the

species.

Comment 52: One commenter

requested confirmation that upper and

lower Oak Creek have been removed

from critical habitat, both of which have

recent sightings of narrow-headed

gartersnakes.

Our Response: This area has not been

removed from the critical habitat

designation. In the revised proposed

critical habitat rule (85 FR 23608; April

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28, 2020), we reviewed gartersnake

occupancy to determine that a stream or

stream reach was occupied at the time

of listing for narrow-headed 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 between 1998 and 2019.

The segment of Oak Creek from its

confluence with Sterling Canyon

downstream to 800 ft before its

confluence with Turkey Creek meets

this definition and is included in this

critical habitat designation for the

narrow-headed gartersnake.

Comment 53: 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 require special

management considerations or

protection (see 81 FR 7414; February 11,

2016). In the 2020 revised proposed

critical habitat rule (85 FR 23608; April

28, 2020), we estimated that maximum

longevity for the narrow-headed

gartersnake is 15 years, so it is

reasonable to conclude that a

gartersnake detected between 1998 and

2019 represents a population that could

still be present at the time of listing in

2014, depending on the extent of threats

in the area. We also included narrow-

headed 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 54: One commenter stated

that livestock grazing would have a

significant impact on habitat for the

narrow-headed 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 narrow-headed

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 55: One commenter stated

that while we note that critical habitat

units that have nonnative fish require

special management, we do not explain

how this management will be

accomplished or whether it is even

possible to reduce nonnatives to a level

that will support narrow-headed

gartersnakes.

Our Response: We expect the science

of removing nonnative fish will

continue to evolve over time; for that

reason, we did not prescribe specific

methods of special management as part

of this final designation. At this time, in

the areas that require management of

nonnative fish, special management

may involve using mechanical or

chemical methods to remove nonnative,

invasive fish species.

Comment 56: 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 57: Several commenters

stated that we should consider an

increased scope of economic impacts to

small entities for the critical habitat

rule. They also stated that the economic

impact of the proposed designation

would be 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

(DEA) to examine the incremental costs

associated with the designation of

critical habitat. Our DEA did not find

that there would be significant

economic impacts to agriculture from

this designation of critical habitat. This

analysis 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

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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 narrow-headed

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 narrow-headed gartersnake are

likely limited to additional

administrative effort. Many of the areas

designated as critical habitat for the

narrow-headed gartersnake are already

designated critical habitat for other

listed species, and thus the designation

of critical habitat for the narrow-headed

gartersnake is not anticipated to cause

an incremental increase in economic

effects.

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 narrow-headed gartersnake are

likely to be minimized because the

species is already listed.

Comment 58: 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, our DEA to examine the

incremental costs associated with the

designation of critical habitat. The DEA

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. Such designation

does not allow the government or public

to access private lands. Such

designation does not require

implementation of restoration, recovery,

or enhancement measures by non-

Federal landowners. Where a landowner

requests Federal agency funding or

authorization for an action that may

affect a listed species or critical habitat,

the Federal agency would be required to

consult with the Service under section

7(a)(2) of the Act. However, even if the

Service were to conclude that the

proposed activity would result in

destruction or adverse modification of

the critical habitat, the Federal action

agency and the landowner are not

required to abandon the proposed

activity, or to restore or recover the

species; instead, they must implement

‘‘reasonable and prudent alternatives’’

to avoid destruction or adverse

modification of critical habitat.

Under the first prong of the Act’s

definition of critical habitat, areas

within the geographical area occupied

by the species at the time it was listed

are included in a critical habitat

designation if they contain physical or

biological features (1) which are

essential to the conservation of the

species and (2) which may require

special management considerations or

protection. For these areas, critical

habitat designations identify, to the

extent known using the best scientific

and commercial data available, those

physical or biological features that are

essential to the conservation of the

species (such as space, food, cover, and

protected habitat). In identifying those

physical or biological features that occur

in specific occupied areas, we focus on

the specific features that are essential to

support the life-history needs of the

species, including, but not limited to,

water characteristics, soil type,

geological features, prey, vegetation,

symbiotic species, or other features. A

feature may be a single habitat

characteristic or a more complex

combination of habitat characteristics.

Features may include habitat

characteristics that support ephemeral

or dynamic habitat conditions. Features

may also be expressed in terms relating

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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. The implementing regulations

at 50 CFR 424.12(b)(2) further delineate

unoccupied critical habitat by setting

out three specific parameters: (1) When

designating critical habitat, the

Secretary will first evaluate areas

occupied by the species; (2) 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; and (3)

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

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 the species.

Similarly, critical habitat designations

made on the basis of the best available

information at the time of designation

will not control the direction and

substance of future recovery plans,

habitat conservation plans (HCPs), or

other species conservation planning

efforts if new information available at

the time of those 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 regulations at 50 CFR

424.12, 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, we may consider an appropriate

quality, quantity, and spatial and

temporal arrangement of habitat

characteristics in the context of the life-

history needs, condition, and status of

the species. These characteristics

include, but are not limited to, space for

individual and population growth and

for normal behavior; food, water, air,

light, minerals, or other nutritional or

physiological requirements; cover or

shelter; sites for breeding, reproduction,

or rearing (or development) of offspring;

and habitats that are protected from

disturbance.

Summary of Essential Physical or

Biological Features

We derive the specific physical or

biological features essential to the

conservation of the narrow-headed

gartersnake from studies of the species’

habitat, ecology, and life history as

described below. Additional

information can be found in the

proposed and final listing rules

published in the Federal Register on

July 10, 2013 (78 FR 41500), and July 8,

2014 (79 FR 38678), respectively. The

physical or biological features identified

here focus primarily on foraging and

dispersal habitat and secondarily on

thermoregulation, shelter, and

brumation habitat because most of the

habitat relationship research data

derived from studies of these activities

for the narrow-headed gartersnake.

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We define the stream flow regimes

that provide stream habitat for the

narrow-headed gartersnake based on

stream flow definitions in Levick et al.

(2008, p. 6) and Stromberg et al. (2009,

p. 330). A perennial stream or portion

of a stream is defined as having surface

flow continuously year-round, except

for infrequent periods of severe drought

(Levick et al. 2008, p. 6). An

intermittent stream is a stream where

portions flow continuously only at

certain times of the year (Levick et al.

2008, p. 6). An intermittent stream flows

when it receives water from a spring, a

ground-water source, or a surface source

(such as melting snow (i.e., seasonal)).

During the dry seasons, frequently

compounded by high

evapotranspiration of watershed

vegetation, the groundwater table may

drop below the elevation of the

streambed, causing surface flow to cease

or reduce to a series of separate pools

or short areas of flow (Gordon et al.

2004, p. 51). An ephemeral stream is

usually dry except for brief periods

immediately following precipitation,

and its channel is at all times above the

groundwater table (Levick et al. 2008, p.

6). In the range of the narrow-headed

gartersnake, many streams have reaches

with year-round water that are separated

by intermittent or ephemeral reaches of

flow, as a result of differences in

geology along the stream. This variation

of flow along a stream is common

enough in the Southwest that

hydrologists use the terms

‘‘interrupted,’’ ‘‘perennial interrupted,’’

or ‘‘spatially intermittent’’ to describe

the spatial segmentation of a dryland

stream into reaches that are perennial,

intermittent, or ephemeral (Levick et al.

2008, p. 6; Stromberg et al. 2009, p. 330;

Stromberg et al. 2013, p. 413). A stream

that is interrupted, perennially

interrupted, or spatially intermittent has

perennial flow occurring in areas with

shallow bedrock or high hydraulic

connectivity to regional aquifers, and

ephemeral to intermittent flow

occurring in areas with deeper alluvial

basins or greater distance from the

headwaters (Stromberg et al. 2009, p.

330). The spatial patterning of wet and

dry reaches on spatially intermittent

streams changes through time in

response to climatic fluctuations and to

human modifications of the landscape

(Stromberg et al. 2009, p. 331). In the

remainder of this document, we use the

terms ‘‘perennial,’’ ‘‘spatially

intermittent,’’ and ‘‘ephemeral’’ in

accordance with the above definitions.

Narrow-headed gartersnakes are

primarily found in rocky stretches of

canyon-bound headwater streams that

have perennial flow or limited spatially

intermittent flow that is primarily

perennial. Narrow-headed gartersnakes

have been documented in pools and

shallow portions of an intermittent flow

reach of the Blue River with wet areas

separated by dry segments of 0.6 to 1.2

miles (1 to 2 km) in length (Cotten et al.

2017, p. 687). The wetted areas where

gartersnakes were detected also had

abundant native prey of the narrow-

headed gartersnake, indicating that

these areas may provide greater foraging

opportunities during low flow periods

(Cotten et al. 2017, p. 687). However,

ephemeral reaches of streams do not

provide habitat for narrow-headed

gartersnakes. Within the range of the

narrow-headed gartersnake, perennial

streams become ephemeral as they

approach their headwaters. Narrow-

headed gartersnakes have not been

found in these ephemeral reaches

because their fish prey base is likely

absent and there is no upstream

perennial habitat, so the ephemeral

reaches do not provide connectivity.

Narrow-headed gartersnakes depend

on terrestrial and aquatic habitat for all

of their life-history functions, so it is

important that hydrologic processes are

present to maintain both the terrestrial

and aquatic components of habitat for

the species. Hydrologic processes are

the flow regime and physical hydrologic

and geomorphic connection that create

and maintain a stream channel and

continuously redefine the boundary

between aquatic and terrestrial habitat

used by the narrow-headed gartersnake.

We have determined that the

following physical or biological features

are essential to the conservation of the

narrow-headed gartersnake:

1. Perennial streams or spatially

intermittent streams that provide both

aquatic and terrestrial habitat that

allows for immigration, emigration, and

maintenance of population connectivity

of narrow-headed gartersnakes and

contain:

(A) Pools, riffles, and cobble and

boulder substrate, with a low amount of

fine sediment and substrate

embeddedness;

(B) Organic and natural inorganic

structural features (e.g., cobble bars,

rock piles, large boulders, logs or

stumps, aquatic vegetation, vegetated

islands, logs, and debris jams) in the

stream channel for basking,

thermoregulation, shelter, prey base

maintenance, and protection from

predators;

(C) Water quality that meets or

exceeds applicable State surface water

quality standards; and

(D) Terrestrial habitat up to 328 feet

(100 meters) from the active stream

channel (water’s edge) that includes

flood debris, rock piles, and rock walls

containing cracks and crevices, small

mammal burrows, downed woody

debris, and streamside vegetation (e.g.,

alder, willow, sedges, and shrubs) for

thermoregulation, shelter, brumation,

and protection from predators

throughout the year.

2. Hydrologic processes that maintain

aquatic and riparian habitat through:

(A) A natural flow regime that allows

for periodic flooding, or if flows are

modified or regulated, a flow regime

that allows for the movement of water,

sediment, nutrients, and debris through

the stream network, as well as

maintenance of native fish populations;

and

(B) Physical hydrologic and

geomorphic connection between the

active stream channel and its adjacent

terrestrial areas.

3. A combination of native fishes, and

soft-rayed, nonnative fish species such

that prey availability occurs across

seasons and years.

4. An absence of nonnative aquatic

predators, such as 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 narrow-headed

gartersnakes is not inhibited and

maintenance of viable prey populations

is still occurring.

5. Elevations of 2,300 to 8,200 feet

(700 to 2,500 meters).

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 narrow-headed

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 narrow-headed 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

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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 predator

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. For

activities planned within critical

habitat, we encourage interested parties

to contact the local Ecological Services

field office (see

FOR FURTHER

INFORMATION CONTACT

).

Criteria Used To Identify Critical

Habitat

As required by section 4(b)(2) of the

Act, we use the best scientific data

available to designate critical habitat. In

accordance with the Act and our

implementing regulations at 50 CFR

424.12(b), we review available

information pertaining to the habitat

requirements of the species and identify

specific areas within the geographical

area occupied by the species at the time

of listing and any specific areas outside

the geographical area occupied by the

species to be considered for designation

as critical habitat. We are not

designating any areas as critical habitat

outside the geographical area occupied

by the species at the time of listing

because we have not identified any

unoccupied areas that meet the

definition of critical habitat. Sites

within the Gila River, San Francisco

River, Salt River, and Verde River

watersheds were previously occupied

by the narrow-headed gartersnake.

While we know the conservation of the

species will depend on increasing the

number and distribution of populations

of the narrow-headed 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

narrow-headed 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 narrow-

headed 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 narrow-headed

gartersnake species to reach recovery,

there are no unoccupied areas that are

currently essential to the species

conservation and that should be

designated as critical habitat.

To identify areas for critical habitat

for the narrow-headed gartersnake, we

used a variety of sources for species data

including fish 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 narrow-

headed gartersnake species across its

range. Other sources for current records

of the narrow-headed gartersnake

included Christman and Jennings (2017,

entire), Hellekson (2012, entire),

Jennings et al. (2017, entire), Jennings

and Christman (2019, entire), and

Jennings et al. (2018). In addition to

reviewing gartersnake-specific survey

reports, we also focused on survey

reports and heritage data from State

wildlife agencies for fish as they

captured important data on the existing

community ecology that affects the

status of the narrow-headed gartersnake

within its range. In addition to species

data sources, we used publicly available

geospatial datasets depicting water

bodies, stream flow, elevation, and

aerial imagery to identify areas for

critical habitat designation.

We determined that a stream or

stream reach was occupied at the time

of listing for narrow-headed 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 has a last

known record of occupancy between

1998 and 2019. We determined

occupancy at the time of listing for the

narrow-headed gartersnake by reviewing

all records for the species in

conjunction with expected survivorship

of the species, subsequent surveys in

areas that had no detection of the

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.

Narrow-headed gartersnakes may live

up to 10 years or longer in the wild

(Rosen and Schwalbe 1988, p. 38). An

individual narrow-headed gartersnake

captured in the wild as an adult was

kept in captivity for 11 years and is

estimated to be 16 years old (Ryan 2020,

pers. comm.). Based on this information,

we estimate maximum longevity for the

narrow-headed gartersnake is 15 years,

so that it is reasonable to conclude that

a gartersnake detected between 1998

and 2019 represents a population that

could still be present at the time of

listing in 2014, 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 final

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.

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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

2014. 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 narrow-headed 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 narrow-headed

gartersnake.

As explained in the final listing rule

(79 FR 38678, July 8, 2014, pp. 38688–

38702), aquatic vertebrate survey efforts

throughout the range of the narrow-

headed gartersnake indicate that native

prey species of narrow-headed

gartersnakes have decreased or are

absent, while nonnative predators of

gartersnakes and their prey, including

bullfrogs, crayfish, and spiny-rayed fish,

continue to increase in many of the

areas where narrow-headed gartersnakes

were present in the 1980s (Emmons and

Nowak 2012, pp. 11–14; Gibson et al.

2015, pp. 360–364, Jennings et al. 2020,

p. 15). We acknowledge that narrow-

headed 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). We also acknowledge that we do

not have a good understanding of why

gartersnake populations are able to

survive in some areas with nonnative

aquatic predators and not in other areas.

However, we think it is reasonable to

conclude that streams and stream

reaches 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 the narrow-

headed 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 of this species are

generally small, isolated, and in decline,

it is not likely that the species has

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 was present but

not detected during surveys. However,

we did not include streams where

narrow-headed 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 the narrow-

headed 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 the

narrow-headed 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 a male narrow-

headed gartersnake tracked for 51 days

over 3 years during the dry and wet

seasons was approximately 1,312 ft (400

m) (Jennings and Christman 2012, p.

10). The maximum longitudinal

distance measured across home ranges

areas ranged from 82 to 656 ft (25 to 200

m) for eight other narrow-headed

gartersnakes tracked at least 6 days over

1 to 2 years (Jennings and Christman

2012, pp. 9–10). These longitudinal

home range distances were all

determined from adult gartersnakes and

did not inform how juvenile

gartersnakes are dispersing along a

stream. Juvenile dispersal is important

because snakes of different age classes

behave differently, and juvenile

gartersnakes may move farther along a

stream as they search for and establish

suitable home ranges than do adults

with established home ranges. Because

we have no information on how juvenile

narrow-headed gartersnakes disperse,

we used information from a long-term

dispersal study on neonate, juvenile,

and adult age classes of the Oregon

gartersnake (Thamnophis atratus

hydrophilus) in a free-flowing stream

environment in northern California

(Welsh et al. 2010, entire). This is the

only dispersal study available for

another aquatic Thamnophis species in

the United States, so we used it as a

surrogate for determining upstream and

downstream movements of narrow-

headed 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

narrow-headed gartersnake observation

record.

In this final rule, we modified the

lateral extent of critical habitat to

include areas of brumation habitat since

we inadvertently left out brumation

habitat as part of PBF 1(D) in the revised

proposed rule (85 FR 23608; April 28,

2020). We now incorporate the best

information available on brumation

habitat and other terrestrial habitat use

of the narrow-headed gartersnake to

inform lateral boundaries of each unit

and subunit of critical habitat. There are

three reported narrow-headed

gartersnakes using brumation sites on

steep slopes in Oak Creek Canyon,

Arizona (Nowak 2006, pp. 19–20).

Horizontal distances from stream

centerline to these brumation sites

ranged between 276 and 328 ft (84 and

101 m) (Nowak 2015, pers. comm.).

There were also at least five other

individual narrow-headed gartersnakes

overwintering at brumation sites that

were not on steep slopes at 66 to 98 ft

(20 to 30 m) from the water’s edge

(Nowak 2006, pp. 20–21). The distance

from the stream appeared to be

dependent on the adjacent terrestrial

topography so that gartersnakes were

found farther from the stream in steeper

terrain. The Nowak (2006) study is the

only study that has documented

brumation sites of telemetered narrow-

headed gartersnakes.

Although we have no information on

brumation sites in New Mexico, we

have information on how narrow-

headed gartersnakes moved in three

different stream channels during the

active season. A telemetry study of

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narrow-headed gartersnakes on the

Tularosa River, Gila River, and

Whitewater Creek during two active

(wet and dry) seasons of narrow-headed

gartersnakes found individuals an

average of 58.7 ft (17.9 m) from water

across four different sites on the three

streams with a sample size of 69

individuals (Jennings and Chirstman

2012, pp. 9–10). Narrow-headed

gartersnakes were found with lowest

average distance of 22.7 ft (6.9 m)

during the dry season of 2010, and

highest average distance of 88.3 ft (26.9

m) during the wet season in 2010

(Jennings and Chirstman 2012, pp. 9–

10). While narrow-headed gartersnakes

in New Mexico have been documented

up to 285 ft (87 m) from water, most

snakes are found within 3.28 ft (1 m) of

the water’s edge during both active

seasons (Jennings and Christman 2012,

pp. 9–10). During the active season,

individual narrow-headed gartersnakes

were most often found outside of water

under boulders, small rocks, and broken

concrete slabs located less than 328 ft

(100 m) from the water in Oak Creek

and West Fork Oak Creek (Nowak 2006,

p. 26).

Sites much farther from water where

gartersnakes were found in both Arizona

and New Mexico during the active

season may provide lower predation

risk, protection from flooding, and

warmer temperatures that are

advantageous during gestation, after a

large meal, or when snakes are more

vulnerable prior to molting (Jennings

and Christman 2012, p. 21). Brumation

sites documented in Arizona by Nowak

(2006) are likely higher in steeper

terrain because of the thermal gradient

in canyon habitats during winter:

Temperatures increase dramatically in

areas hit by sun at the tops of these

canyons that get some amount of direct

sunlight in winter. Higher brumation

sites may also prevent the gartersnakes

from being flooded out of these sites

during high stream flow events.

Therefore, in this final rule, we

delineate lateral extent of critical habitat

boundaries of a stream to fall within 328

ft (100 m) of the active channel of a

stream. Lateral extent varies based on

topography as explained above. The

active channel effectively defines a river

or stream as a feature on the landscape

(Mersel and Lichvar 2014, pp. 11–12).

The active channel is established and

maintained by flows that occur with

some regularity (several times per year

to several times per decade), but not by

very rare and extremely high flood

events. The outer limits of the active

channel can generally be defined by

three primary indicators that together

form a discernable mark on the

landscape: A topographic break in

slope, change in vegetation

characteristics, and change in sediment

characteristics (Mersel and Lichvar

2014, pp. 13–14). The active channel is

often a fairly obvious and easy feature

to identify in the field, allowing for

rapid and consistent identification

(Mersel and Lichvar 2014, p. 14).

Further, the active channel can be

consistently recognized by the public.

Any area that was added in this final

rule as a result of increasing the lateral

extent of critical habitat units was

included in the 2013 original proposed

critical habitat rule for the narrow-

headed gartersnake (78 FR 41550; July

10, 2013).

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 the narrow-

headed gartersnake from 1998 to 2019.

We then examined these areas to

determine if narrow-headed

gartersnakes could still occur in them,

as described below.

2. We identified the streams in which

narrow-headed gartersnakes were found

since 1998 (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 2,300 ft or

above 8,200 ft in elevation using USGS

National Elevation Dataset.

4. We identified perennial,

intermittent, and ephemeral reaches of

streams. We removed upstream end

reaches of streams that are ephemeral or

intermittent based on FCode attribute of

the flowline layer in the USGS National

Hydrography Dataset or information

from peer review and public comments.

5. We identified native and nonnative

prey species along each stream using

geospatial datasets, literature, peer

review, and public comments. We

removed stream reaches that did not

have prey species.

6. We identified and removed stream

reaches with an abundance of nonnative

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

narrow-headed 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 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 narrow-headed

gartersnake survey records from 1998

forward both upstream and downstream

of the private land and have stream

reaches with PBFs 1 and 2.

9. We used a surrogate species to

determine potential neonate dispersal

along a stream, which is 2.2 mi (3.6 km).

We then identified the most upstream

and downstream records of narrow-

headed gartersnake along each

continuous stream reach determined by

criteria 1 through 8, above, and

extended the reach to include this

dispersal distance.

10. After identifying the stream

reaches that met the above parameters,

we then connected those reaches

between that 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 range of the

maximum distance that narrow-headed

gartersnakes have been documented

from the water’s edge in streams, which

is 98 to 328 ft (30 to 100 m), to capture

the upper limit of terrestrial habitat

needed by the species for brumation,

thermoregulation, and protection from

predators. We used the USGS National

Hydrography Dataset, wetland layer of

the Service’s National Wetlands

Inventory dataset, and aerial

photography in Google Earth Pro to

identify the water’s edge in streams

(active channel).

12. We removed terrestrial areas

between 30 m and 100 m lateral extent

of the active channel that do not contain

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PBFs and areas beyond steep walled

canyons that are not accessible to the

species.

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 PBFs necessary for the narrow-

headed 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 will 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 applies to actions

involving such fish barriers.

We are designating as critical habitat

lands that we have determined were

occupied at the time of listing in 2014

and that contain one or more of the

PBFs 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 PBFs being present to

support the narrow-headed

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 narrow-headed gartersnake’s use of

that habitat.

The critical habitat designation is

defined by the map or 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 http://

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 narrow-headed

gartersnake. The critical habitat areas

we describe below constitute our

current best assessment of areas that

meet the definition of critical habitat for

the narrow-headed gartersnake.

The eight areas we designate as

critical habitat for the narrow-headed

gartersnake are: (1) Upper Gila River

Subbasin; (2) San Francisco River

Subbasin; (3) Blue River Subbasin; (4)

Eagle Creek; (5) Black River Subbasin;

(6) Canyon Creek; (7) Tonto Creek

Subbasin; and (8) Verde River Subbasin.

Table 1 shows the critical habitat units

and the approximate area of each unit.

All units are considered occupied at the

time of listing.

TABLE 1—C

RITICAL

H

ABITAT

U

NITS FOR

N

ARROW

-H

EADED

G

ARTERSNAKE

[Area estimates reflect all land within critical habitat unit boundaries]

Unit Subunit

Land ownership by type acres

(hectares) Size of unit

Federal State Tribal Private

1. Upper Gila River

Subbasin. Gila River ...................... 1,191 (482) 315 (127) ........................ 2,267 (917) 3,773 (1,527)

West Fork Gila River .... 615 (249) 228 (92) ........................ 21 (8) 864 (350)

Little Creek ................... 281 (114) 9 (4) ........................ ........................ 291 (118)

Middle Fork Gila River 978 (396) ........................ ........................ ........................ 978 (396)

Iron Creek ..................... 111 (45) ........................ ........................ ........................ 111 (45)

Gilita Creek ................... 376 (152) ........................ ........................ ........................ 376 (152)

Black Canyon ............... 300 (121) ........................ ........................ 8 (3) 308 (125)

Diamond Creek ............ 231 (93) ........................ ........................ 73 (29) 303 (123)

Unit Total ............... ....................................... 4,084 (1,653) 553 (224) ........................ 2,368 (958) 7,005 (2,835)

2. San Francisco River

Subbasin. San Francisco River ..... 2,128 (861) ........................ ........................ 1,194 (483) 3,322 (1,344)

Whitewater Creek ......... 254 (103) 3 (1) ........................ 125 (51) 382 (155)

Saliz Creek ................... 194 (78) ........................ ........................ 68 (27) 261 (106)

Tularosa River .............. 444 (180) ........................ ........................ 471 (191) 915 (370)

Negrito Creek ............... 543 (220) ........................ ........................ 90 (36) 632 (256)

South Fork Negrito

Creek. 362 (147) ........................ ........................ 20 (8) 382 (155)

Unit Total ............... ....................................... 3,924 (1,588) 3 (1) ........................ 1,967 (796) 5,895 (2,386)

3. Blue River Subbasin Blue River ..................... 2,595 (1,050) ........................ ........................ 430 (174) 3,025 (1,224)

Campbell Blue Creek ... 200 (81) ........................ ........................ 21 (8) 220 (89)

Dry Blue Creek ............. 122 (50) ........................ ........................ ........................ 122 (50)

Unit Total ............... ....................................... 2,918 (1,181) ........................ ........................ 450 (182) 3,368 (1,363)

4. Eagle Creek .............. ....................................... 84 (34) ........................ ........................ 0.4 (0.2) 84 (34)

Unit Total ............... ....................................... 84 (34) ........................ ........................ 0.4 (0.2) 84 (34)

5. Black River Subbasin Black River ................... 796 (322) ........................ ........................ ........................ 796 (322)

Bear Wallow Creek ...... 183 (74) ........................ ........................ ........................ 183 (74)

North Fork Bear Wallow

Creek. 80 (32) ........................ ........................ ........................ 80 (32)

Reservation Creek ........ 149 (60) ........................ ........................ ........................ 149 (60)

Fish Creek .................... 135 (55) ........................ ........................ ........................ 135 (55)

East Fork Black River .. 436 (176) ........................ ........................ ........................ 436 (176)

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TABLE 1—C

RITICAL

H

ABITAT

U

NITS FOR

N

ARROW

-H

EADED

G

ARTERSNAKE

—Continued

[Area estimates reflect all land within critical habitat unit boundaries]

Unit Subunit

Land ownership by type acres

(hectares) Size of unit

Federal State Tribal Private

Unit Total ............... ....................................... 1,780 (720) ........................ ........................ ........................ 1,780 (720)

6. Canyon Creek ........... ....................................... 204 (82) ........................ ........................ ........................ 204 (82)

Unit Total ............... ....................................... 204 (82) ........................ ........................ ........................ 204 (82)

7. Tonto Creek

Subbasin. Tonto Creek .................. 1,673 (677) ........................ ........................ 91 (37) 1,764 (714)

Houston Creek ............. 30 (12) ........................ ........................ 1 (0.4) 31 (12)

Haigler Creek ............... 473 (191) ........................ ........................ 26 (10) 499 (202)

Unit Total ............... ....................................... 2,176 (881) ........................ ........................ 117 (47) 2,293 (928)

8. Verde River Subbasin Verde River .................. 1,439 (583) ........................ ........................ 180 (73) 1,619 (655)

Oak Creek .................... 634 (256) 109 (44) ........................ 422 (171) 1,165 (471)

West Fork Oak Creek .. 372 (151) ........................ ........................ ........................ 372 (151)

Unit Total ............... 2,446 (990) ................... 109 (44) ........................ 602 (244) 3,156 (1,277) ..............................

Total ....................... ....................................... 17,614 (7,128) 665 (269) ........................ 5,505 (2,228) 23,785 (9,625)

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

narrow-headed gartersnake, below.

Unit 1: Upper Gila River Subbasin Unit

Unit 1 consists of 7,005 ac (2,835 ha)

in eight subunits along 104 stream mi

(167 km): 46 stream mi (74 km) of the

Gila River, 12 stream mi (20 km) of West

Fork Gila River, 7 stream mi (11 km) of

Little Creek, 14 stream mi (23 km) of

Middle Fork Gila River, 6 stream mi (10

km) of Gilita Creek, 2 stream mi (3 km)

of Iron Creek, 10 stream mi (16 km) of

Black Canyon, and 6 stream mi (9 km)

of Diamond Creek. The Upper Gila River

Subbasin Unit is located in

southwestern New Mexico, east of the

town of Glenwood, and west and north

of Silver City in Grant and Hidalgo

Counties. The Upper Gila River

Subbasin Unit occurs on lands managed

by the USFS on Gila National Forest;

Bureau of Land Management (BLM)

within Lower Box and Middle Gila Box

Areas of Critical Environmental Concern

and Gila Lower Box Wilderness Study

Area; National Park Service (NPS) on

Gila Cliff Dwellings National

Monument; New Mexico Department of

Game and Fish on Bill Evans Fishing

Area, Heart Bar Wildlife Area, Redrock

State Wildlife Experimental Area, and

Gila Bird Area; State Trust lands; and

private entities.

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, with PBFs 3 and 4 may

be in degraded condition. The Gila

River, West Fork Gila River, Little

Creek, Iron Creek, Black Canyon, and

Diamond Creek subunits have PBFs 1, 2,

3, and 5, but PBF 4 is in degraded

condition. The Middle Fork Gila River

Subunit has PBF 1, 2, 4, and 5 with PBF

3 in degraded condition. Gilita Creek

Subunit has all PBFs.

This unit requires special

management to address the threats;

some reaches of the Gila River have

been adversely affected by

channelization and water diversions.

Populations of bullfrogs and nonnative,

spiny-rayed fish dominate the aquatic

community in some reaches of the West

Fork and Middle Fork Gila River. Fish

barriers on many streams are in place to

limit upstream movement of some

nonnative fish into areas that are

managed for native fish. Crayfish

densities are currently high in Diamond

Creek. Wildfires have burned at both

moderate and high severity within the

unit and resulted in significant flooding

with excessive ash and sediment loads

in Middle Fork Gila River. These

sediment and ash-laden floods can

temporarily reduce populations of both

nonnative aquatic predatory species and

native prey species for narrow-headed

gartersnakes in affected streams. 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: San Francisco River Subbasin

Unit

Unit 2 consists of 5,895 ac (2,386 ha)

in six subunits along 129 stream mi (207

km): 71 stream mi (115 km) of San

Francisco River, 9 stream mi (14 km) of

Whitewater Creek, 8 stream mi (13 km)

of Saliz Creek, 20 stream mi (33 km) of

Tularosa River, 13 stream mi (20 km) of

Negrito Creek, and 8 stream mi (13 km)

of South Fork Negrito Creek. The San

Francisco River Subbasin Unit is

generally located in southwestern New

Mexico near the towns of Glenwood and

Reserve, and east of Luna, in Catron

County. The San Francisco River

Subbasin Unit consists of lands

managed primarily by the U.S. Forest

Service on Gila National Forest and

private landowners.

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, and 5, but PBFs 3 and 4 may

be in degraded condition. San Francisco

River Subunit has PBFs 1, 2, and 5, but

PBFs 3 and 4 are in degraded condition.

Whitewater Creek Subunit has PBFs 1,

2, 4, and 5, but PBF 3 is in degraded

condition. Tularosa River, Saliz Creek,

and Negrito Creek subunits have PBFs 1,

2, 3, and 5, but PBF 4 is in degraded

condition. South Fork Negrito Creek

Subunit has adequate PBFs. Water

diversions have dewatered sections of

the San Francisco River Subunit in the

upper Alma Valley and at Pleasanton,

New Mexico. The San Francisco River

Subunit also has populations of

bullfrogs, crayfish, and nonnative,

spiny-rayed fish at various densities

along its course. Wildfires have burned

at both moderate and high severity

within the unit and likely resulted in

significant flooding with excessive ash

and sediment loads. These sediment

and ash-laden floods can temporarily

reduce populations of both nonnative

aquatic predatory species and native

prey species for narrow-headed

gartersnakes in affected streams. The

PBFs in this unit may require special

management due to competition with,

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and predation by, nonnative species that

are present in this unit; water

diversions; potential for high-intensity

wildfires; and human recreation and

development of areas adjacent to critical

habitat.

Unit 3: Blue River Subbasin Unit

Unit 3 consists of a total of 3,368 ac

(1,363 ha) in three subunits along 64

stream mi (102 km): 52 stream mi (84

km) of Blue River, 7 stream mi (12 km)

of Campbell Blue Creek, and 4 stream

mi (7 km) of Dry Blue Creek. The Blue

River Subbasin Unit is generally located

near the east-central border of Arizona

northeast of Clifton in Greenlee County,

and just into west-central New Mexico

in Catron County. Blue River Subbasin

Unit consists of lands managed

primarily by the U.S. Forest Service on

Gila and Apache-Sitgreaves National

Forests, and private landowners.

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, and 5, but PBFs 3 and 4 may

be in degraded condition. The Blue

River and Dry Blue Creek subunits have

PBFs 1, 2, 3, and 5, but PFB 4 is in

degraded condition. Campbell Blue

Creek Subunit has PBFS 1, 2, 4, and 5,

but PBF 3 may be in degraded

condition. The fish community of the

Blue River is highly diverse and largely

native, but nonnative fish are present.

Native fish restoration is actively

occurring in the Blue River, including

construction of a fish barrier,

mechanical removal of nonnative fish,

and repatriation and monitoring of

federally listed warm-water fishes

(Robinson and Crowder 2015, p. 24;

Robinson and Love-Chezem 2015,

entire). Native fish species persist in

Campbell Blue Creek and Dry Blue

Creek (Riley and Clarkson 2005, p. 10;

Humphrey et al. 2015, Table 2). Crayfish

and brown trout are present in Campbell

Blue Creek (Humphrey et al. 2015,

Table 2; Bergamini et al. 2016a, p. 1;

Nowak et al. 2017, Table 3; Pittenger

2017, Table 3). Wildfires have burned at

both moderate and high severity within

the unit and likely resulted in

significant flooding with excessive ash

and sediment loads. These sediment

and ash-laden floods can temporarily

reduce populations of both nonnative

aquatic predatory species and native

prey species for narrow-headed

gartersnakes in affected streams. The

PBFs in this unit may require special

management to prevent reinvasion of

nonnative species and continue to

reestablish native prey species.

Unit 4: Eagle Creek Unit

Unit 4 consists of a total of 84 ac (34

ha) along 2 stream mi (4 km) of Eagle

Creek. The Eagle Creek Unit is generally

located in eastern Arizona near Morenci

and includes portions of Greenlee

County. The majority of lands within

this unit are managed by the U.S. Forest

Service on the Gila National Forest.

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, 4, and 5, but PBF 4 is in

degraded condition. Narrow-headed

gartersnakes have been found in Eagle

Creek at its confluence with Sheep

Wash in 2013 (Ehlo et al. 2013, p. 3;

Holycross et al. 2020, p. 717). The PBFs

in this unit may require special

management to eliminate or reduce

crayfish and nonnative, spiny-rayed

fish, as well as maintain adequate base

flow in Eagle Creek.

We have excluded 236 ac (96 ha) of

lands owned by the San Carlos Apache

Tribe in the Eagle Creek Unit (see

Consideration of Impacts under Section

4(b)(2) of the Act, below).

Unit 5: Black River Subbasin Unit

Unit 5 consists of a total of 1,780 ac

(720 ha) in six subunits along 45 stream

mi (72 km): 19 stream mi (30 km) of

Black River, 5 stream mi (7 km) of Bear

Wallow Creek, 2 stream mi (3 km) of

North Fork Bear Wallow Creek, 3 stream

mi (6 km) of Reservation Creek, 4 stream

mi (6 km) of Fish Creek, and 12 stream

mi (19 km) of East Fork Black River. The

Black River Subbasin Unit is generally

located along the Mogollon Rim in east-

central Arizona, east of Maverick and

west of Hannigan Meadow, and

includes portions of Apache and

Greenlee Counties. All lands within this

unit are managed by the U.S. Forest

Service on Apache-Sitgreaves National

Forest.

Unit 5 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. Crayfish, bullfrogs,

and nonnative, spiny-rayed fish are

present in some of this unit, and

crayfish persist at high densities in the

Black River (Lopez 2014d, p. 4; Nowak

and Drost 2015, p. 5; Nowak et al. 2017,

p. 8). Water in the Black River Subbasin

is diverted for use at the Morenci Mine,

which may affect base flow. Wildfires

have burned at both moderate and high

severity within the unit and have likely

resulted in significant flooding with

excessive ash and sediment loads

(Lopez 2014d, p. 5). These sediment and

ash-laden floods can temporarily reduce

populations of both nonnative aquatic

predatory species and native prey

species for narrow-headed gartersnakes

in affected streams. 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; potential for

high-intensity wildfires; and human

development of areas adjacent to critical

habitat.

We have excluded 195 ac (79 ha) of

lands owned by the White Mountain

Apache and San Carlos Apache Tribes

along the Black River, Bear Wallow

Creek, and Reservation Creek of the

Black River Subbasin Unit (see

Consideration of Impacts under Section

4(b)(2) of the Act, below).

Unit 6: Canyon Creek Unit

Unit 6 consists of 204 ac (82 ha) along

5 stream mi (8 km) of Canyon Creek.

The Canyon Creek Unit is generally

located along the Mogollon Rim in east-

central Arizona, and falls within Gila

County. The Tonto National Forest

manages all lands within 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

all PBFs. The fish community is

primarily native and includes specked

dace (Rhinichthys osculus), desert

sucker (Catostomus clarkii), and brown

trout (Burger 2015a, p. 4). The PBFs in

this unit may require special

management due to potential invasion

by nonnative aquatic predatory species

as well as the potential for high-

intensity wildfires.

We have excluded 77 ac (31 ha) of

lands owned by the White Mountain

Apache Tribe in the Canyon Creek Unit

(see Consideration of Impacts under

Section 4(b)(2) of the Act, below).

Unit 7: Tonto Creek Subbasin Unit

Unit 7 consists of a total of 2,293 ac

(928 ha) in three subunits along 41

stream mi (66 km): 28 stream mi (46 km)

of Tonto Creek, 0.7 stream mi (1.2 km)

of Houston Creek, and 12 stream mi (19

km) of Haigler Creek. The Tonto Creek

Subbasin Unit is generally located

southeast of Payson, Arizona, and

northeast of the Phoenix metropolitan

area, in Gila County. Land ownership or

land management within this unit

consists of lands managed by the U.S.

Forest Service on Tonto National Forest

in the Hellsgate Wilderness and

privately owned lands.

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, and 5, but PBF 4 is in

degraded condition. The PBFs in this

unit may require special management

due to competition with, and predation

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by, nonnative species that are present in

this unit; water diversions; flood-control

projects; potential for high-intensity

wildfires; and development of areas

adjacent to or within critical habitat.

Unit 8: Verde River Subbasin Unit

Unit 8 consists of 3,156 ac (1,277 ha)

in three subunits along 58 stream mi (93

km): 27 stream mi (43 km) of Verde

River, 24 stream mi (39 km) of Oak

Creek, and 7 stream mi (11 km) of West

Fork Oak Creek. The Verde River

Subbasin Unit is generally located near

Perkinsville and Sedona, Arizona, west

of Paulden, Arizona, in Coconino and

Yavapai Counties. Verde River Subbasin

Unit occurs on lands managed by the

U.S. Forest Service on Prescott and

Coconino National Forests, Arizona

State Parks at Redrock State Park, and

private entities.

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, 3, and 5, but PBF 4 is in

degraded condition. The PBFs in this

unit may require special management

due to competition with, and predation

by, nonnative species that are present;

water diversions; groundwater pumping

potentially resulting in drying of

habitat; potential for high-intensity

wildfires; and human recreation and

human development of areas adjacent to

critical habitat.

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.

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 U.S. Army Corps of Engineers

(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.

Compliance with the requirements of

section 7(a)(2) is documented through

our issuance of:

(1) A concurrence letter for Federal

actions that may affect, but are not

likely to adversely affect, listed species

or critical habitat; or

(2) A biological opinion for Federal

actions that may affect, and are likely to

adversely affect, listed species or critical

habitat.

When we issue a biological opinion

concluding that a project is likely to

jeopardize the continued existence of a

listed species and/or destroy or

adversely modify critical habitat, we

provide reasonable and prudent

alternatives to the project, if any are

identifiable, that would avoid the

likelihood of jeopardy and/or

destruction or adverse modification of

critical habitat. We define ‘‘reasonable

and prudent alternatives’’ (at 50 CFR

402.02) as alternative actions identified

during consultation that:

(1) Can be implemented in a manner

consistent with the intended purpose of

the action,

(2) Can be implemented consistent

with the scope of the Federal agency’s

legal authority and jurisdiction,

(3) Are economically and

technologically feasible, and

(4) Would, in the Service Director’s

opinion, avoid the likelihood of

jeopardizing the continued existence of

the listed species and/or avoid the

likelihood of destroying or adversely

modifying critical habitat.

Reasonable and prudent alternatives

can vary from slight project

modifications to extensive redesign or

relocation of the project. Costs

associated with implementing a

reasonable and prudent alternative are

similarly variable.

Regulations at 50 CFR 402.16 set forth

requirements for Federal agencies to

reinitiate formal consultation on

previously reviewed actions. These

requirements apply when the Federal

agency has retained discretionary

involvement or control over the action

(or the agency’s discretionary

involvement or control is authorized by

law) and, subsequent to the previous

consultation: (1) If the amount or extent

of taking specified in the incidental take

statement is exceeded; (2) if new

information reveals effects of the action

that may affect listed species or critical

habitat in a manner or to an extent not

previously considered; (3) if the

identified action is subsequently

modified in a manner that causes an

effect to the listed species or critical

habitat that was not considered in the

biological opinion; or (4) if a new

species is listed or critical habitat

designated that may be affected by the

identified action.

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

implementation of the proposed Federal

action directly or indirectly alters the

designated critical habitat in a way that

appreciably diminishes the value of the

critical habitat as a whole for the

conservation of the listed species. As

discussed above, the role of critical

habitat is to support physical or

biological features essential to the

conservation of a listed species and

provide for the conservation of the

species.

Section 4(b)(8) of the Act requires us

to briefly evaluate and describe, in any

proposed or final regulation that

designates critical habitat, activities

involving a Federal action that may

violate 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 narrow-

headed gartersnake. Some of these

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 narrow-headed gartersnake, or

the gartersnake itself, are appreciably

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diminished or threatened with

extirpation. Such activities could

include, but are not limited to: Water

diversions; channelization; construction

of any barriers or impediments within

the active river channel; removal of

flows in excess of those allotted under

a given water right; construction of

permanent or temporary diversion

structures; groundwater pumping

within aquifers associated with the

river; or dewatering of isolated within-

channel pools or stock tanks. These

activities could result in the reduction

of the distribution or abundance of

important gartersnake prey species, as

well as reduce the distribution and

amount of suitable physical habitat on

a regional landscape for the gartersnake

itself.

(2) Actions that would significantly

increase sediment deposition or

scouring within the stream channel or

pond that is habitat for the narrow-

headed gartersnake, or one or more of

their prey species within the range of

the narrow-headed 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 (i.e., native fish) 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, cliff faces, rocks such

as river cobble, downed trees or logs,

debris jams, small mammal burrows, or

leaf litter. Such activities could include,

but are not limited to: Construction

projects; flood control projects;

vegetation management projects; or any

project that requires a 404 permit from

the U.S. Army Corps of Engineers.

These activities could result in a

reduction of the amount or distribution

of these key habitat features that are

important for gartersnake

thermoregulation, shelter, protection

from predators, and foraging

opportunities.

(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 the narrow-

headed gartersnake or its prey base, or

introduce pathogens. Possible actions

could include, but are not limited to:

Introducing or stocking nonnative,

spiny-rayed fishes, bullfrogs, crayfish,

or other predators of the prey base of

narrow-headed gartersnakes; creating or

sustaining a sport fishery that

encourages use of nonnative live fish or

crayfish 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

narrow-headed gartersnake habitat may

occur; and moving water, mud, wet

equipment, or vehicles from one aquatic

site to another, through which

inadvertent transport of pathogens may

occur. These activities directly or

indirectly cause unnatural competition

with and predation from nonnative

aquatic predators on the narrow-headed

gartersnake, leading to reduced

recruitment within gartersnake

populations and diminishment or

extirpation of their prey base.

(7) Actions that would deliberately

remove, diminish, or significantly alter

the native or nonnative, soft-rayed fish

component of the narrow-headed

gartersnake prey base within occupied

habitat. In general, these actions

typically occur in association with

fisheries management, such as the

application of piscicides in conjunction

with fish barrier construction.

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 and

Exclusions 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 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. In making the determination to

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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 concerning excluding areas

of critical habitat under section 4(b)(2)

of the Act. 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.

Under section 4(b)(2) of the Act, we

may exclude an area from designated

critical habitat based on economic

impacts, impacts on national security,

or any other relevant impacts. In

considering whether to exclude a

particular area from the designation, we

identify the benefits of including the

area in the designation, identify the

benefits of excluding the area from the

designation, and evaluate whether the

benefits of exclusion outweigh the

benefits of inclusion. If the analysis

indicates that the benefits of exclusion

outweigh the benefits of inclusion, the

Secretary may exercise discretion to

exclude the area only if such exclusion

would not result in the extinction of the

species. We describe below the process

that we undertook for taking into

consideration each category of impacts

and our analyses of the relevant

impacts.

As discussed below, based on the

information provided by entities seeking

exclusion, as well as any additional

public comments received, we

evaluated whether certain lands in the

proposed critical habitat were

appropriate for exclusion from this final

designation pursuant to section 4(b)(2)

of the Act. The Act affords a great

degree of discretion to the Service 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

Secretary ‘‘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 narrow-

headed 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. The

DEA was updated in March 2021 to

reflect changes made to critical habitat

units from the revised proposed rule;

however, the total incremental costs are

not expected to change (IEc 2021,

entire). Additional information relevant

to the probable incremental economic

impacts of the critical habitat

designation for the narrow-headed

gartersnake is summarized below and

available in the screening analysis for

the narrow-headed gartersnake (IEc

2021, entire), available at http://

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 narrow-

headed 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 narrow-

headed gartersnake would also likely

adversely affect the essential PBFs of

critical habitat. The IEM outlines our

rationale concerning this limited

distinction between baseline

conservation efforts and incremental

impacts of the designation of critical

habitat for this species. This evaluation

of the incremental effects has been used

as the basis to evaluate the probable

incremental economic impacts of this

designation of critical habitat.

The critical habitat designation for the

narrow-headed gartersnake totals 23,784

ac (9,625 ha) comprising eight units.

Land ownership within critical habitat

for the narrow-headed gartersnake in

acres is broken down as follows: Federal

(74 percent), State (Arizona and New

Mexico) (3 percent), and private (23

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 narrow-headed

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 2021,

entire). This is due to all units being

occupied by the narrow-headed

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 2021, 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

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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 (see

Executive Order (E.O.) 12866 Regulatory

Planning and Review).

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

narrow-headed gartersnake based on

economic impacts.

Consideration of 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), then national-security or

homeland-security concerns are not a

factor in the process of determining

what areas meet the definition of

‘‘critical habitat.’’ However, the Service

must still consider impacts on national

security, including homeland security,

on those lands or areas not covered by

section 4(a)(3)(B)(i), because section

4(b)(2) requires the Service to consider

those impacts whenever it designates

critical habitat. Accordingly, if DoD,

Department of Homeland Security

(DHS), or another Federal agency has

requested exclusion based on an

assertion of national-security or

homeland-security concerns, or we have

otherwise identified national-security or

homeland-security impacts from

designating particular areas as critical

habitat, we generally have reason to

consider excluding those areas.

However, we cannot automatically

exclude requested areas. When DoD,

DHS, or another Federal agency requests

exclusion from critical habitat on the

basis of national-security or homeland-

security impacts, it must provide a

reasonably specific justification of an

incremental impact on national security

that would result from the designation

of that specific area as critical habitat.

That justification could include

demonstration of probable impacts,

such as impacts to ongoing border-

security patrols and surveillance

activities, or a delay in training or

facility construction, as a result of

compliance with section 7(a)(2) of the

Act. If the agency requesting the

exclusion does not provide us with a

reasonably specific justification, we will

contact the agency to recommend that it

provide a specific justification or

clarification of its concerns relative to

the probable incremental impact that

could result from the designation. If we

conduct an exclusion analysis because

the agency provides a reasonably

specific justification or because we

decide to exercise the discretion to

conduct an exclusion analysis, 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.

Exclusions Based on Impacts on

National Security and Homeland

Security

We have determined that the lands

within the designation of critical habitat

for the narrow-headed gartersnake are

not owned or managed by DoD or DHS.

We did not receive any requests for

exclusion based on impacts to national

security or homeland security.

Therefore, we anticipate no impact on

national security or homeland security,

and we are not exercising our discretion

to exclude any lands based on impacts

to national security or homeland

security.

Consideration of Other Relevant

Impacts

Under section 4(b)(2) of the Act, we

consider any other relevant impacts, in

addition to economic impacts and

impacts on national security discussed

above. Other relevant impacts may

include, but are not limited to, impacts

to Tribes, States, local governments,

public health and safety, community

interests, the environment (such as

increased risk of wildfire or pest and

invasive species management), Federal

lands, and conservation plans,

agreements, or partnerships. To identify

other relevant impacts that may affect

the exclusion analysis, we consider 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 may

be impaired by designation of, or

exclusion from, critical habitat. In

addition, we look at whether Tribal

conservation plans or partnerships,

Tribal resources, or government-to-

government relationships of the United

States with Tribal entities may be

affected by the designation. We also

consider any State, local, public-health,

community-interest, environmental, or

social impacts that might occur because

of the designation.

When analyzing other relevant

impacts of including a particular area in

a designation of critical habitat, we

weigh those impacts relative to the

conservation value of the particular

area. To determine the conservation

value of designating a particular area,

we consider a number of factors,

including, but not limited to, the

additional regulatory benefits that the

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.

In the case of the narrow-headed

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. Continued implementation of

an ongoing management plan that

provides conservation equal to or more

than the protections that result from a

critical habitat designation would

reduce those benefits of including that

specific area in the critical habitat

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 her

discretion to exclude the lands from the

final designation, unless exclusion

would result in extinction.

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In the paragraphs below, we provide

a detailed balancing analysis of the

areas we evaluated for exclusion from

critical habitat 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, sometimes through the

permitting process under Section 10 of

the Act.

When we undertake a discretionary

section 4(b)(2) analysis, 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 physical

or biological features (if present) for the

species.

(ii) Whether there is a reasonable

expectation that the conservation

management strategies and actions

contained in a management plan or

agreement will be implemented.

(iii) The demonstrated

implementation and success of the

chosen conservation measures.

(iv) The degree to which the record of

the plan supports a conclusion that a

critical habitat designation would

impair the realization of benefits

expected from the plan, agreement, or

partnership.

(v) The extent of public participation

in the development of the conservation

plan.

(vi) The degree to which there has

been agency review and required

determinations (e.g., State regulatory

requirements), as necessary and

appropriate.

(vii) Whether NEPA compliance was

required.

(viii) Whether the plan or agreement

contains a monitoring program and

adaptive management to ensure that the

conservation measures are effective and

can be modified in the future in

response to new information.

Non-Permitted Conservation Plans,

Agreements, or Partnerships

I. Gila River Subunit Within the Upper

Gila River Subbasin Unit—Freeport-

McMoRan Management Plan

Critical habitat for gartersnakes was

identified for the Gila River (563 ac (228

ha)) on Freeport-McMoRan privately

owned lands where the narrow-headed

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 the 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. 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 reviewed

the 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 narrow-

headed gartersnake. In the past, FMC

has funded fish surveys within the U-

Bar Ranch along the Gila River, as well

as Mangas and Bear Creeks. The FMC

management plan established 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

cubic feet per second (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 NMDGF (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 to providing

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

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monitoring for covered species (the

narrow-headed 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 narrow-headed 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 narrow-headed

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 narrow-headed

gartersnake that reaches a wide

audience, including parties engaged in

conservation 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 important sensitive

habitat that could otherwise be missed

in the review process for these other

environmental laws.

Despite its benefits to the spikedace

and loach minnow, the FMC

management plan does not provide

adequate conservation of the narrow-

headed gartersnake because:

•The management plan does not

commit to any conservation measures

that directly address the leading threat

facing the narrow-headed gartersnake

across its range: The presence of

predatory nonnative aquatic species.

•Within the FMC management plan

area, livestock have sustained access to

the riparian corridor, which negatively

impacts narrow-headed gartersnakes

because gartersnakes require adequate

cover for protection from predators and

to assist with thermoregulation.

•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.

Benefits of Exclusion—FMC

Management Plan

One benefit from excluding FMC-

owned lands as narrow-headed

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 narrow-headed

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 narrow-headed

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 on private

lands managed by FMC outweigh the

benefits of exclusion based on several

factors. Above, we outlined several

instances where management actions set

forth in the plan either do not pertain

directly to the needs of narrow-headed

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.

However, we will continue to work with

FMC in the conservation arena as they

are an important partner of the Service

in conservation planning for several

species in Arizona and New Mexico.

After weighing the benefits of

inclusion as narrow-headed gartersnake

critical habitat against the benefits of

exclusion, we have concluded that the

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benefits of including FMC privately

owned lands on the Gila River (563 ac

(228 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. Whitewater Creek Subunit—

NMDGF’s Glenwood State Fish

Hatchery Management

Critical habitat for the narrow-headed

gartersnake was identified for

Whitewater Creek that includes 2.9 ac

(1.2 ha) of lands that are part of the

Glenwood State Fish Hatchery owned

by NMDGF. NMDGF established the

Glenwood State Fish Hatchery adjacent

to Whitewater Creek in 1938. The

hatchery currently raises female sterile

rainbow trout (Oncorhynchus mykiss)

and a renovation to the facility to

propagate Gila trout (O. gilae) is

planned. The portion of Whitewater

Creek that flows through the hatchery

property is considered dispersal habitat

for narrow-headed gartersnakes moving

between the Catwalk Recreation Area

upstream of the hatchery to the San

Francisco River.

We received a comment from NMDGF

requesting that this area within the

Glenwood State Fish Hatchery be

excluded from the final designation of

critical habitat. NMDGF’s rationale for

requesting exclusion was that there are

no records of the species within the

hatchery boundary and Whitewater

Creek is not perennial at the hatchery.

NMDGF further explains that the

Service’s Memorandum for the Intra-

Service Section 7 Endangered Species

Act Consultation for the Proposed

Operation and Maintenance of Hatchery

Facilities NM F–66 Project concurred

with a ‘‘no effect’’ determination for the

narrow-headed gartersnake because the

snake is not currently present.

In the revised proposed critical

habitat rule (85 FR 23608; April 28,

2020), we reviewed narrow-headed

gartersnake occupancy to determine that

a stream or stream reach was occupied

at the time of listing for narrow-headed

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

between 1998 and 2019 (see Occupancy

Records, 85 FR 23608, p. 23617–23619)

(see Criteria Used To Identify Critical

Habitat). Although narrow-headed

gartersnakes have not been detected at

the hatchery, the segment of Whitewater

Creek included in the critical habitat

designation for the narrow-headed

gartersnake, including where the creek

flows through the hatchery, meets this

definition.

In the revised proposed critical

habitat rule (85 FR 23608; April 28,

2020) and this rule, we also define

perennial, intermittent, and ephemeral

as related to stream flow included in

PBF 1 for the narrow-headed

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; see also Physical or

Biological Features Essential to the

Conservation of the Species, below).

Although Whitewater Creek is

ephemeral at the Glenwood State Fish

Hatchery, it is perennial upstream of the

hatchery and downstream at its

confluence with the San Francisco

River, so the entire stream segment

meets our definition of critical habitat.

In regard to NMDGF’s assertion that

the hatchery should not be listed as

critical habitat because of the Service’s

previous concurrence with a ‘‘no effect’’

determination under a Section 7 Intra-

Service consultation, a critical habitat

determination is not synonymous with

a determination that an area is occupied

for the purposes of a jeopardy analysis

under Section 10 of the Act. 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, an effect

determination is different than a critical

habitat designation. A critical habitat

determination depends 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. NMDGF does not

have a management plan for the narrow-

headed gartersnake at the hatchery, but

has stated that if a population became

established at the hatchery in the future,

they would implement conservation

actions such as identifying and

protecting hibernacula, foraging sites,

and corridors within the limits of

hatchery operations; maintaining or

improving existing habitat for the

species; and conducting regular

monitoring of the population (NMDGF

2020, p. 1). Regardless of the absence of

narrow-headed gartersnake on a very

small portion of Whitewater Creek in

the hatchery boundary, as discussed

above, Whitewater Creek, including the

hatchery property, meets the Service’s

definition of critical habitat. There are

no current management actions set forth

that pertain directly to the needs of

narrow-headed gartersnake critical

habitat, and without a plan we lack the

necessary assurances that beneficial

actions will occur. We are committed to

working with the NMDGF to further

narrow-headed gartersnake

conservation, and we expect the

continuation of our conservation

partnership help foster the maintenance

and development of narrow-headed

gartersnake habitat in the vicinity of the

Glenwood State Fish Hatchery.

Under section 4(b)(2) of the Act, we

can 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. However, there are

no current management actions set forth

that pertain directly to the needs of

narrow-headed gartersnake critical

habitat.

With respect to NMDGF’s request to

exclude the Glenwood State Fish

Hatchery along Whitewater Creek, we

are not excluding the area from this

final rule for the reasons mentioned

above. NMDGF has demonstrated a

willingness to partner with the Service

in conservation planning for several

species in New Mexico, including

recovery actions for listed fish species

that occur in the Gila River subbasin.

Our collaborative relationship with

NMDGF 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,

and we will continue to collaborate on

conservation efforts now and into the

future.

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

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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 based

on permitted conservation plans such as

CCAAs, SHAs, and HCPs, we consider

the following three factors:

(i) Whether the permittee is properly

implementing the conservation plan or

agreement;

(ii) Whether the species for which

critical habitat is being designated is a

covered species in the conservation plan

or agreement; and

(iii) Whether the conservation plan or

agreement specifically addresses the

habitat of the species for which critical

habitat is being designated and meets

the conservation needs of the species in

the planning area.

We are not excluding any areas under

private or other non-Federal

conservation plans related to permits

under section 10 of the Act.

Tribal Lands

Several Executive Orders, Secretarial

Orders, and policies concern working

with Tribes. These guidance documents

generally confirm our trust

responsibilities to Tribes, recognize that

Tribes have sovereign authority to

control Tribal lands, emphasize the

importance of developing partnerships

with Tribal governments, and direct the

Service to consult with Tribes on a

government-to-government basis. 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, the Appendix to S.O.

3206 explicitly recognizes the right of

Tribes to participate fully in any listing

process, including designation of

critical habitat. S.O. 3206 also states that

critical habitat shall not be designated

on Indian lands unless such areas are

determined essential to conserve a listed

species. In designating critical habitat,

the Service and NMFS 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 (see

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 Regarding Implementation of

Section 4(b)(2) of the Endangered

Species Act (81 FR 7226; February 11,

2016) 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.’’

I. Eagle Creek Unit, Black River Subunit,

and Bear Wallow Creek Subunit—San

Carlos Apache Tribe Fishery

Management Plan

We identified approximately 339 ac

(137 ha) of narrow-headed gartersnake

critical habitat that occurs on San Carlos

Apache Tribe lands within portions of

the Eagle Creek Unit (236 ac (96 ha)),

Black River Subunit (55 ac (22 ha)), and

Bear Wallow Creek Subunit (48 ac (19

ha)).

The San Carlos Apache Tribe manages

a land area over 1.8 million ac (≤728,435

ha) in size, ranging in elevation from

2,400 ft (732 m) to 8,000 ft (2,440 m),

in the east-central region of Arizona. In

2005, the San Carlos Apache Recreation

and Wildlife Department finalized the

San Carlos Apache Tribe Fishery

Management Plan (SCAT FMP; San

Carlos Apache Tribe 2005, entire),

which prescribes fisheries management

objectives across their reservation. The

SCAT FMP addresses both management

of nonnative sportfish (a source of

revenue for the Tribe) in reservoirs,

stock tanks, and streams, but also

contains management objectives for

native fish. With respect to nonnative

sportfish, primary management areas

include San Carlos Reservoir, Talkalai

Lake, Seneca Lake, Point of Pines Lake,

and Dry Lake (San Carlos Apache Tribe

2005, p. 4). Stock tanks of larger size are

also managed for sportfish.

Approximately 30 stock tanks on the

reservation support recreational sport

fishing activities. However, erosion and

lack of maintenance of these tanks have

rendered many tanks too shallow to

support this use, and many tanks have

gone dry (San Carlos Apache Tribe

2005, p. 5). Approximately 170 miles

(273 kilometers) of perennial rivers

occur on the reservation where sport

fishing is managed, including the Black,

Salt, Gila, San Carlos, and Blue Rivers,

as well as Eagle, Willow, Bear Wallow,

and Bonita Creeks (San Carlos Apache

Tribe 2005, pp. 5–6). Of these streams

on the reservation, narrow-headed

gartersnakes are known to occur along

the Black River, Eagle Creek, and Bear

Wallow Creek.

In general, natural resource

management on the San Carlos Apache

Reservation is guided by a collection of

resolutions and management plans that

cover such topics as wildland fire,

forest, and range, including specific

management plans for southwestern

willow flycatchers and Mexican spotted

owls (Strix occidentalis lucida) (San

Carlos Apache Tribe 2005, p. 50). The

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SCAT FMP is tiered off the Tribe’s

integrated resource management plan,

which is further tiered to their strategic

plan (San Carlos Apache Tribe 2005, p.

50).

The SCAT FMP ‘‘sets the framework

to conserve, enhance, and restore

nongame, threatened and endangered

native fish and their habitats as part of

the overall natural diversity found on

the Reservation for the enjoyment by

present and future generations’’ (San

Carlos Apache Tribe 2005, p. 63). The

SCAT FMP has six goals relevant to

native fish management, each of which

has identified objectives, actions, and

evaluations (San Carlos Apache Tribe

2005, pp. 63–71).

The first goal is to develop and

implement integrated, watershed-based

approaches to fishery resource

management. The primary objective of

this goal is to identify native fish

management units within each of the six

subbasins on the Reservation and

develop initial management

recommendations for each management

unit (San Carlos Apache Tribe 2005, p.

64). Implementing this objective

requires the identification of needs for

native fish within each management

unit. Evaluation for meeting this

objective includes considering which

native fish occur and where, developing

decision-based criteria, comparing the

value of native fish to that of its relative

sport fish value, and determining future

management recommendations for the

best overall use of each management

unit (San Carlos Apache Tribe 2005, p.

64).

The second goal under the SCAT FMP

is to ‘‘conserve, enhance, and maintain

existing native fish populations and

their habitats as part of the natural

diversity of the Reservation as a home

and abiding place for Tribal members’’

(San Carlos Apache Tribe 2005, p. 65).

Five objectives are identified to

implement this goal: Developing a

survey program, determining the status

of natives fishes within streams on the

Reservation and possible corrective

actions to improve their status where

necessary, prioritizing research needs,

developing an ‘‘Adopt a Stream’’

program to facilitate monitoring and

protection of aquatic and riparian

resources, and developing a contingency

plan to address catastrophic drought

and wildfire events (San Carlos Apache

Tribe 2005, p. 67).

The third goal of the SCAT FMP is to

restore extirpated fishes and degraded

natural habitats when appropriate and

economically feasible. To accomplish

this goal, the Tribe develops and

implements guidelines for

reintroduction, translocation, and

reestablishment of native fishes and

their habitats by completing a needs

assessment for native fishes on the

Reservation (San Carlos Apache Tribe

2005, pp. 67–68).

The fourth goal of the SCAT FMP is

to prevent, minimize, or mitigate

adverse impacts to all native fishes,

particularly threatened or endangered

species, and their habitats when

consistent with the Reservations values

as a home and abiding place for Tribal

members. Five actions are listed to

achieve this goal: Participation in

section 7 consultations; participation in

the Tribal integrated resource

management planning process;

literature reviews pertaining to best

practices and alternative uses; education

and demonstrations to benefit Tribal

Cattle Association members; and the

review and recommendation of land use

practices, policies, and plans to

minimize adverse impacts to native fish

and their habitats (San Carlos Apache

Tribe 2005, pp. 68–69).

The fifth goal of the SCAT FMP

includes education to increase Tribal

awareness of native fish conservation

and values through identification of

Tribal perceptions and attitudes

regarding native fish. A minimum of

once per year, the Tribe plans and

participates in public workshops that

discuss native fish biology,

conservation, and management. In

addition to these topics, at these

workshops the Tribe discusses how to

reduce impacts and improve status of

native fishes (San Carlos Apache Tribe

2005, pp. 69–70).

The final goal of the SCAT FMP

requires the Tribe to pursue funding to

support all previously stated goals and

objectives outlined in the SCAT FMP

(San Carlos Apache Tribe 2005, p. 70).

Benefits of Inclusion—San Carlos

Apache Tribe Fishery 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 costs or

outcomes of the jeopardy analysis and

the adverse modification analysis

represents the regulatory benefit 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 Eagle

Creek, Black River, and Bear Wallow

Creek, 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.

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 narrow-headed

gartersnake. As described above, even

with narrow-headed gartersnakes

occurring on these Tribal lands, no

formal section 7 consultations have yet

to occur. When we review future

projects addressing the narrow-headed

gartersnake pursuant to section 7 of the

Act in Arizona, we will examine

conservation measures associated with

the project for their value in the

conservation of narrow-headed

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. The

Tribe, through their Recreation and

Wildlife Department, surveys all

proposed home and construction

projects, and provides information from

the SCAT FMP for use in negotiating

water exchanges and in determining

mitigation measures for projects that

may impact listed species or their

habitat. Therefore, the Recreation and

Wildlife Department has an opportunity

to provide information regarding the

species and its habitat across the

Reservation. In addition, the Tribe has

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adopted an interdisciplinary team

approach to all natural resources

matters. The team works together to

provide an ecosystem management

approach in developing strategic plans

and management plans. Through this

team, Tribal members can be informed

of steps necessary to conserve native

fish and their habitat as the prey base

for narrow-headed gartersnakes.

Another possible benefit of the

designation of critical habitat is that it

may also affect the implementation of

Federal laws, such as NEPA or 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.

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 narrow-headed

gartersnakes on Tribal lands, and the

Service’s coordination with Tribes on

gartersnake-related issues, it is expected

that there may be some, but limited,

benefits from including these Tribal

lands in a narrow-headed 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—San Carlos

Apache Tribe Fishery Management Plan

The benefits of excluding San Carlos

Apache Tribe lands from designated

critical habitat in portions of Eagle

Creek, Black River, and Bear Wallow

Creek include: (1) Demonstrating our

commitment to defer to the Tribe to

develop and implement conservation

and natural resource management plans

for their lands and resources, which

includes benefits to the narrow-headed

gartersnake and its habitat that might

not otherwise occur; (2) the continuance

and strengthening of our effective

working relationships with the Tribe to

promote conservation of narrow-headed

gartersnakes through that of native fish

and their habitat, as well as other

federally listed species; and (3)

promoting continued meaningful

collaboration and cooperation in

working toward recovering native

aquatic communities, including narrow-

headed gartersnake habitat.

Because the Tribe is the entity that

enforces protective regulations on Tribal

trust reservation land, and because we

have a working relationship with them,

we believe exclusion of these lands will

yield a significant partnership benefit.

The Tribe is coordinating with the

AGFD and the Service on surveys and

captive propagation plans for native

fish, which furthers conservation of

narrow-headed gartersnakes. We

continue to work cooperatively with the

Tribe on efforts to conserve spikedace

and loach minnow on the Reservation,

which benefits other native fish as the

primary prey base for narrow-headed

gartersnakes.

During this rulemaking process, we

have communicated with the San Carlos

Apache Tribe to discuss how they might

be affected by the regulations associated

with listing and designating critical

habitat for the narrow-headed

gartersnake. We have determined that

the San Carlos Apache Nation should be

the governmental entity to manage and

promote narrow-headed gartersnake

conservation on their lands. During our

coordination efforts with the San Carlos

Apache Tribe, we recognized and

endorsed their fundamental right to

provide for Tribal resource management

activities, including those relating to

aquatic habitat that supports narrow-

headed gartersnakes. As outlined above,

the San Carlos Apache Tribe has

developed and implemented a fisheries

management plan specific to needs of

prey and habitat for narrow-headed

gartersnakes. Overall, the commitments

toward management of narrow-headed

gartersnake habitat by the San Carlos

Apache Tribe will likely accomplish

greater conservation than would be

available through a designation of

critical habitat.

The designation of critical habitat

would be viewed as an intrusion and

impact the Tribe’s sovereign ability to

manage natural resources in accordance

with their own policies, customs, and

laws. These impacts include, but are not

limited to: (1) Limiting the San Carlos

Apache Tribe’s ability to protect and

control its own resources on its lands;

(2) undermining the positive and

effective government-to-government

relationship between the Tribe and the

Service—a relationship that serves to

protect federally listed species and their

habitat; and (3) hampering or confusing

the Tribe’s own long-standing

protections for the Eagle Creek, Black

River, and Bear Wallow Creek. 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 narrow-headed gartersnake and

other species. We view this as a

substantial benefit since we have

developed a cooperative working

relationship with the Tribe for the

mutual benefit of the gartersnake and

other endangered and threatened

species.

In addition, we anticipate that future

management plans, including additional

conservation efforts for other listed

species and their habitats, may be

hampered if critical habitat is

designated on Tribal lands already being

managed for sensitive species

conservation. We have determined that

many Tribes 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

narrow-headed 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—San Carlos

Apache Tribe Fishery Management Plan

The benefits of including San Carlos

Apache 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 narrow-

headed gartersnake and its habitat from

implementation of the SCAT FMP.

The Tribe has indicated a

commitment to traditional ecological

knowledge (TEK), which uses an

ecosystem-based approach to land and

species management and preservation.

In addition, they have developed the

Fisheries Management Plan, which

benefits spikedace and loach minnow

specifically and, by extension, all native

fish, by discontinuing nonnative fish

stocking in areas important for their

conservation. Further, the Tribe is

working with both the Service and the

AGFD to these ends.

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The Tribe has focused on known areas

of concern for the species’ management

and has discontinued stocking of

nonnative fishes in some areas,

including the Eagle Creek watershed.

The Fisheries Management Plan

contains goals of conserving and

enhancing native fishes on the

Reservation; restoring native fishes and

their habitats; and preventing,

minimizing, or mitigating impacts to

native fishes, among others. In addition,

the Tribe has indicated that, through

TEK, they practice an ecosystem-based

approach to land- and species-based

management and preservation. We

conclude that the benefits to be gained

through the Fisheries Management Plan,

coordination with the Service and

AGFD, discontinuance of sportfish

stocking, and proactive measures for

native fish all indicate that the Tribe has

committed to conservation measures

that exceed benefits to be gained

through a critical habitat designation.

Collectively, these measures help secure

native fish communities on the

Reservation, which are critical to the

continued survival of the narrow-

headed gartersnake. 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

of the Species—San Carlos Apache

Tribe Fisheries Management Plan

We have determined that exclusion of

San Carlos Apache Tribe lands from the

critical habitat designation will not

result in the extinction of the narrow-

headed 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 narrow-headed 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 San Carlos

Apache Tribe has a long-term record of

conserving species and habitat and is

committed to protecting and managing

narrow-headed 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. For these

reasons, we have determined that our

working relationships with the Tribe

would be better maintained if we

excluded their lands from the

designation of narrow-headed

gartersnake critical habitat. With the

implementation of these conservation

measures, based upon strategies

developed in the SCAT FMP, we have

concluded that the benefits of excluding

the San Carlos Apache Tribe 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 San Carlos Apache Tribe

lands within the Eagle Creek Unit (236

ac (96 ha)), Black River Subunit (55 ac

(22 ha)), and Bear Wallow Creek

Subunit (48 ac (19 ha)).

II. Canyon Creek Unit, and Black River,

Bear Wallow Creek, and Reservation

Creek Subunits—White Mountain

Apache Tribe Native Fishes

Management Plan

We identified approximately 169 ac

(68 ha) of narrow-headed gartersnake

critical habitat that occurs on White

Mountain Apache Tribe lands within

portions of the Black River Subunit (56

ac (23 ha)), Bear Wallow Creek Subunit

(

Subunit (36 ac (15 ha)), and Canyon

Creek Unit (77 ac (31 ha)).

The White Mountain Apache Tribe’s

Fort Apache Indian Reservation

encompasses approximately 1,680,000

acres in east-central Arizona, ranging in

elevation from 11,590 to 2,640 ft (White

Mountain Apache Tribe 2014, p. 1). A

total of 23 artificial reservoirs were

created on the Reservation to provide

recreational opportunities such as

fishing, boating, and camping permits

(White Mountain Apache Tribe 2014, p.

1). The White Mountain Apache Tribe

Native Fishes Management Plan

(WMAT NFMP) identified native fish

species that are historically known from

the Reservation and provides available

information on their current status and

distribution. The WMAT NFMP also

identified significant stressors to native

fish, which include dewatering,

sedimentation, mechanical stream

channel alteration, and interactions

with nonnative aquatic species. The

WMAT NFMP lists guidance- and

direction-related documents,

management plans, ordinances and

codes, and Tribal resolutions that help

address these issues and many others

which could affect natural resources on

the Reservation and are currently in

effect (White Mountain Apache Tribe

2014, pp. 11–15). These guidance

documents include the Tribe’s 2000

Loach Minnow Management Plan and

Resolution #89–149, which designates

streams and riparian zones as Sensitive

Fish and Wildlife areas, requiring that

authorized programs ensure these zones

remain productive for fish and wildlife.

The primary purpose of the WMAT

NFMP is to ‘‘promote the practical and

effective long-term conservation of all

native fish populations and their

habitats found on the Reservation’’

(White Mountain Apache Tribe 2014, p.

19). The WMAT NFMP ‘‘sets the

framework to conserve, enhance, and if

possible, restore non-game, threatened

and endangered native fish and their

habitats as part of the overall natural

diversity found on the Reservation for

the enjoyment of present and future

generations of Apache people’’ (White

Mountain Apache Tribe 2014, p. 19). To

accomplish this, four primary goals are

set forth in the WMAT NFMP.

The first goal of the WMAT NFMP is

to conserve and maintain existing native

fish populations and their habitats as

part of the natural diversity of the

Reservation when consistent with the

Reservation as a homeland for White

Mountain Apache Tribal members

(White Mountain Apache Tribe 2014, p.

20). To accomplish this, via literature

review and expert consultation, the

Tribe developed a protocol for

standardized sampling and data analysis

specific to the inventory, survey,

population modeling, monitoring, and

other management techniques for all

native fishes and their habitats. This

protocol will be used to determine the

current distribution and relative

abundance of all native fishes and their

habitats, with an emphasis on rare or

sensitive species in order to identify

native fish management units within

each of the watersheds on the

Reservation to develop initial

management recommendations for each

(White Mountain Apache Tribe 2014, p.

20). The Tribe has also committed to

updating the Loach Minnow

Management Plan as well as follow the

management strategies in the Apache

Trout Recovery Plan. These actions will

help develop research needs and

implement research in the field. Under

this first goal, the Tribe also intends to

develop an ‘‘Adopt-a-Lake/Stream’’

program, where Tribal members

volunteer to help monitor and protect

aquatic riparian resources (White

Mountain Apache Tribe 2014, p. 23).

The second goal of the WMAT NFMP

is to enhance native fish populations

and degraded natural habitats when

appropriate and economically feasible

by: (1) Developing guidelines for

enhancing native fish populations and

their habitats; (2) investigating available

funding opportunities and requirements

to support all Tribal conservation and

management activities for all native

fishes, their habitats, and other listed

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aquatic and riparian obligate species

and their habitats; (3) developing

proposals to secure funding necessary to

continue conservation and management

activities that will benefit all existing

native fishes, their habitats, and other

listed aquatic and riparian obligate

species and their habitats; and (4)

restoring and enhancing native fish

habitats and populations according to

guidance developed (White Mountain

Apache Tribe 2014, pp. 24–25).

The third goal of the WMAT NFMP is

to prevent, minimize, or mitigate

adverse impacts to all native fishes,

especially threatened or endangered,

and their habitats when consistent with

the purpose of the Reservation as a

permanent homeland for White

Mountain Apache Tribal members by:

(1) Identifying species and habitat types

that are declining or imperiled, or likely

to become imperiled, in the foreseeable

future and the threats causing decline;

(2) identifying possible corrective

actions needed to limit or mitigate

adverse impacts to native fish and their

habitats where appropriate and

economically feasible, including

consideration of threats and mitigation

measures to multiple listed candidate or

proposed aquatic or riparian obligate

species; and (3) collaborating with

others to maintain or enhance native

fish populations and their habitats or

prevent avoidable and mitigate

unavoidable losses (White Mountain

Apache Tribe 2014, pp. 25–27).

The fourth and final goal of the

WMAT NFMP focuses on increasing

Tribal awareness of native fish

conservation and values. The WMAT

NFMP proposes to accomplish this by:

(1) Identifying Tribal perceptions and

attitudes regarding nongame,

threatened, and endangered native

fishes; (2) annually developing,

sponsoring, and participating in

educational workshops and

presentations pertaining to the biology,

conservation, and management of

nongame, threatened, or endangered

native fishes and their habitats; and (3)

informing the Tribe of the status of

nongame, threatened, and endangered

native fishes and threats to their

protection and maintenance, and Tribal

actions to reduce or eliminate such

adverse impacts (White Mountain

Apache Tribe 2014, pp. 28–29).

The White Mountain Apache Tribe

has a process to review and approve all

development activities on the

Reservation. The Tribal Plan and Project

Review Panel, among other things,

investigates impacts to sensitive habitats

and species, and provides for the

implementation of mitigation measures

to avoid adverse impacts to those

resources. To assist, the White

Mountain Apache Tribe has a full-time

Sensitive Species Coordinator and

Technician who coordinates and

participates in protection, research,

management, and administrative

activities involving Federally listed

sensitive species on the Reservation.

The White Mountain Apache Tribe’s

Loach Minnow Management Plan also

provides transitory benefits to narrow-

headed gartersnake conservation. The

goals of the Loach Minnow Management

Plan are to determine and quantify the

full extent of loach minnow distribution

on the Reservation; continue to develop

and strengthen management actions that

effectively address species threats and

that provide adequate protection for,

and sustainability of, existing

Reservation loach minnow populations

and habitats; complete the development

and ongoing maintenance of Tribal data,

information, and mapping for this and

other native fish species; and evaluate

and refine the application of Plan

management practices, over time, in a

manner that promotes the practical and

effective long-term conservation of all

Reservation native fish populations and

assemblages, including those of loach

minnow (White Mountain Apache Tribe

2000).

The Loach Minnow Management Plan

provides an action and strategy outline

with eight steps that provide additional

detail on how they will be carried out.

The eight steps of the management plan

that may affect PBFs of the narrow-

headed gartersnake include:

•Determining the distribution of

loach minnow within Reservation

boundaries;

•Continuing routine surveys and

expanding efforts to include habitat

assessment;

•Continuing to monitor and refine

existing management treatments

involving irrigation uses and activities

to develop adequate mitigation against

related threats;

•Continuing to apply and refine

existing monitoring and mitigation

protocols involving low water and/or

drought conditions to provide

sustainable protection of loach minnow

populations;

•Developing contingency plans with

responses to potential catastrophic

events;

•Evaluating and refining existing

nonnative fish management and

mitigation practices to provide

sustainable protection of loach minnow

populations and habitat;

•Organizing data collection,

handling, storage, and maintenance

among partners; and

•Continuing to monitor and refine

existing Tribal Plan and Project Review

Process, management plans, and

practices to meet loach minnow and

native fish management goals.

Benefits of Inclusion—White Mountain

Apache Tribe Native Fishes

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 costs or

outcomes of the jeopardy analysis and

the adverse modification analysis

represents the regulatory benefit 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.

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 narrow-headed

gartersnake. As described above, even

with narrow-headed gartersnakes

occurring on these Tribal lands, formal

section 7 consultations have yet to

occur. When we review future projects

addressing the narrow-headed

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 narrow-headed

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

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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. The

White Mountain Apache Tribe has

developed management plans for the

loach minnow and native fish in

general, and currently employs a

Sensitive Species Coordinator through

which education of Tribal members can

occur without critical habitat

designation. In addition, Tribal fisheries

biologists participate in review of

development projects and timber sales

and can work to educate project

proponents of the species’ needs.

Another possible benefit of the

designation of critical habitat is that it

may also affect the implementation of

Federal laws, such as NEPA or 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.

Therefore, because of the

development and implementation of a

native fish management plan, ongoing

habitat conservation, the rare initiation

of formal section 7 consultations, the

occurrence of narrow-headed

gartersnakes on Tribal lands, and the

Service’s coordination with Tribes on

gartersnake-related issues, it is expected

that there may be some, but limited,

benefits from including these Tribal

lands in a narrow-headed 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—White Mountain

Apache Tribe Native Fishes

Management Plan

The benefits of excluding White

Mountain Apache Tribe lands from

designated critical habitat in portions of

Black River, Bear Wallow Creek, and

Reservation Creek subunits, and in

Canyon Creek Unit 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 narrow-headed

gartersnake and its habitat that might

not otherwise occur; (2) the continuance

and strengthening of our effective

working relationships with the Tribe to

promote conservation of narrow-headed

gartersnakes through that of native fish

and their habitat, as well as other

federally listed species; and (3)

promoting continued meaningful

collaboration and cooperation in

working toward recovering native

aquatic communities, including narrow-

headed gartersnake habitat.

Taken individually or collectively, the

White Mountain Apache Tribe’s

commitments to the conservation of

riparian and aquatic habitats and the

native fishes that depend on them offers

a strong foundation for future

conservation of the narrow-headed

gartersnake. As we have carefully

detailed in this and previous

rulemakings pertaining to the narrow-

headed gartersnake, the protection,

conservation, and recovery of native fish

communities is of utmost importance to

the continued existence of the narrow-

headed gartersnake because this species

is a predatory specialist which preys

only on fish. Therefore, the conservation

of native fish communities will provide

the suite of protections required to

sustain its prey base and maintain

gartersnake populations on the

Reservation and elsewhere such

protections are afforded.

During this rulemaking process, we

have communicated with the White

Mountain Apache Tribe to discuss how

they might be affected by the regulations

associated with listing and designating

critical habitat for the narrow-headed

gartersnake. We have determined that

the White Mountain Apache Tribe

should be the governmental entity to

manage and promote narrow-headed

gartersnake conservation on their lands.

During our coordination efforts with the

White Mountain Apache Tribe, we

recognized and endorsed their

fundamental right to provide for Tribal

resource management activities,

including those relating to aquatic

habitat that supports narrow-headed

gartersnakes. As outlined above, the

White Mountain Apache Tribe has

developed and implemented a native

fishes management plan specific to

needs of prey and habitat for narrow-

headed gartersnakes. Overall, the

commitments toward management of

narrow-headed gartersnake habitat by

the White Mountain Apache Tribe will

likely accomplish greater conservation

than would be available through a

designation of critical habitat.

The designation of critical habitat

would be viewed as an intrusion and

impact their sovereign abilities to

manage natural resources in accordance

with the Tribe’s own policies, customs,

and laws. These impacts include, but

are not limited to: (1) Limiting the

White Mountain Apache Tribe’s ability

to protect and control its own resources

on its lands; (2) undermining the

positive and effective government-to-

government relationship between the

Tribe and the Service—a relationship

that serves to protect federally listed

species and their habitat; and (3)

hampering or confusing the Tribe’s own

long-standing protections for the Black

River, Reservation Creek, Bear Wallow

Creek, and Canyon Creek. 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

narrow-headed gartersnake and other

species. Our working relationships with

the Tribe would be better maintained if

we excluded their lands from the

designation of narrow-headed

gartersnake critical habitat. We view

this as a substantial benefit since we

have developed a cooperative working

relationship with the White Mountain

Apache Tribe for the mutual benefit of

the narrow-headed gartersnake and

other endangered and threatened

species.

Benefits of Exclusion Outweigh the

Benefits of Inclusion—White Mountain

Apache Tribe Native Fishes

Management Plan

The benefits of including White

Mountain Apache 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 narrow-

headed gartersnake and its habitat from

implementation of the White Mountain

Apache Tribe Native Fishes

Management Plan.

The White Mountain Apache Tribe

clearly explained their sovereign

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authority to promulgate regulations and

management plans to protect and

manage Tribal trust lands, wildlife,

forests, and other natural resources, and

cited numerous authorities that confirm

their authority over wildlife and other

natural resources existing within their

ancestral lands. In addition, they have

shown a commitment to other federally

listed species, such as the loach

minnow and Mexican spotted owl.

Based on our working relationship

with the White Mountain Apache Tribe,

their demonstration of conservation

through past efforts, and the protective

provisions of the WMAT NFMP and

Loach Minnow Management Plan, 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

of the Species—White Mountain Apache

Tribe Native Fishes Management Plan

We have determined that exclusion of

White Mountain Apache Tribe lands

from the critical habitat designation will

not result in the extinction of the

narrow-headed 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 narrow-headed 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 White Mountain

Apache Tribe has a long-term record of

conserving species and habitat and is

committed to protecting and managing

narrow-headed 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 WMAT NFMP and

Loach Minnow Management Plan, we

have determined that the benefits of

excluding the White Mountain Apache

Tribe 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

White Mountain Apache Tribe lands

within the Black River Subunit (56 ac

(23 ha)), Bear Wallow Creek Subunit

(

Subunit (36 ac (15 ha)), and Canyon

Creek Unit (77 ac (31 ha)).

Summary of Exclusions Under 4(b)(2) of

the Act

Table 2 below presents areas of lands

that meet the definition of critical

habitat but for which we are excluding

from this final critical habitat

designation for the narrow-headed

gartersnake.

T

ABLE

2—A

REAS

E

XCLUDED

F

ROM

C

RITICAL

H

ABITAT

D

ESIGNATION BY

C

RITICAL

H

ABITAT

U

NIT FOR THE

N

ARROW

-

H

EADED

G

ARTERSNAKE

Unit subunit Landowner, property name Proposed critical habitat

(ac (ha)) Area excluded

(ac (ha)) Final critical habitat

(ac (ha))

Eagle Creek Unit

Eagle Creek ................... San Carlos Apache Tribe ................. 336 (136) ...................... 236 (96) ........................ 100 (41)

Unit total being excluded ........................................................... ....................................... 236 (96) ........................

Black River Subbasin Unit

Black River ..................... San Carlos Apache Tribe ................. 763 (309) ...................... 55 (22) .......................... 652 (264)

White Mountain Apache Tribe .......... ....................................... 56 (23).

Bear Wallow Creek ........ San Carlos Apache Tribe ................. 174 (71) ........................ 48 (19) .......................... 126 (51)

White Mountain Apache Tribe .......... ....................................... <.01 class="_ _c"> ....................

Reservation Creek ......... White Mountain Apache Tribe .......... 132 (54) ........................ 36 (15) .......................... 96 (39)

Unit total being excluded ........................................................... ....................................... 195 (79) ........................

Canyon Creek Unit

Canyon Creek ................ White Mountain Apache Tribe .......... 232 (94) ........................ 77 (31) .......................... 155 (63)

Unit total being excluded ........................................................... ....................................... 77 (31) ..........................

Grand Total ............. ........................................................... ....................................... 508 (206).

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

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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 light of recent court

decisions, Federal agencies are required

to evaluate only 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 final

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 participation in a voluntary

Federal program,’’ unless the regulation

‘‘relates to a then-existing Federal

program under which $500,000,000 or

more is provided annually to State,

local, and Tribal governments under

entitlement authority,’’ if the provision

would ‘‘increase the stringency of

conditions of assistance’’ or ‘‘place caps

upon, or otherwise decrease, the Federal

Government’s responsibility to provide

funding,’’ and the State, local, or Tribal

governments ‘‘lack authority’’ to adjust

accordingly. At the time of enactment,

these entitlement programs were:

Medicaid; Aid to Families with

Dependent Children work programs;

Child Nutrition; Food Stamps; Social

Services Block Grants; Vocational

Rehabilitation State Grants; Foster Care,

Adoption Assistance, and Independent

Living; Family Support Welfare

Services; and Child Support

Enforcement. ‘‘Federal private sector

mandate’’ includes a regulation that

‘‘would impose an enforceable duty

upon the private sector, except (i) a

condition of Federal assistance or (ii) a

duty arising from participation in a

voluntary Federal program.’’

The designation of critical habitat

does not impose a legally binding duty

on non-Federal Government entities or

private parties. Under the Act, the only

regulatory effect is that Federal agencies

must ensure that their actions do not

destroy or adversely modify critical

habitat under section 7. While non-

Federal entities that receive Federal

funding, assistance, or permits, or that

otherwise require approval or

authorization from a Federal agency for

an action, may be indirectly impacted

by the designation of critical habitat, the

legally binding duty to avoid

destruction or adverse modification of

critical habitat rests squarely on the

Federal agency. Furthermore, to the

extent that non-Federal entities are

indirectly impacted because they

receive Federal assistance or participate

in a voluntary Federal aid program, the

Unfunded Mandates Reform Act would

not apply, nor would critical habitat

shift the costs of the large entitlement

programs listed above onto State

governments.

(2) We do not believe that this rule

will significantly or uniquely affect

small governments because the lands

being designated for critical habitat are

owned by private landowners, the States

of New Mexico and Arizona, and the

Federal Government (USFS, NPS, BLM,

and Service). In addition, based in part

on an analysis conducted for the

previous proposed designation of

critical habitat and extrapolated to this

designation, we do not expect this rule

to significantly or uniquely affect small

governments. Small governments will

be affected only to the extent that any

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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

narrow-headed gartersnake in a takings

implications assessment. The Act does

not authorize the Service to regulate

private actions on private lands or

confiscate private property as a result of

critical habitat designation. Designation

of critical habitat does not affect land

ownership, or establish any closures, or

restrictions on use of or access to the

designated areas. Furthermore, the

designation of critical habitat does not

affect landowner actions that do not

require Federal funding or permits, nor

does it preclude development of habitat

conservation programs or issuance of

incidental take permits to permit actions

that do require Federal funding or

permits to go forward. However, Federal

agencies are prohibited from carrying

out, funding, or authorizing actions that

would destroy or adversely modify

critical habitat. A takings implications

assessment has been completed and

concludes this designation of critical

habitat for the narrow-headed

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 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 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 physical or biological features

essential to the conservation of the

narrow-headed 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.

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 NEPA 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 narrow-

headed 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 performed the NEPA analysis, and

the draft environmental assessment was

made available for public comment with

publication of the revised proposed

critical habitat designation (85 FR

23608; April 28, 2020). 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. The final environmental

assessment and finding of no significant

impact 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 online at http://

www.regulations.gov, by contacting the

Field Supervisor of the (see

FOR FURTHER

INFORMATION CONTACT

), or on the

Service’s website at https://

www.fws.gov/southwest/es/arizona/.

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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 GRIC, the White

Mountain Apache Tribe, and the San

Carlos Apache Tribe during the

rulemaking process. We will continue to

work on a government-to-government

basis with Tribal entities on

conservation of habitat after the

designation of critical habitat for the

narrow-headed gartersnake.

References Cited

A complete list of references cited in

this rulemaking is available on the

internet at http://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 set forth

below:

PART 17—ENDANGERED AND

THREATENED WILDLIFE AND PLANTS

■1. The authority citation for part 17

continues to read as follows:

Authority: 16 U.S.C. 1361–1407; 1531–

1544; and 4201–4245, unless otherwise

noted.

■2. Amend § 17.11(h), the List of

Endangered and Threatened Wildlife, by

revising the entry for ‘‘Gartersnake,

narrow-headed’’ under REPTILES to

read as follows:

§ 17.11 Endangered and threatened

wildlife.

* * * * *

(h) * * *

Common name Scientific name Where listed Status Listing citations and applicable

rules

*******

REPTILES

*******

Gartersnake, narrow-headed ....... Thamnophis rufipunctatus .......... Wherever found .... T ....................... 79 FR 38678, 7/8/2014; 50 CFR

17.95(c).

CH

*******

■3. Amend § 17.95(c) by adding an

entry for ‘‘Narrow-headed Gartersnake

(Thamnophis rufipunctatus)’’

immediately following the entry for

‘‘American Crocodile (Crocodylus

acutus)’’ to read as follows:

§ 17.95 Critical habitat—fish and wildlife.

* * * * *

(c) * * *

* * * * *

Narrow-headed Gartersnake

(Thamnophis rufipunctatus)

(1) Critical habitat units are depicted

for Greenlee, Apache, Yavapai, Gila, and

Coconino Counties in Arizona, as well

as in Grant, Hidalgo, and Catron

Counties in New Mexico, on the maps

in this entry.

(2) Within these areas, the physical or

biological features essential to the

conservation of narrow-headed

gartersnake consist of the following

components:

(i) Perennial streams or spatially

intermittent streams that provide both

aquatic and terrestrial habitat that

allows for immigration, emigration, and

maintenance of population connectivity

of narrow-headed gartersnakes and

contain:

(A) Pools, riffles, and cobble and

boulder substrate, with a low amount of

fine sediment and substrate

embeddedness;

(B) Organic and natural inorganic

structural features (e.g., cobble bars,

rock piles, large boulders, logs or

stumps, aquatic vegetation, vegetated

islands, logs, and debris jams) in the

stream channel for basking,

thermoregulation, shelter, prey base

maintenance, and protection from

predators;

(C) Water quality that meets or

exceeds applicable State surface water

quality standards; and

(D) Terrestrial habitat up to 328 feet

(100 meters) from the active stream

channel (water’s edge) that includes

flood debris, rock piles, and rock walls

containing cracks and crevices, small

mammal burrows, downed woody

debris, and streamside vegetation (e.g.,

alder, willow, sedges, and shrubs) for

thermoregulation, shelter, brumation

and protection from predators

throughout the year.

(ii) Hydrologic processes that

maintain aquatic and riparian habitat

through:

(A) A natural flow regime that allows

for periodic flooding, or if flows are

modified or regulated, a flow regime

that allows for the movement of water,

sediment, nutrients, and debris through

the stream network, as well as

maintenance of native fish populations;

and

(B) Physical hydrologic and

geomorphic connection between the

active stream channel and its adjacent

terrestrial areas.

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(iii) A combination of native fishes,

and soft-rayed, nonnative fish species

such that prey availability occurs across

seasons and years.

(iv) An absence of nonnative aquatic

predators, such as 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 narrow-headed

gartersnakes is not inhibited and

maintenance of viable prey populations

is still occurring.

(v) Elevations of 2,300 to 8,200 feet

(700 to 2,500 meters).

(3) Critical habitat does not include

manmade structures (such as buildings,

aqueducts, runways, roads, and other

paved areas) and the land on which they

are located existing within the legal

boundaries on November 22, 2021.

(4) Data layers defining map units

were created 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. The active channel along a

stream is depicted as the ‘‘Wetlands’’

feature class from the Service’s National

Wetlands Inventory dataset. Any

discrepancies between the ‘‘Flowline’’

and ‘‘Wetlands’’ feature classes were

resolved using aerial imagery from

Google Earth Pro. Elevation range is

masked using the ‘‘Elev_Contour’’

feature class of the National Elevation

Dataset. The administrative boundaries

for Arizona and New Mexico were

obtained from the Arizona Land

Resource Information Service and New

Mexico Resource Geographic

Information System, respectively. This

includes the most current (as of

November 22, 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 http://www.fws.gov/southwest/es/

arizona/, at http://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:

Figure 1 to Narrow-headed

Gartersnake paragraph (5)

BILLING CODE 4333–15–P

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(6) Unit 1: Upper Gila River Subbasin

Unit, Grant and Hidalgo Counties, New

Mexico.

(i) Unit 1 consists of 7,005 acres (ac)

(2,835 hectares (ha)) in Grant and

Hidalgo Counties, and is composed of

lands in Federal (4,084 ac (1,653 ha)),

State (553 ac (224 ha)), and private

(2,368 ac (958 ha)) ownership in eight

subunits west of the town of Glenwood,

north of Silver City, and South of Gila

and Cliff.

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(ii) Map of Unit 1 follows: Figure 2 to Narrow-headed

Gartersnake paragraph (6)(ii)

(7) Unit 2: San Francisco River

Subbasin Unit, Catron County, New

Mexico.

(i) Unit 2 consists of 5,895 ac (2,386

ha) in Catron County, and is composed

of lands in Federal (3,924 ac (1,588 ha)),

State (3 ac (1 ha)), and private (1,967 ac

(796 ha)) ownership in six subunits near

the towns of Glenwood and Reserve.

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(ii) Map of Unit 2 follows: Figure 3 to Narrow-headed

Gartersnake paragraph (7)(ii)

(8) Unit 3: Blue River Subbasin Unit,

Greenlee County, Arizona, and Catron

County, New Mexico.

(i) Unit 3 consists 3,368 ac (1,363 ha)

in Greenlee County, Arizona, and

Catron County, New Mexico, and is

composed of lands in Federal (2,918 ac

(1,181 ha)) and private (450 ac (182 ha))

ownership in three subunits near the

towns of Blue, Arizona, and Luna, New

Mexico.

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Federal Register / Vol. 86, No. 201 / Thursday, October 21, 2021 / Rules and Regulations

(ii) Map of Unit 3 follows: Figure 4 to Narrow-headed

Gartersnake paragraph (8)(ii)

(9) Unit 4: Eagle Creek Unit, Greenlee

County, Arizona. (i) Unit 4 consists of 84 ac (34 ha) in

Greenlee County, and is composed of

lands in Federal (84 ac (34 ha)) and

private (1 ac (

town of Woolaroc.

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(ii) Map of Unit 4 follows: Figure 5 to Narrow-headed

Gartersnake paragraph (9)(ii)

(10) Unit 5: Black River Subbasin

Unit, Apache and Greenlee Counties,

Arizona.

(i) Unit 5 consists of 1,780 ac (720 ha)

in Apache and Greenlee Counties, and

is composed of lands in Federal (1,780

ac (720 ha)) ownership in six subunits

near the towns of Maverick and

Hannigan Meadow.

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(ii) Map of Unit 5 follows: Figure 6 to Narrow-headed

Gartersnake paragraph (10)(ii)

(11) Unit 6: Canyon Creek Unit, Gila

County, Arizona. (i) Unit 6 consists of 204 ac (82 ha) in

Gila County, and is composed of lands in Federal (204 ac (82 ha)) ownership

southwest of the town of Heber.

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(ii) Map of Unit 6 follows: Figure 7 to Narrow-headed

Gartersnake paragraph (11)(ii)

(12) Unit 7: Tonto Creek Subbasin

Unit, Gila County, Arizona.

(i) Unit 7 consists of 2,293 ac (928 ha)

in Gila County, and is composed of

lands in Federal (2,176 ac (881 ha)) and

private (117 ac (47 ha)) ownership in

three subunits near the towns of Jakes

Corner and Gisela.

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(ii) Map of Unit 7 follows: Figure 8 to Narrow-headed

Gartersnake paragraph (12)(ii)

(13) Unit 8: Verde River Subbasin

Unit, Coconino and Yavapai Counties,

Arizona.

(i) Unit 8 consists of 3,156 ac (1,277

ha) in Coconino and Yavapai Counties,

and is composed of lands in Federal

(2,446 ac (990 ha)), State (109 ac (44

ha)), and private (602 ac (244 ha))

ownership in three subunits near the

towns of Sedona and Perkinsville.

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(ii) Map of Unit 8 follows: Figure 9 to Narrow-headed

Gartersnake paragraph (13)(ii)

BILLING CODE 4333–15–C

* * * * *

Martha Williams,

Principal Deputy Director, Exercising the

Delegated Authority of the Director, U.S. Fish

and Wildlife Service.

[FR Doc. 2021–20962 Filed 10–20–21; 8:45 am]

BILLING CODE 4333–15–P

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Citation	86 FR 58474
Record Number	2021-20962
Published date	21 October 2021
Section	Rules and Regulations
Court	Fish And Wildlife Service

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

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