Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Jemez Mountains Salamander
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Final rule.
CFR Part: "50 CFR Part 17"
RIN Number: "RIN 1018-AZ28"
Citation: "78 FR 69569"
Document Number: "Docket No. FWS-R2-ES-2013-0005: 4500030113"
"Rules and Regulations"
SUMMARY: We, the
   DATES: This rule is effective on
   ADDRESSES: This final rule is available on the Internet at http://www.fws.gov/southwest/es/NewMexico/index.cfm and at http://www.regulations.gov at Docket No. FWS-R2-ES-2013-0005. Comments and materials we received, as well as supporting documentation used in preparing this final rule, are available for public inspection, by appointment, during normal business hours, at the
   The coordinates or plot points or both from which the maps are generated are included in the administrative record for this critical habitat designation and are available at http://www.fws.gov/southwest/es/NewMexico/index.cfm, at http://www.regulations.gov at Docket No. FWS-R2-ES-2013-0005, and at the
   FOR FURTHER INFORMATION CONTACT:
   SUPPLEMENTARY INFORMATION: Why we need to publish a rule. Under the Endangered Species Act (Act), any species that is determined to be an endangered or threatened species requires critical habitat to be designated, to the maximum extent prudent and determinable. Designations and revisions of critical habitat can only be completed by issuing a rule.
   We listed the
   The critical habitat areas we are designating in this rule constitute our current best assessment of the areas that meet the definition of critical habitat for the
   We have prepared economic and environmental analyses of the designation of critical habitat. In order to consider economic impacts, we have prepared an analysis of the economic impacts of the critical habitat designation and related factors. We also prepared an environmental analysis of the designation of critical habitat in order to evaluate whether there would be any significant environmental impacts as a result of the critical habitat designation. We announced the availability of the draft economic analysis and the draft environmental assessment in the
   Peer review and public comment. We sought comments from seven independent specialists to ensure that our designation is based on scientifically sound data and analyses. We obtained opinions from three of the seven knowledgeable individuals with scientific expertise to review our technical assumptions and analysis, and to determine whether or not we had used the best available scientific information. These peer reviewers generally concurred with our methods and conclusions, and they provided additional information, clarifications, and suggestions to improve this final rule. Information we received from peer review is incorporated in this final revised designation. We also considered all comments and information we received from the public during the comment period.
Previous Federal Actions
   These actions are described in the Previous Federal Actions section of the final listing rule published on
Background
   
   For additional background information on the biology, taxonomy, distribution, and habitat of the
Summary of Comments and Recommendations
   We requested written comments from the public on the proposed designation of critical habitat for the
   During the first comment period, we received nine comment letters addressing the proposed listing of the
Peer Review
   In accordance with our peer review policy published on
   We reviewed all comments we received from the peer reviewers for substantive issues and new information regarding critical habitat for the
Peer Reviewer Comments
   (1) Comment: Two peer reviewers thought we should not have removed isolated historical data points (i.e., survey locations). One peer reviewer noted that there did seem to be sufficient area for the conservation of the species, and the other peer reviewer thought the isolated historical point data should be included, especially for areas in the northeast portion of the
   Our Response: We removed isolated historical data points from our analysis only in occasional instances when the areas at and around such isolated data points have not been visited for approximately 20 years or more. The survey data for these areas are insufficient to determine whether the areas are occupied. We are not aware of any area where large numbers of salamanders have ever been observed that is outside of the critical habitat boundaries designated in this final rule.
   (2) Comment: One peer reviewer commented that solid stands of Ponderosa pine (Pinus ponderosa) are not optimal salamander habitat, and few, if any, salamanders are likely to occur here due to the drier conditions, suggesting that the primary constituent element of certain tree species alone or in combination should not include Ponderosa pine alone.
   Our Response: Based on the biological and physiological needs of the species, pure stands of Ponderosa pine may not be the most favorable type of habitat and do not represent the majority of habitat; however, the species does occur in pure stands of Ponderosa pine.
   The primary constituent elements essential to the conservation of the species (such as space, food, cover, and protected habitat) include tree canopy cover greater than 50 percent, elevation between 6,988 to 11,254 feet (ft) (2,130 to 3,430 meters (m)), coniferous logs, and underground habitat (more detailed description of these features are in the Primary Constituent Elements for the Jemez Mountains Salamander section of this final rule). The pure stands of Ponderosa pine contain at least one of the primary constituent elements for the
   (3) Comment: One peer reviewer commented on the statement in the proposed critical habitat rule, "There does not seem to be any areas in occupied salamander habitat that are protected from disturbance" (77 FR 56504;
   Our Response:
   (4) Comment: Two peer reviewers and some commenters thought additional information regarding our understanding of the subsurface rock and soil components of salamander habitat should be included in the habitat section.
   Our Response: Subsurface geology and loose rocky soil structure may be an important attribute of salamander habitat (Degenhardt et al. 1996, p. 28). However, the composition of this belowground habitat has not been fully investigated, although soils comprised of pumice or tuft generally are not suitable. The salamander's belowground habitat appears to be deep, fractured, subterranean igneous rock in areas with high soil moisture (New Mexico Endemic Salamander Team 2000, p. 2). Everett (2003) reported that the salamander occurred in areas where soil texture was composed of 56 percent sandy clay loam, 36 percent clay loam, 6 percent sandy loam, and 2 percent silty clay loam (p. 28); the overall soil bulk density ranged from 0.2 to 0.98 ounces per cubic inch (oz per in3) (0.3 to 1.7 grams per cubic centimeter (g per cm3) (p. 28); and average soil moisture ranged from 4.85 to 59.7 percent (p. 28). Sites with salamanders had a soil pH of 6.6 (+/- 0.08), and sites without salamanders had a soil pH of 6.2 (+/- 0.06) (Ramotnik 1988, pp. 24-25). We have updated the relevant sections of this final rule to better describe our current understanding of subsurface rock and soil components where the
Comments From the
   (5) Comment: It is questionable whether the data used in the proposed rule are sufficient for the Service to determine critical habitat and primary constituent elements.
   Our Response: It is often the case that biological information may be lacking for rare species; however, we reviewed all available information and incorporated it into this final rule. Section 4(a)(3) of the Act (16 U.S.C.
   (6) Comment: Practical ways to measure primary constituent elements should be defined, and the scale at which primary constituent elements are measured on the landscape should be specified. It is virtually impossible for the USFS to plan for a specific range in canopy cover or plan a thinning or prescribed fire project with canopy cover as an objective. Forests of the
   Our Response: The Service is not requiring the USFS to plan for a specific range in canopy cover or plan a thinning or prescribed fire project with canopy cover as an objective. Rather, we are evaluating whether the affected critical habitat would continue to serve its intended conservation role for the species. Determining effects to critical habitat will be determined through section 7 consultation with the Service. These consultations will take place within the context of dynamic forests in need of restoration. We anticipate consultations with the USFS analyzing the primary constituent element of "moderate to high tree canopy cover, typically 50 to 100 percent canopy closure, that provides shade and maintains moisture and high relative humidity at the ground surface" for the
   (7) Comment: The primary constituent element of canopy cover needs to be defined as a range rather than a specific number and possibly by forest type.
   Our Response: In this final rule, we have clarified the primary constituent element concerning canopy cover is a range. The range for tree canopy is defined in this final rule as moderate to high tree canopy cover, typically 50 to 100 percent canopy closure, that provides shade and maintains moisture and high relative humidity at the ground surface.
   (8) Comment: High canopy cover is likely to decrease the amount of moisture reaching the soil surface through sublimation (transformation from a solid to a gas without becoming a liquid) of snow from the tree canopy (Storck et al. 2002), further impacting moisture regimes for salamanders.
   Our Response: The relationship between seasonal precipitation, canopy cover, vegetation type, tree density, geology, soil type, and soil moisture is complex and not well-studied in the
   Soil moisture conditions can vary spatially between the ground under tree canopy and the ground without tree canopy, as a result of the interrelated processes among soil evaporation, leaf interception, runoff generation and redistribution, and plant water use (Breshears et al. 1998, p. 1015). Relative to the ground without tree canopy, the ground beneath the canopy receives reduced precipitation input due to the interception of the precipitation from leaves. This also influences soil evaporation rates (Breshears et al. 1998, p. 1010). In a study measuring spatial variations in soil evaporation caused by tree shading for a water-limited pine forest in
   Without specific studies measuring these processes in salamander habitat, we are not able to determine how the changes in vegetation composition and structure may have altered soil moisture, evaporation, and temperature processes, but we do understand that vegetation structure can directly influence hydrological processes that are correlated to solar radiation, precipitation, and seasonality, as well as other abiotic factors, such as soil type, slope, and topography. Furthermore, these complex interactions should be considered when forest restoration treatments that alter canopy cover are conducted in salamander habitat.
   (9) Comment: Consultations could result in modifications, which result in delays to projects that would reduce the threat of high-intensity wildfire, thereby causing significant impacts to human health and safety.
   Our Response: Under no circumstances should a Service representative obstruct an emergency response decision made by the action agency where human life is at stake. In any future consultation for the salamander, the Service does not intend or expect to recommend measures that will increase the threat of high-intensity wildfire. Both public and private entities may experience incremental time delays for projects and other activities due to requirements associated with the need to re-initiate the section 7 consultation process or compliance with other laws triggered by the designation. To the extent that delays result from the designation, they are considered indirect, incremental impacts of the designation.
   (10) Comment: Several commenters stated that more scientific information is needed to accurately define the primary constituent elements, that the primary constituent elements are overly broad and are not appropriate, and the the Service has not looked at all the scientific data available on the ecology of the
   Our Response: Section 4(b)(2) of the Act states, "The Secretary shall designate critical habitat, and make revisions thereto, under subsection (a)(3) on the basis of the best scientific data available." We considered the best scientific information available to us at this time, as required by the Act. This designation is based upon the known body of information on the biology of the
   (11) Comment: Several commenters stated that the primary constituent elements and critical habitat for the salamander are contrary to managing fire-resilient forests, are contrary to restoring forests to a sustainable fire regime condition class, or are a significant contribution to fuel loading and risk of catastrophic fire. Designation and management of critical habitat will place an additional burden on land management agencies, further inhibiting their ability to prevent or suppress large-scale, stand-replacing wildfire, one of the greatest threats to the salamander and its habitat. Some of the primary constituent elements are based on current conditions, not historical conditions. Management for the salamander should be done in a manner to improve fire resiliency and with a goal of moving habitat toward old growth characteristics where feasible, taking into consideration ecological conditions such as slope, aspect, soil productivity, and recognizing that forests are dynamic where climate, fire, and disease are drivers. The citation used for canopy cover is based on current and unsustainable forest conditions. Application of survey requirements for salamanders across the described range of above 6,900 ft (2,103 m) would effectively prevent management from occurring at any scale that would influence landscape-level wildfire.
   Our Response: We understand fire-resilient forests to be forests that are able to survive wildfires relatively intact, or with less severe ecological damage than would occur in non-resilient forests. The Service recognizes that salamander habitat has undergone change resulting from historical grazing practices and effective fire suppression, most often resulting in shifts in vegetation composition and structure and increased risk of large-scale, stand-replacing wildfire. While we do not have a full understanding of how these particular alterations affect the salamander (potentially further drying habitat through increased water demand or increased density of trees, or, alternatively, potentially increasing habitat moisture from a higher canopy cover), we do know that the changes in the vegetative component of salamander habitat have greatly increased the risk of large-scale, stand-replacing wildfire.
   In the proposed rule and this final rule, the Service identifies reducing fuels to minimize the risk of severe wildfire in a manner that considers the salamander's biological requirements as a special management activity that could ameliorate threats to the species. We note that fires are a natural part of the fire-adapted ecosystem in which the salamander has evolved. This may include prescribed fire and thinning treatments, restoration of the frequency and spatial extent of such disturbances as regeneration treatments, and implementation of prescribed natural fire management plans where feasible. We consider use of such treatments to be compatible with the ecosystem management of habitat mosaics and the best way to reduce the threats of catastrophic wildfire. The maintenance of primary constituent elements, moist microhabitat conditions, and attributes of a mixed severity fire regime (a mosaic of differing fire intensities) over a portion of the landscape and in areas that support salamanders is important to the recovery of the salamander, and critical habitat designation does not preclude the proactive treatments necessary to reduce the risk of catastrophic fire or proactively managing forests to restore them to old growth conditions, nor are there survey requirements associated with this designation.
   The loss of salamander habitat by catastrophic fire is counter to the intended benefits of critical habitat designation. Furthermore, we expect that some activities may be considered to be of benefit to salamander habitat and, therefore, would not be expected to adversely modify critical habitat or place an additional burden on land management agencies. In addition, critical habitat does not preclude adaptive management or the incorporation of new information on the interaction between natural disturbance events and forest ecology. We continue to support sound ecosystem management and the maintenance of biodiversity, and we will fully support land management agencies in addressing the management of fire to protect and enhance natural resources under their stewardship.
   During a multi-agency, multi-stakeholder collaborative meeting in 2010, to discuss salamander conservation and forest management, attendants recognized the importance of allowing fire to return to southwestern forests, and the
   (12) Comment: The USFS stated that using only the decision criterion of administrative costs associated with expanded consultation fails to include the full range of costs when projects are delayed or changed. The USFS suggests that the Service should also calculate the costs associated with the reasonable and prudent alternatives that could result from consultation, such as relocation of projects outside salamander habitat or monitoring for salamanders before activities occur.
   Our Response: As stated in the executive summary of the final economic analysis, the Service anticipates that in cases where an action is found to adversely modify critical habitat for the salamander, the action would also be found to jeopardize the species (IEc 2013, p. ES-4). That is, actions which the Service is likely to recommend avoiding adverse modification are the same as those to avoid jeopardy. Thus, the incremental impacts of the critical habitat designation for the salamander appear unlikely to include additional conservation actions or project modifications. As a result, the economic analysis focused on quantifying the incremental impacts associated with the administrative effort of addressing potential adverse modification of critical habitat in the context of section 7 consultations.
Comments Received From the
   (13) Comment: The draft environmental assessment should describe the effects that large areas (such as the area currently proposed as critical habitat) of closed canopy may have to the salamander under current fire conditions.
   Our Response: We understand that the forests of the
   (14) Comment: The draft environmental assessment first states it will analyze effects on physical, biological, and socioeconomic resources, but its analysis then states it only focuses on consultation impacts.
   Our Response: Section 3.1.1 of the final environmental assessment, "Methodology," explains why the proposed action is not expected to produce effects to physical and biological resources environments, and why the analysis focuses on the impacts of expanding jeopardy consultations to include adverse modification (
   (15) Comment: The draft environmental assessment states that effects from designating critical habitat would be minor, but presents no evidence. The USFS would argue that not being able to implement a project, such as the
   Our Response: As stated in the final environmental assessment, we may use habitat as a proxy for species presence in future consultations, because the life history and behavior of salamanders make them difficult to survey or detect (
   (16) Comment: The environmental assessment should analyze the benefits of exclusion of critical habitat according to section 4(b)(2) of the Act.
   Our Response: 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 she determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the 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. In making that determination, the statute on its face, as well as the legislative history, are clear that the Secretary has broad discretion regarding which factor(s) to use and how much weight to give to any factor. We did not identify any areas for exclusion that were appropriate for consideration under section 4(b)(2) of the Act; therefore there were no exclusions to evaluate in the environmental assessment.
   (17) Comment: The draft environmental assessment lists contradictory recommendations to avoid destruction or adverse modification of critical habitat and to avoid jeopardy.
   Our Response: No consultations have yet been conducted for the Jemez Mountains salamander, so the potential outcomes and modifications presented in the environmental assessment represent a range of possible outcomes. The type of project, the timing of the project, and the duration of the project, in addition to other factors, will be evaluated during any future consultations and will determine the specific outcomes or recommended modifications. In most cases, we expect that the same agencies and types of projects will go through the section 7 consultation process with or without critical habitat, and we anticipate that recommended actions in a section 7 consultation will be same to avoid adverse modification and jeopardy.
   (18) Comment: Cumulative effects analysis in the draft environmental assessment needs to: (a) Identify spatial and temporal bounds, (b) include cumulative effects for other foreseeable listings, (c) total all consultation costs within the proposed area, and (d) clarify what cumulative effects are being considered.
   Our Response: The spatial bounds for cumulative analysis are the boundaries of proposed critical habitat. While it is possible that certain activities requiring consultation could occur outside of critical habitat, there is none currently foreseeable. Also, it was beyond the purview of the environmental assessment to speculate on the prudency or actual boundaries of a critical habitat designation for candidate species. In addition, total consultation costs are given in the analysis of socioeconomic impacts as approximately
   (19) Comment: The only costs listed in the environmental assessment are for the Socioeconomics and Development sections.
   Our Response: In our economic analysis, the Service estimates the present value of all incremental impacts to be approximately
   (20) Comment: The map on page 16 of the draft environmental assessment should show where salamanders are found, and overlay the essential, survey, and peripheral zones.
   Our Response: The map on page 16 of the environmental assessment displays the proposed critical habitat units. Overlaying the habitat management zones, as described in the multi-agency Salamander Conservation Plan (NMEST 2000), does not aid in evaluating the environmental impacts of critical habitat designation. The coordinates or plot points or both from which the maps for designated critical habitat are generated are included in the administrative record for this critical habitat designation and are available at http://www.fws.gov/southwest/es/NewMexico/index.cfm, at http://www.regulations.gov at Docket No. FWS-R2-ES-2013-0005, and at the
   (21) Comment: In the draft environmental assessment, the Service projects a number of consultations within the "Land Use" section, but for no other resources.
   Our Response: Projected numbers of consultations have been added to the relevant sections of the final environmental assessment: 20 formal consultations for fire management, 6 for travel and recreation, 4 for noxious weed management, 2 for the Seven Springs Fish Hatchery, and 5 for road projects (
   (22) Comment: There is a contradiction in the draft environmental assessment statement that, "As human development and recreation increase in the Jemez Mountains the presence of Wild Urban Interfaces (WUIs) could increase within and around proposed critical habitat."
   Our Response: Page 45 the draft environmental assessment stated, "Projects that increase human disturbances in remote locations like residential development, construction of roads and trails in recreational areas, and road clearing and maintenance activities, could adversely affect the species and its habitat," which is consistent with the statement to which the commenter refers (
   (23) Comment: Explain the acronyms EMP and EST in Table 3.5 of the draft environmental assessment.
   Our Response: The acronyms refer to the number of employees (EMP) and establishments (EST) in each industry type. This has been clarified in the "Table Heading" of the final environmental assessment (
   (24) Comment: Clarify whether Table 3.7 on page 54 of the draft environmental assessment applies to areas of the
   Our Response: The numbers represent visitors to the whole
Comments From the State
   We received comments from the
   (25) Comment: The Service should address the Jemez Mountains salamander as a watershed health issue rather than a single species habitat preservation issue, and the designation of critical habitat will be counter-productive to solving the problem of poor watershed health in the Jemez Mountains. The USFS commented that the need to designate critical habitat is not supported by evidence.
   Our Response: The Service is required to designate critical habitat concurrently with listing a species. See our response to comment 5, above, for an explanation of critical habitat designation requirements under the Act. Designating critical habitat for the Jemez Mountains salamander does not preclude forest restoration or management practices, including but not limited to prescribed fire and thinning treatments, restoration of the frequency and spatial extent of such natural disturbances, and implementation of prescribed natural fire management plans where feasible. We consider use of such treatments to be compatible with the ecosystem management of habitat mosaics and the best way to reduce the threats of catastrophic wildfire to Jemez Mountains salamander habitat and provide protection for the species. In addition, critical habitat designation for the Jemez Mountains salamander does not preclude adaptive management or the incorporation of new information on the interaction between natural disturbance events and forest ecology. We continue to support sound ecosystem management and the maintenance of biodiversity, and we will fully support land management agencies in addressing the management of fire to protect and enhance natural resources under their stewardship.
   (26) Comment: The efforts of private landowners and Soil and Water Conservation Districts (SWCDs) to prevent catastrophic wildfire and rehabilitate after wildfire are not considered. The
   Our Response: We recognize that private landowners and SWCDs are contributing to rehabilitation in burned areas by, among other things, seeding and controlling erosion. We know that private landowners and SWCDS are some of the numerous partners that are working with the
   (27) Comment: The Service should partner with ongoing efforts, such as the
   Our Response: We agree that strong partnerships and collaborations are essential for the restoration and conservation of our natural resources. The Service appreciates the ongoing efforts and collaborations with its existing partners, including members of the
Comments From the
   (28) Comment: The designation of critical habitat could limit access to project sites with the effect of increasing associated costs or preventing access entirely, resulting in limited or cancelled watershed restoration work.
   Our Response: The designation of critical habitat does not prevent access to any land, whether private, tribal, State or Federal. Critical habitat receives protection under section 7 of the Act through the requirement that Federal agencies ensure, in consultation with the Service, that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation does not allow the government or public to access private lands. Such designation does not require implementation of restoration, recovery, or enhancement measures by non-Federal landowners. Where a landowner requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat, the consultation requirements of section 7(a)(2) of the Act apply, but even in the event of a destruction or adverse modification finding, the obligation of the Federal action agency and the landowner is not to restore or recover the species, but to implement reasonable and prudent alternatives to avoid destruction or adverse modification of critical habitat. The final environmental analysis lists potential project modifications that could be recommended to avoid adverse modification (
   (29) Comment: The designation of critical habitat could limit access, and ranching activity would be negatively affected.
   Our Response: See our response to comment 28, above. In section 1.8.1, Livestock Grazing, of the final environmental analysis, the following sentence has been revised from, "Impacts may include small-scale habitat modification, such as livestock trail establishment or soil compaction, or direct effects, such as trampling" To, "Impacts may include small-scale habitat modification, such as livestock trail establishment or soil compaction; limitations on access to grazing allotments by livestock managers through road closures or decommissioning; or direct effects, such as trampling" (
   (30) Comment: Listing of the salamander and designation of critical habitat may further slow progress of the
   Our Response: Section 3.3.1 of the final economic analysis has been revised to discuss this concern (IEc 2013, p. 3-6). The analysis quantifies estimated additional administrative costs of critical habitat for the Jemez Mountaians salamander to be approximately
Comments From
   (31) Comment: The Service indicated in the proposed rule that salvage logging and timber harvesting could adversely affect the salamander's habitat because these activities, among other things, compact soils or increase the risk of warming the soil moisture. In response, the
   Our Response: We agree with these statements, and believe that how actions such as timber harvesting occur could result in adverse, beneficial, or both impacts to the salamander and its habitat.
   (32) Comment: The
   Our Response: The following material has been added to section 1.8.1 in the final environmental assessment (
   (33) Comment:
   Our Response: See our responses to comments 11 and 25, above.
Public Comments
   (34) Comment: Jemez Mountains salamanders have been found in areas without canopy or with a canopy other than mixed conifer. The emphasis placed on some of the primary constituent elements and not others are based on the relative ease or difficulty of finding salamanders in habitat with those elements.
   Our Response: Primary constituent elements are those specific elements of the physical or biological features that provide for a species' life-history processes and are essential to the conservation of the species. See our response to comment 5, above, for an explanation of critical habitat designation requirements under the Act.
   While the Jemez Mountains salamander can be found in areas outside forested areas and outside coniferous forest in particular, when active above ground, the Jemez Mountains salamander is more commonly found within forested areas under decaying logs, rocks, bark, or moss mats, or inside decaying logs and stumps. Jemez Mountains salamanders are generally found in association with decaying coniferous logs, particularly Douglas fir, considerably more often than deciduous logs, likely due to the differences in physical features (e.g., coniferous logs have blocky pieces with more cracks and spaces than deciduous logs) (Ramotnik 1988, p. 53). See the Criteria Used To Identify Critical Habitat section of this final rule for a complete description of the information used to designate critical habitat.
   Our initial step in identifying critical habitat was to determine the physical or biological habitat features essential to the conservation of the species. The Service has identified four primary constituent elements sufficient to support the life-history processes and which are essential to the conservation of the species. We then identified the geographic areas that are occupied by the Jemez Mountains salamander and that contain one or more of the physical or biological features. We are designating two critical habitat units based on sufficient elements of the physical or biological features being present to support the Jemez Mountains salamander's life processes. Some portions of the units contain all of the identified elements of physical or biological features and support multiple life processes. Some portions of units contain only some elements of the physical or biological features necessary to support the Jemez Mountains salamander's particular use of that habitat. The Service did not place emphasis on one primary constituent element over another.
   (35) Comment: The proposed rule cited the influence of soil pH in salamander habitat, but ignores it as a primary constituent element.
   Our Response: Soil pH may be an important variable in salamander habitat; however, data concerning soil pH in
   (36) Comment: Preference of salamander habitat use on steep slopes as reported in Ramotnik (1988) has been dismissed.
   Our Response: Additional survey information since Ramotnik (1988) indicates that salamanders use habitat on all slopes. Further, Everett (2003) reported that the salamander occurred on all slope aspects (p. 21) (the average slope ranged from 4 to 40.5 degrees (p. 24)).
   (37) Comment: No evidence is presented that time above ground is necessary for the salamander's life cycle, but most of the primary constituent elements of critical habitat have to do with above ground components of mixed conifer forests.
   Our Response: Please see our responses to comments 4, 10, and 34. Additionally, above ground surface activity during wet surface conditions is a characteristic of the natural history of the Jemez Mountains salamander. Stomach contents consist primarily of above-ground and ground-dwelling invertebrates. Further, plethodontid salamanders store fat reserves in their tails for energetic use when foraging opportunities are reduced or do not exist (e.g., underground). Consequently, we conclude that one purpose for above ground activity is to feed. Additionally, based on reproductive studies, this species mates in July and August, which coincides with the above-ground activity period. We, therefore, conclude that time above ground is necessary for foraging and mating. See the Criteria Used To Identify Critical Habitat section of this final rule for a complete description of the information used to designate critical habitat.
   (38) Comment: One commenter stated that the draft economic analysis should include a section explaining the benefits of having critical habitat for the Jemez Mountains salamander. The commenter also stated that itemized costs would be beneficial to the analysis.
   Our Response: Chapter 6 of the draft economic analysis discussed benefits of the designation. Chapters 3-5 and Appendix B present detailed information and assumptions used to develop estimates of the anticipated incremental costs of the designation.
Changes From the Previously Proposed Critical Habitat Designation
   In this final critical habitat designation, we are finalizing the minor changes that were proposed in the reopening of the public comment period that published on
Critical Habitat
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.
   Conservation, as defined under section 3 of the Act, means to use and the use of all methods and procedures that are necessary to bring an endangered or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking.
   Critical habitat receives protection under section 7 of the Act through the requirement that Federal agencies ensure, in consultation with the Service, that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation does not allow the government or public to access private lands. Such designation does not require implementation of restoration, recovery, or enhancement measures by non-Federal landowners. Where a landowner requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat, the consultation requirements of section 7(a)(2) of the Act would apply, but even in the event of a destruction or adverse modification finding, the obligation of the Federal action agency and the landowner is not to restore or recover the species, but to implement reasonable and prudent alternatives to avoid destruction or adverse modification of critical habitat.
   Under the first prong of the Act's definition of critical habitat, areas within the geographical area occupied by the species at the time it was listed, are included in a critical habitat designation if they contain physical or biological features (1) which are essential to the conservation of the species and (2) which may require special management considerations or protection. For these areas, critical habitat designations identify, to the extent known using the best scientific and commercial data available, those physical or biological features that are essential to the conservation of the species (such as space, food, cover, and protected habitat). In identifying those physical or biological features within an area, we focus on the principal biological or physical constituent elements (primary constituent elements such as roost sites, nesting grounds, seasonal wetlands, water quality, tide, soil type) that are essential to the conservation of the species. Primary constituent elements are those specific elements of the physical or biological features that provide for a species' life-history processes and are essential to the conservation of the species.
   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. For example, an area currently occupied by the species but that was not occupied at the time of listing may be essential to the conservation of the species and may be included in the critical habitat designation. We designate critical habitat in areas outside the geographical area occupied by a species only when a designation limited to its range would be inadequate to ensure the conservation of the species.
   Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific and commercial data available. Further, our Policy on Information Standards Under the Endangered Species Act (published in the
   When we are determining which areas should be designated as critical habitat, our primary source of information is generally the information developed during the listing process for the species. Additional information sources may include 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 insure their actions are not likely to jeopardize the continued existence of any endangered or threatened species, and (3) section 9 of the Act's prohibitions on taking any individual of the species, including taking caused by actions that affect habitat. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. These protections and conservation tools will continue to contribute to recovery of this species. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans (HCPs), or other species conservation planning efforts if new information available at the time of these planning efforts calls for a different outcome.
Physical or Biological Features
   In accordance with section 3(5)(A)(i) and 4(b)(1)(A) of the Act and regulations at 50 CFR 424.12, in determining which areas within the geographical area occupied by the species at the time of listing to designate as critical habitat, we consider the physical or biological features essential to the conservation of the species and which may require special management considerations or protection. These include, but are not limited to:
   (1) Space for individual and population growth and for normal behavior;
   (2) Food, water, air, light, minerals, or other nutritional or physiological requirements;
   (3) Cover or shelter;
   (4) Sites for breeding, reproduction, or rearing (or development) of offspring; and
   (5) Habitats that are protected from disturbance or are representative of the historical, geographical, and ecological distributions of a species.
   We derive the specific physical or biological features essential for the Jemez Mountains salamander from studies of this species' habitat, ecology, and life history as described in the Critical Habitat section of the proposed rule to designate critical habitat published in the
Space for Individual and Population Growth and for Normal Behavior
   
   
   The salamander's underground habitat appears to be deep, fractured, subsurface igneous rock in areas with high soil moisture (NMEST 2000, p. 2). Subsurface geology and loose rocky soil structure may be an important attribute of underground salamander habitat (Degenhardt et al. 1996, p. 28). Geologic and moisture constraints likely limit the distribution of the species (NMEST 2000, p. 2). Soil pH (acidity or alkalinity) may limit distribution as well. However, the composition of this subterranean habitat has not been fully investigated. Everett (2003) reported that the salamander occurred in areas where soil texture was composed of 56 percent sandy clay loam, 36 percent clay loam, 6 percent sandy loam, and 2 percent silty clay loam (p. 28); the overall soil bulk density ranged from 0.2 to 0.98 ounces per cubic inch (oz per in 3) (0.3 to 1.7 grams per cubic centimeter (g per cm3) (p. 28); and average soil moisture ranged from 4.85 to 59.7 percent (p. 28). Sites with salamanders had a soil pH of 6.6 (+/- 0.08), and sites without salamanders had a soil pH of 6.2 (+/- 0.06) (Ramotnik 1988, pp. 24-25). The salamander's subterranean habitat appears to be deep, fractured, subterranean igneous rock in areas with high soil moisture (New Mexico Endemic Salamander Team 2000, p. 2). Many terrestrial salamander species deposit eggs in well-hidden sites, such as underground cavities, decaying logs, and moist rock crevices (Pentranka 1998, p. 6). Because the Jemez Mountain salamander spends the majority of its life below ground and because Jemez salamander eggs have not been discovered in the wild, Jemez Mountains salamander eggs are probably laid and hatch underground in the fractured interstices of subterranean igneous rock.
Food, Water, Air, Light, Minerals, or Other Nutritional or Physiological Requirements
   Jemez Mountains salamanders are terrestrial salamanders that are generally active at night and have diurnal (daytime) retreats to places that have higher moisture content relative to surrounding areas that are exposed to warming from the sun and air currents (Duellman and
   High moisture diurnal retreats and high canopy closure are typical habitat features that correlate with plethodontid salamanders. For example, the three habitat features with apparently strong associations with the
   Based on this information, we conclude that substrate moisture through its effect on absorption and loss of water is the most important factor in the ecology of this species (Heatwole and Lim 1961, p. 818). Thus, moist and cool microhabitats are essential for the conservation of the species.
   In regard to food, Jemez Mountains salamanders have been found to consume prey species that are diverse in size and type, with ants, mites, and beetles being eaten most often (Cummer 2005, p. 43).
Cover or Shelter
   When active above ground, the Jemez Mountains salamander is usually found within forested areas under decaying logs, rocks, bark, or moss mats, or inside decaying logs and stumps. Jemez Mountains salamanders are generally found in association with decaying coniferous logs, particularly Douglas fir, considerably more often than deciduous logs, likely due to the differences in physical features (e.g., coniferous logs have blocky pieces with more cracks and spaces than deciduous logs) (Ramotnik 1988, p. 53). Large-diameter (greater than 10 in (25 cm)) decaying logs provide important aboveground habitat because they are moist and cool compared to other cover; larger logs maintain higher moisture and lower temperature longer than smaller logs. These high-moisture retreats also offer shelter and protection from some predators (e.g., skunks (Mephitidae), owls (Strigiformes)).
   The percent surface area of occupied salamander habitat covered by decaying logs, rocks, bark, moss mats, and stumps averaged 25 percent (Everett 2003, p. 35); however, Everett (2003, p. 35) noted that areas with high percentages of area of habitat covered by decaying logs, rocks, bark, moss mats, and stumps are difficult to survey and locate salamanders when present, and may bias the data toward lower percentages of area covered by decaying logs, rocks, bark, moss mats, and stumps.
   Furthermore, there may be high-elevation meadows located within the critical habitat units that are used by the Jemez Mountains salamander. Jemez Mountains salamanders utilize habitat vertically and horizontally above ground and below ground. Currently, we do not fully understand how salamanders utilize areas like meadows, where the aboveground vegetation component differs from areas where salamanders are more commonly encountered (e.g., forested areas); however, salamanders have been found in high-elevation meadows. Therefore, meadows are considered part of the physical or biological features for the Jemez Mountains salamander.
Sites for Breeding, Reproduction, or Rearing (or Development) of Offspring
   Little is known about the reproduction of the Jemez Mountains salamander. Although many terrestrial salamanders deposit eggs in well-hidden sites, such as underground cavities, decaying logs, and moist rock crevices (Pentranka 1998, p. 6), an egg clutch has never been observed during extensive Jemez Mountains salamander surveys. Because the salamander spends the majority of its life below ground, eggs are probably laid and hatch underground. However, we currently lack the information to identify the specific elements of the physical or biological features needed for breeding, reproduction, or rearing of offspring.
Habitats Protected From Disturbance or Representative of the Historical, Geographic, and Ecological Distributions of the Species
   All occupied salamander habitat has undergone change resulting from historical grazing practices and effective fire suppression, most often resulting in shifts in vegetation composition and structure and increased risk of large-scale, stand-replacing wildfire (see Factor A discussion in the final listing rule published on
Primary Constituent Elements for the Jemez Mountains Salamander
   Under the Act and its implementing regulations, we are required to identify the physical or biological features essential to the conservation of the Jemez Mountains salamander in areas occupied at the time of listing, focusing on the features' primary constituent elements. Primary constituent elements are those specific elements of the physical or biological features that provide for a species' life-history processes and are essential to the conservation of the species.
   Based on our current knowledge of the physical or biological features and habitat characteristics required to sustain the species' life-history processes, we determine that the primary constituent elements specific to the Jemez Mountains salamander are:
   (1) Moderate to high tree canopy cover, typically 50 to 100 percent canopy closure, that provides shade and maintains moisture and high relative humidity at the ground surface, and:
   (a) Consists of the following tree species alone or in any combination:
   Douglas fir (Pseudotsuga menziesii); blue spruce (Picea pungens); Engelman spruce (Picea engelmannii); white fir (Abies concolor); limber pine (Pinus flexilis); Ponderosa pine (Pinus ponderosa); and aspen (Populus tremuloides); and
   (b) Has an understory that predominantly comprises:
   (2) Elevations from 6,988 to 11,254 ft (2,130 to 3,430 m).
   (3) Ground surface in forest areas with:
   (a) Moderate to high volumes of large fallen trees and other woody debris, especially coniferous logs at least 10 in (25 cm) in diameter, particularly Douglas fir, which are in contact with the soil in varying stages of decay from freshly fallen to nearly fully decomposed; or
   (b) Structural features, such as rocks, bark, and moss mats, that provide the species with food and cover.
   (4) Underground habitat in forest or meadow areas containing interstitial spaces provided by:
   (a) Igneous rock with fractures or loose rocky soils;
   (b) Rotted tree root channels; or
   (c) Burrows of rodents or large invertebrates.
   With this designation of critical habitat, we intend to identify the physical or biological features essential to the conservation of the species, through the identification of the features' primary constituent elements sufficient to support the life-history processes of the species.
Special Management Considerations or Protections
   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 that are essential to the conservation of the species and which may require special management considerations or protection. The features essential to the conservation of this species may require special management considerations or protection to reduce the following threats: Historical and current fire management practices; severe wildland fire; forest composition and structure conversions; post-fire rehabilitation; forest management; roads, trails, and habitat fragmentation; recreation; and climate change. Furthermore, disease and the use of fire retardants or other chemicals may threaten the salamander in the future, and may need special management considerations. Amphibians, like the salamander, are typically very susceptible to chemicals (LABAT Environmental 2007) due to their permeable skin. However, at this time, the Service does not consider disease or chemical use a threat. A more complete discussion of the threats to the salamander and its habitats can be found in Summary of Factors Affecting the Species section of the final listing rule published on
   Management activities that could ameliorate these threats include (but are not limited to): (1) Reducing fuels to minimize the risk of severe wildfire in a manner that considers the salamander's biological requirements; (2) not implementing post-fire rehabilitation techniques that are detrimental to the salamander in the geographic areas of occupied salamander habitat; and (3) removing unused roads and trails, and restoring habitat. A more complete discussion of the threats to the salamander and its habitats can be found in Summary of Factors Affecting the Species section of the final listing rule published on
Criteria Used To Identify Critical Habitat
   As required by section 4(b)(2) of the Act, we used the best scientific data available to designate critical habitat. We reviewed available information pertaining to the habitat requirements of this species. In accordance with the Act and its implementing regulation at 50 CFR 424.12(e), we considered whether designating additional areas outside those currently occupied is necessary to ensure the conservation of the species. We are not designating any areas outside the geographic area occupied by the species because the designated areas can support populations large enough to provide for the conservation of the species.
   Our initial step in identifying critical habitat was to determine the physical or biological habitat features essential to the conservation of the species, as explained in the previous section. We then identified the geographic areas that contain one or more of the physical or biological features. We also considered information on salamander locations from recent surveys. We used various sources of available information and supporting data that pertain to the habitat requirements of the Jemez Mountains salamander. These included, but were not limited to, the 12-month finding published on
   We plotted point data of survey locations for the salamander using ArcMap (
   Recent surveys of Jemez Mountains salamanders conducted by the USFS found Jemez Mountain salamanders in a specific area where the salamander had not been located before, but was within the area we are designating as critical habitat. This demonstrates the occupancy of the areas we have designated as critical habitat.
   After utilizing the above methods, we refined the model to exclude areas of isolated historical survey point data, which are predominantly on USFS and
   The areas we are designating are not located within developed lands. They contain very few buildings, but do include several highways and forest roads. When determining critical habitat boundaries within this final rule, we made every effort to avoid including lands covered by buildings, pavement, and other structures because such lands lack physical or biological features for the Jemez Mountains salamander. 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 buildings and roads. Any such lands inadvertently left inside critical habitat boundaries shown on the map of this final rule have been excluded by text in the rule and are not designated as critical habitat. Therefore, a Federal action involving these lands will not trigger section 7 consultation with respect to critical habitat and the requirement of no adverse modification unless the specific action would affect the physical or biological features in the adjacent critical habitat.
   The critical habitat designation is defined by the map, as modified by any accompanying regulatory text, presented at the end of this document in the Regulation Promulgation section. 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 the map is based available to the public on http://www.regulations.gov at Docket No. FWS-R2-ES-2013-0005, on our Internet site at http://www.fws.gov/southwest/es/NewMexico/, and at the
   We are designating as critical habitat lands that we have determined are occupied at the time of listing and contain sufficient physical or biological features to support life-history processes essential for the conservation of the Jemez Mountains salamander.
   We are designating two units based on sufficient elements of physical or biological features being present to support the Jemez Mountains salamander's life processes. Some portions of the units contain all of the identified elements of physical or biological features and support multiple life processes. Some portions of units contain only some elements of the physical or biological features necessary to support the Jemez Mountains salamander's particular use of that habitat.
Final Critical Habitat Designation
   We are designating two units as critical habitat for the Jemez Mountains salamander. The critical habitat areas described below constitute our best assessment at this time of areas that meet the definition of critical habitat. Those two units are: (1) Western Jemez Mountains Unit, and (2) Southeastern Jemez Mountains Unit. Table 1 shows the occupied units.
Table 1--Occupancy of Jemez Mountains Salamander By Designated CriticalHabitat Units Unit Occupied at time of Currently listing? occupied? 1 Yes Yes. 2 Yes Yes.
   The approximate area of each critical habitat unit is shown in Table 2.
Table 2--Designated Critical Habitat Units for Jemez Mountains Salamander [Area estimates reflect all land within critical habitat unit boundaries] Critical habitat unit Land Size of unit in acres ownership (hectares) by type 1. Western Jemez Federal 41,466 (16,781) Mountains Unit Private 906 (367) State 73 (30) Total Unit 1 42,445 (17,177) 2. Southeastern Jemez Federal 46,374 (18,767) Mountains Unit Private 1,897 (768) Total Unit 2 48,271 (19,535) Total Federal 87,840 (35,548) Private 2,803 (1,134) State 73 (30) Total 90,716 (36,711)
   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 Jemez Mountains salamander, below.
Unit 1:
   Unit 1 consists of 42,445 ac (17,177 ha) in
Unit 2:
   Unit 2 consists of 48,271 ac (19,535 ha) in
Effects of Critical Habitat Designation
Section 7 Consultation
   Section 7(a)(2) of the Act requires Federal agencies, including the Service, to ensure that any action they fund, authorize, or carry out is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of designated critical habitat of such species. In addition, section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any agency action which is likely to jeopardize the continued existence of any species listed under the Act or result in the destruction or adverse modification of critical habitat.
   Decisions by the 5th and 9th Circuit Courts of Appeals have invalidated our regulatory definition of "destruction or adverse modification" (50 CFR 402.02) (see
   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
   As a result of section 7 consultation, we document compliance with the requirements of section 7(a)(2) through our issuance of:
   (1) A concurrence letter for Federal actions that may affect, but are not likely to adversely affect, listed species or critical habitat; or
   (2) A biological opinion for Federal actions that may affect and are likely to adversely affect, listed species or critical habitat.
   When we issue a biological opinion concluding that a project is likely to jeopardize the continued existence of a listed species and/or destroy or adversely modify critical habitat, we provide reasonable and prudent alternatives to the project, if any are identifiable, that would avoid the likelihood of jeopardy and/or destruction or adverse modification of critical habitat. We define "reasonable and prudent alternatives" (at 50 CFR 402.02) as alternative actions identified during consultation that:
   (1) Can be implemented in a manner consistent with the intended purpose of the action,
   (2) Can be implemented consistent with the scope of the Federal agency's legal authority and jurisdiction,
   (3) Are economically and technologically feasible, and
   (4) Would, in the Director's opinion, avoid the likelihood of jeopardizing the continued existence of the listed species and/or avoid the likelihood of destroying or adversely modifying critical habitat.
   Reasonable and prudent alternatives can vary from slight project modifications to extensive redesign or relocation of the project. Costs associated with implementing a reasonable and prudent alternative are similarly variable.
   Regulations at 50 CFR 402.16 require Federal agencies to reinitiate consultation on previously reviewed actions in instances where we have listed a new species or subsequently designated critical habitat that may be affected and the Federal agency has retained discretionary involvement or control over the action (or the agency's discretionary involvement or control is authorized by law). Consequently, Federal agencies sometimes may need to request reinitiation of consultation with us on actions for which formal consultation has been completed, if those actions with discretionary involvement or control may affect subsequently listed species or designated critical habitat.
Application of the "Adverse Modification" Standard
   The key factor related to the adverse modification determination is whether, with implementation of the proposed Federal action, the affected critical habitat would continue to serve its intended conservation role for the species. Activities that may destroy or adversely modify critical habitat are those that alter the physical or biological features to an extent that appreciably reduces the conservation value of critical habitat for the Jemez Mountains salamander. As discussed above, the role of critical habitat is to support life-history needs of the species and provide for the conservation of the species.
   Section 4(b)(8) of the Act requires us to briefly evaluate and describe, in any proposed or final regulation that designates critical habitat, activities involving a Federal action that may destroy or adversely modify such habitat, or that may be affected by such designation.
   Activities that may affect critical habitat, when carried out, funded, or authorized by a Federal agency, should result in consultation for the Jemez Mountains salamander. These activities include, but are not limited to:
   (1) Actions that would disturb salamander habitat by warming and drying. Such activities could include, but are not limited to, landscape restoration projects (e.g., forest thinning and manipulation); prescribed burns; wildland fire use; wildland-urban-interface projects (forest management at the boundary of forested areas and urban areas); forest silvicultural practices (including salvage logging); or other forest management or landscape-altering activities that reduce canopy cover, or warm and dry habitat. These activities could reduce the quality of salamander habitat or reduce the ability of the salamander to carry out normal behavior and physiological functions, which are tightly tied to moist cool microhabitats. Additionally, these actions could also reduce available high-moisture retreats, which could increase the amount of time necessary to regulate body water for physiological function and thus reduce the amount of time available for foraging and finding a mate, ultimately reducing fecundity.
   (2) Actions that reduce the availability of the ground surface within forested areas containing downed logs that are greater than 10 in (0.25 m) in diameter and of any stage of decomposition; or removal of large-diameter trees (especially Douglas fir) that would otherwise become future high quality cover. Such activities could include, but are not limited to, the activities listed in (1), above. Aboveground cover objects within the forest provide high-moisture retreats relative to surrounding habitat and offer opportunities to regulate body water and influence the salamander's capacity to forage and reproduce.
   (3) Actions that would compact or disturb the soil or otherwise interfere with the capacity of salamanders to move between subterranean habitat and aboveground habitat. Such activities could include, but are not limited to, use of heavy equipment, road construction, and pipeline installation.
   (4) Actions that spread disease into salamander habitat. Such activities could include water drops (i.e., picking up surface water contaminated with aquatic amphibian pathogens (e.g., Batrachochytrium dendrobatidis (Bd)) and dropping it in forested habitat). While we do not know the susceptibility of amphibian pathogens on the Jemez Mountains salamander, some pathogens (e.g., Bd) have caused many other amphibian species extinctions and declines and could potentially threaten the Jemez Mountains salamander.
   (5) Actions that contaminate forested habitats with chemicals. Such activities could include aerial drop of chemicals such as fire retardants or insecticides. Amphibians in general are sensitive to chemicals with which they come in contact because they use their skin for breathing and other physiological functions. We would need to consult to identify if the particular chemicals proposed for use in the action impacted the species.
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 geographic areas owned or controlled by the
Exclusions
Application of 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 based on economic impacts, impacts on national security, or any other relevant impacts if she determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the 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. In making that determination, the statute on its face, as well as the legislative history, are clear that the Secretary has broad discretion regarding which factor(s) to use and how much weight to give to any factor.
Exclusions Based on Economic Impacts
   Under section 4(b)(2) of the Act, we consider the economic impacts of specifying any particular area as critical habitat. In order to consider economic impacts, we prepared a draft economic analysis of the proposed critical habitat designation and related factors (IEc 2013). The draft analysis, dated
   The intent of the final economic analysis (FEA) is to quantify the economic impacts of all potential conservation efforts for the Jemez Mountains salamander; some of these costs will likely be incurred regardless of whether we designate critical habitat (baseline). The economic impact of the final critical habitat designation is analyzed by comparing scenarios both "with critical habitat" and "without critical habitat." The "without critical habitat" scenario represents the baseline for the analysis, considering protections already in place for the species (e.g., under the Federal listing and other Federal, State, and local regulations). The baseline, therefore, represents the costs incurred regardless of whether critical habitat is designated. The "with critical habitat" scenario describes the incremental impacts associated specifically with the designation of critical habitat for the species. The incremental conservation efforts and associated impacts are those not expected to occur absent the designation of critical habitat for the species. In other words, the incremental costs are those attributable solely to the designation of critical habitat above and beyond the baseline costs; these are the costs we consider in the final designation of critical habitat. The analysis looks retrospectively at baseline impacts incurred since the species was listed, and forecasts both baseline and incremental impacts likely to occur with the designation of critical habitat.
   The FEA also addresses how potential economic impacts are likely to be distributed, including an assessment of any local or regional impacts of habitat conservation and the potential effects of conservation activities on government agencies, private businesses, and individuals. The FEA measures lost economic efficiency associated with residential and commercial development and public projects and activities, such as economic impacts on water management and transportation projects, Federal lands, small entities, and the energy industry. Decision-makers can use this information to assess whether the effects of the designation might unduly burden a particular group or economic sector. Finally, the FEA considers costs that may occur in the 20 years following the designation of critical habitat, which was determined to be the appropriate period for analysis because limited planning information was available for most activities to forecast activity levels for projects beyond a 20-year timeframe. The FEA quantifies economic impacts of Jemez Mountains salamander conservation efforts associated with the following categories of activity: severe wildland fire, fire management, other Federal land management, livestock grazing, and transportation. No impacts are forecast for private development, because no projects with a Federal nexus were identified within the study area.
   Key findings of the FEA include: total present value baseline costs are approximately
   Our economic analysis did not identify any disproportionate costs that are likely to result from the designation. Consequently, the Secretary is not exerting his discretion to exclude any areas from this designation of critical habitat for the Jemez Mountains salamander based on economic impacts.
   A copy of the FEA with supporting documents may be obtained by contacting the
Exclusions Based on National Security Impacts
   Under section 4(b)(2) of the Act, we consider whether there are lands owned or managed by the
Exclusions Based on Other Relevant Impacts
   Under section 4(b)(2) of the Act, we consider any other relevant impacts, in addition to economic impacts and impacts on national security. We consider a number of factors, including whether the landowners have developed any HCPs or other management plans for the area, or whether there are conservation partnerships that would be encouraged by designation of, or exclusion from, critical habitat. In addition, we look at any tribal issues, and consider the government-to-government relationship of
   In preparing this final rule, we have determined that there are currently no HCPs or other management plans for the Jemez Mountains salamander, and the final designation does not include any tribal lands or trust resources. We anticipate no impact on tribal lands, partnerships, or HCPs from this critical habitat designation. We also considered impacts on private lands, but we do not predict any impacts to designated critical habitat, over and above those related to jeopardy consultation. Further, we do not anticipate restricting any fire suppression or forest restoration. Accordingly, the Secretary is not exercising her discretion to exclude any areas from this final designation based on other relevant impacts.
Required Determinations
Regulatory Planning and Review (Executive Orders 12866 and 13563)
   Executive Order 12866 provides that the
   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.
   Under the Regulatory Flexibility Act (RFA; 5 U.S.C.
   According to the
   To determine if the rule could significantly affect a substantial number of small entities, we consider the number of small entities affected within particular types of economic activities such as fire management, private development, transportation, and livestock grazing. We apply the "substantial number" test individually to each industry to determine if certification is appropriate. However, the SBREFA does not explicitly define "substantial number" or "significant economic impact." Consequently, to assess whether a "substantial number" of small entities is affected by this designation, this analysis considers the relative number of small entities likely to be impacted in an area. In some circumstances, especially with critical habitat designations of limited extent, we may aggregate across all industries and consider whether the total number of small entities affected is substantial. In estimating the number of small entities potentially affected, we also consider whether their activities have any Federal involvement.
   Designation of critical habitat will only affect activities that have a Federal involvement; designation of critical habitat only affects activities conducted, funded, permitted, or authorized by Federal agencies. In areas where the Jemez Mountains salamander is present, Federal agencies already are required to consult with us under section 7 of the Act on activities they fund, permit, or implement that may affect the species. Some kinds of activities are unlikely to have any Federal involvement and so will not be affected by critical habitat designation. In areas where the species is present, Federal agencies already are required to consult with us under section 7 of the Act on activities they authorize, fund, or carry out that may affect the Jemez Mountains salamander. Federal agencies also must consult with us if their activities may affect critical habitat. Designation of critical habitat, therefore, could result in an additional economic impact on small entities due to the requirement to reinitiate consultation for ongoing Federal activities (see Application of the "Adverse Modification" Standard section).
   In our final economic analysis of the critical habitat designation, we evaluated the potential economic effects on small business entities resulting from conservation actions related to the listing of the Jemez Mountains salamander and the designation of critical habitat. The designation of critical habitat for the Jemez Mountains salamander is unlikely to directly affect any small entities. As described in the main text of the FEA, 97 percent of land in the designation is federally owned. Anticipated incremental impacts in critical habitat are primarily related to 37 formal consultations and 45 informal consultations on fire management and other Federal land management activities (comprising approximately 99 percent of the annual anticipated incremental costs of the designation). The remaining forecast impacts are anticipated to be conducted for road and highway maintenance projects. Little to no impact to third parties is expected associated with these activities. For this reason, this analysis finds little to no impacts to small entities as a result of critical habitat designation for the salamander.
   In summary, we considered whether this designation will result in a significant economic effect on a substantial number of small entities. Based on the above reasoning and currently available information, we concluded that this rule will not result in a significant economic impact on a substantial number of small entities. Therefore, we are certifying that the designation of critical habitat for the Jemez Mountains salamander 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. OMB has provided guidance for implementing this Executive Order that outlines nine outcomes that may constitute "a significant adverse effect" when compared to not taking the regulatory action under consideration. The economic analysis finds that none of these criteria are relevant to this analysis. Thus, based on information in the economic analysis, energy-related impacts associated with the Jemez Mountains salamander conservation activities within critical habitat are not expected. As such, the designation of critical habitat is not expected to significantly affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action, and no Statement of Energy Effects is required.
Unfunded Mandates Reform Act (2 U.S.C.
   In accordance with the Unfunded Mandates Reform Act (2 U.S.C.
   (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
   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 it will not produce a Federal mandate of
Takings--Executive Order 12630
   In accordance with Executive Order 12630 (Government Actions and Interference with Constitutionally Protected Private Property Rights), we have analyzed the potential takings implications of designating critical habitat for Jemez Mountains salamander in a takings implications assessment. As discussed above, the designation of critical habitat affects only Federal actions. Although private parties that receive Federal funding, assistance, or require approval or authorization from a Federal agency for an action may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. The FEA found that this designation will not affect a substantial number of small entities, because 97 percent of land in the designation is federally owned. Further, based on information contained in the FEA and described within this document, it is not likely that economic impacts to a property owner will be of a sufficient magnitude to support a takings action. The takings implications assessment concludes that this designation of critical habitat for the Jemez Mountains salamander does not pose significant takings implications for lands within or affected by the designation.
Federalism--Executive Order 13132
   In accordance with Executive Order 13132 (Federalism), this rule does not have significant Federalism effects. A federalism impact summary statement is not required. In keeping with
   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) 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
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
   This rule does not contain any new collections of information that require approval by OMB under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). This rule will not impose recordkeeping or reporting requirements on State or local governments, individuals, businesses, or organizations. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of 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
Government-to-Government Relationship With Tribes
   In accordance with the President's memorandum of
   However, this critical habitat designation includes lands within the
References Cited
   A complete list of all references cited is available on the Internet at http://www.fws.gov/southwest/es/NewMexico/index.cfm, at http://www.regulations.gov at Docket No. FWS-R2-ES-2013-0005, and upon request from the
Authors
   The primary authors of this rulemaking are the staff members of the
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--[AMENDED]
   1. The authority citation for part 17 continues to read as follows:
   Authority: 16 U.S.C. 1361-1407; 1531-1544; 4201-4245, unless otherwise noted.
   2. Amend
* * * * *
   (h) * * *
Species Historic range Vertebrate population where endangered or threatened Common name Scientific name * * * * * * * Amphibians * * * * * * * Salamander, Jemez Plethodon U.S. (NM) Entire Mountains neomexicanus * * * * * * *
Species Status When listed Critical Special rules habitat Common name * * * * * * * Amphibians * * * * * * * Salamander, Jemez E 819 17.95(d) NA Mountains * * * * * * *
   3. In
* * * * *
   (d) Amphibians.
* * * * *
Jemez Mountains Salamander (Plethodon neomexicanus)
   (1) Critical habitat units are depicted for
   (2) Within these areas, the primary constituent elements of the physical or biological features essential to the conservation of the Jemez Mountains salamander consist of four components:
   (i) Moderate to high tree canopy cover, typically 50 to 100 percent canopy closure, that provides shade and maintains moisture and high relative humidity at the ground surface, and:
   (A) Consists of the following tree species alone or in any combination: Douglas fir (Pseudotsuga menziesii); blue spruce (Picea pungens); Engelman spruce (Picea engelmannii); white fir (Abies concolor); limber pine (Pinus flexilis); Ponderosa pine (Pinus ponderosa); and aspen (Populus tremuloides); and
   (B) Has an understory that predominantly comprises:
   (ii) Elevations from 6,988 to 11,254 feet (2,130 to 3,430 meters).
   (iii) Ground surface in forest areas with:
   (A) Moderate to high volumes of large fallen trees and other woody debris, especially coniferous logs at least 10 inches (25 centimeters) in diameter, particularly Douglas fir, which are in contact with the soil in varying stages of decay from freshly fallen to nearly fully decomposed; or
   (B) Structural features, such as rocks, bark, and moss mats, that provide the species with food and cover.
   (iv) Underground habitat in forest or meadow areas containing interstitial spaces provided by:
   (A) Igneous rock with fractures or loose rocky soils;
   (B) Rotted tree root channels; or
   (C) Burrows of rodents or large invertebrates.
   (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
   (4) Critical habitat map units. Data layers defining map units were created using digital elevation models, GAP landcover data, salamander observation data, salamander habitat suitability models, and were then mapped using the
   (5) Unit 1:
See Illustration in Original Document.
   (6) Unit 2:
* * * * *
   Dated:
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2013-27736 Filed 11-19-13;
BILLING CODE 4310-55-P
| Copyright: | (c) 2013 Federal Information & News Dispatch, Inc. |
| Wordcount: | 21337 |
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