# Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Nine Bexar County, TX, Invertebrates

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/fr%3A2012-2195

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** February 14, 2012
- **Citation:** 77 FR 8450

## Text

DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R2-ES-2010-0091; 4500030114]
RIN 1018-AX11
Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Nine Bexar County, TX, Invertebrates

AGENCY:

Fish and Wildlife Service, Interior.

ACTION:

Final rule.

SUMMARY:

We, the U.S. Fish and Wildlife Service (Service), designate critical habitat for
Rhadine exilis
(ground beetle, no common name),
Rhadine infernalis
(ground beetle, no common name), Helotes mold beetle (
Batrisodes venyivi
), Cokendolpher Cave harvestman (
Texella cokendolpheri
), Robber Baron Cave meshweaver (
Cicurina baronia
), Madla Cave meshweaver (
Cicurina madla
), Braken Bat Cave meshweaver (
Cicurina venii
), Government Canyon Bat Cave meshweaver (
Cicurina vespera
), and Government Canyon Bat Cave spider (
Neoleptoneta microps
) under the Endangered Species Act of 1973, as amended (Act). These species are collectively known as the nine Bexar County invertebrates. In total, approximately 4,216 acres (ac) (1,706 hectares (ha)) in Bexar County, Texas, fall within the boundaries of the critical habitat designation. Also, we announce a 12-month finding on a petition to revise critical habitat designation by removing unit 13 from designation under the Act. After review of all available scientific and commercial information, we find that the petitioned action is not warranted at this time.

DATES:

This rule becomes effective on March 15, 2012.

ADDRESSES:

This final rule and the associated final economic analysis are available on the Internet at
http://www.regulations.gov.
Comments and materials 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 U.S. Fish and Wildlife Service, Austin Ecological Services Field Office, 10711 Burnet Road, Suite 200, Austin, TX 78758; telephone 512-450-0057; facsimile 512-490-0974.

FOR FURTHER INFORMATION CONTACT:

Adam Zerrenner, Field Supervisor, U.S. Fish and Wildlife Service, Austin Ecological Services Field Office, 10711 Burnet Road, Suite 200, Austin, TX 78758; telephone 512-490-0057 x248; facsimile 512-490-0974. If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Background

It is our intent to discuss in this final rule only those topics directly relevant to the development and designation of critical habitat for the
Rhadine exilis
(ground beetle, no common name),
Rhadine infernalis
(ground beetle, no common name), Helotes mold beetle, Cokendolpher Cave harvestman, Robber Baron Cave meshweaver, Madla Cave meshweaver, Braken Bat Cave meshweaver, Government Canyon Bat Cave meshweaver, and Government Canyon Bat Cave spider under the Act (16 U.S.C. 1531
et seq.
). For more information on the biology and ecology of the nine Bexar County invertebrates, refer to the final listing rule published in the
Federal Register
on December 26, 2000 (65 FR 81419), and to our September 2011 final recovery plan (Service 2011), which is available from the Austin Ecological Services Field Office (see
ADDRESSES
section). For information on the nine Bexar County invertebrates' critical habitat, refer to the proposed rule to designate critical habitat for the nine Bexar County invertebrates published in the
Federal Register
on August 27, 2002 (67 FR 55063), the final critical habitat designation published April 8, 2003 (68 FR 17155), and the proposed revised critical habitat designation published on February 22, 2011 (76 FR 9872). Information on the associated draft economic analysis for the February 22, 2011 (76 FR 9872), proposed rule to designate revised critical habitat was published in the
Federal Register
on August 2, 2011 (76 FR 46234).

We use the terms karst fauna regions (KFRs), karst zones, and karst fauna areas (KFAs) in this document. The term “karst” refers to a subterranean terrain that is formed by the slow dissolution of calcium carbonate from limestone bedrock by mildly acidic groundwater. This process creates numerous cave openings, cracks, fissures, fractures, sinkholes, and bedrock resembling Swiss cheese.

Veni (1994, pp. 68-76) delineated six KFRs within Bexar County: Stone Oak, University of Texas at San Antonio (UTSA), Helotes, Government Canyon, Culebra Anticline, and Alamo Heights (Figure 1). These KFRs are bounded by geological or geographical features that may represent obstructions to the movement (on a geologic timescale) of troglobites (small, cave-dwelling animals that have adapted to their dark surroundings), which has resulted in the present-day distribution of endemic (restricted to a given region) karst invertebrates in the Bexar County area. The basis for these divisions is the lack of continuity between caves, which may form complete barriers or significant restrictions to migration of troglobites over modern or geologic timescales. These discontinuities result from cave development and the geologic history of the area.

BILLING CODE 4310-55-P

ER14FE12.000

BILLING CODE 4310-55-C
The KFRs were analyzed by Veni (1994, pp. 72-73) using the then current range of 19 troglobitic species, including the 9 Bexar County invertebrates. The KFRs are important because they are used to establish recovery criteria for individual species in the Bexar County Karst Invertebrate Recovery Plan (Service 2011, pp. 17-26). To meet those criteria, specified numbers of preserves of a given quality must be protected within each KFR in which they occur.

Also, the six KFRs were delineated by Veni (2003, pp. 10-18) into five karst zones that reflect the likelihood of finding a karst feature that will provide habitat for the endangered invertebrates, based on geology, distribution of known caves, distribution of cave fauna, and primary factors that determine the presence, size, shape, and extent of

caves with respect to cave development. As described by Veni (2003, pp. 10-18), these five zones (Figure 1) are defined as:

Zone 1: Areas known to contain one or more of the nine Bexar County invertebrates (areas where species are present).

Zone 2: Areas having a high probability of suitable habitat for the invertebrates (areas that may contain one or more invertebrates, but have not been fully surveyed).

Zone 3: Areas that probably do not contain the invertebrates (because there is very little suitable karst habitat).

Zone 4: Areas that require further research, but are generally equivalent to Zone 3, although they may include sections that could be classified as Zone 2 or 5 (areas where less is known about the karst structure than with Zone 3).

Zone 5: Areas that do not contain the nine Bexar County invertebrates (areas with units of rock that do not contain karst habitat).

A karst fauna area (Service 1994, p. 76) is a geographic area known to support one or more locations of an endangered species. A KFA is distinct in that it acts as a system that is separated from other KFAs by geologic and hydrologic features and/or processes or distances that create barriers to movement of water, contaminants, and troglobitic fauna.

Previous Federal Actions

We published a proposed rule to list the nine Bexar County karst invertebrate species as endangered in the
Federal Register
on December 30, 1998 (63 FR 71855). On November 1, 2000, the Center for Biological Diversity filed a complaint against the Service alleging that we exceeded our 1-year obligation to publish a final listing rule and make a determination whether to designate critical habitat for the nine Bexar County karst invertebrates. We published a final listing rule on December 26, 2000 (65 FR 81419). In the final listing rule, we determined that critical habitat designation was prudent. On August 27, 2002, we proposed that 25 units encompassing approximately 9,516 ac (3,857 ha) in Bexar County, Texas, be designated as critical habitat for the nine karst invertebrates (67 FR 55063). The final critical habitat rule, designating approximately 1,063 ac (431 ha) in 22 units, was published on April 8, 2003 (68 FR 17155).

On July 17, 2007, the Center for Biological Diversity, Citizens Alliance for Smart Expansion, and Aquifer Guardians in Urban Areas provided us with a 60-day notice of intent to sue on the final critical habitat rule. On January 14, 2009, the plaintiffs (
CBD
v.
FWS,
case number 1:09-cv-00031-LY) filed suit in Federal Court (Western District of Texas), alleging that the Service failed to use the best available science, and incorrectly made exclusions according to sections 3(5)(A) and 4(b)(2) of the Act. On December 18, 2009, the parties filed a settlement agreement where we agreed to submit a revised proposed critical habitat determination for publication in the
Federal Register
on or before February 7, 2011, and a final revised determination by February 7, 2012. The proposed rule was submitted to the
Federal Register
prior to the February 7, 2011, deadline, and it published on February 22, 2011 (76 FR 9872). On August 2, 2011 (76 FR 46234), we reopened the comment period and announced the availability of a draft economic analysis, an amended required determinations section of the proposal, and a public hearing to allow. This final rule is published in accordance with the settlement agreement.

12-Month Finding

On July 8, 2010, we received a petition from Capital Foresight Limited Partnership to revise designated critical habitat for
Rhadine exilis
by removing Unit 13. The petitioner alleges that the original specimens collected from Black Cat Cave were never positively identified as
R. exilis.
They stated that another species of
Rhadine
with a slender body form similar to
R. exilis
occurs in a cave a short distance from Black Cat Cave, which is likely connected by mesocaverns (small, human-inaccessible, interstitial spaces in karst limestone), and that two species of
Rhadine
with similar body forms have never been documented to occur in the same location. In addition, the petitioner asserted that drinking water is leaking into Black Cat Cave and that the habitat has been highly degraded by the Bulverde Road, rending the area no longer suitable for conservation of the species. However, information in our files at the time we received the petition indicated that a species expert had identified the original specimen collected from Black Cat Cave as
R. exilis
(T. Barr, pers. comm., 2010).

In our February 22, 2011 proposed rule (76 FR 9872), we issued a 90-day finding that the Capital Foresight Limited Partnership presented substantial information indicating that revising critical habitat for
Rhadine exilis
may be warranted. We initiated a review to determine if revising critical habitat for
R. exilis
is warranted. During that review, we received evidence that the cave entrance had been filled with dirt and rocks, and a concrete structure had been placed over the natural opening.

In addition, the species expert examined the original specimens and stated, “My preliminary conclusions are that the Black Cat
Rhadine
are distinct from
Rhadine exilis
though closely related, but I want to spend about six hours or so on a final evaluation” (T. Barr, pers. comm., 2011). Unfortunately, T. Barr died in May 2011, and his collection was donated to the Carnegie Museum of Natural History. The Texas Memorial Museum is working with the Carnegie Museum to locate, obtain, and examine the specimens from Black Cat Cave, but this task has not been accomplished to date.

The preliminary determination by the species expert (T. Barr) that this was not
Rhadine exilis
casts some additional doubt on whether the unit contains, or ever contained, the species. However, because the specimens are not currently available for examination, we give deference to the original identification of the species as
Rhadine exilis
by the species expert, T. Barr.

It has been 24 years since this
Rhadine
has been found in the cave, and nine surveys conducted since 2008 have not confirmed its presence. In addition, the surface habitat has been further degraded since the original specimens were collected. However, because of the cryptic nature of the karst invertebrates, it often takes intensive survey efforts to document a species' presence within a cave (Krejca and Weckerly 2007, p. 286), and the lack of positive survey results does not indicate with reasonable certainty that
R. exilis
is currently absent in Black Cat Cave. In addition, many of the surveys were conducted during either extreme drought or during temperature extremes, when karst species recede into mesocaverns that have a more favorable microclimate. Although the surface habitat has been degraded, Black Cat Cave and the surrounding mesocaverns still contain the physical or biological features essential to the conservation of the species. Even though recent survey efforts have failed to detect the
R. exilis
in Black Cat Cave, and the surface habitat has been degraded, we have determined that Unit 13 still meets the definition of critical habitat, as defined in section 3(5)(A)(i) of the Act, by being occupied at the time of listing, and currently containing the physical or biological features essential to the conservation of the species, which may require special management considerations or protection. In addition, the karst habitat within Unit

13 is needed to conserve
R. exilis
in the Stone Oak KFR.

At this time, we find that revising critical habitat by removing Unit 13 is not warranted. It is therefore included in this final designation. However, if at some future time further taxonomic studies reveal that the specimens collected in Black Cat Cave were not
Rhadine exilis,
or more intensive survey efforts do not reveal the species' presence, then we will consider revising this critical habitat designation. This document includes our 12-month finding on the petition, as well as our final designation of critical habitat for the nine Bexar County invertebrates, as provided in section 4(b)(3)(B) of the Act.

Summary of Comments and Recommendations

We requested written comments from the public on the proposed designation of critical habitat for the nine Bexar County invertebrates during two comment periods. The first comment period associated with the publication of the proposed rule (76 FR 9872) opened on February 22, 2011, and closed on April 25, 2011. We also requested comments on the proposed critical habitat designation and associated draft economic analysis during a comment period that opened August 2, 2011, and closed on September 1, 2011 (76 FR 46234). We did receive three requests for a public hearing. Therefore, we held a public hearing on August 17, 2011. We also contacted appropriate Federal, State, and local agencies; scientific organizations; and other interested parties and invited them to comment on the proposed rule and draft economic analysis during these comment periods.

During the first comment period, we received 35 comment letters directly addressing the proposed critical habitat designation. During the second comment period, we received 27 comment letters addressing the proposed critical habitat designation or the draft economic analysis. During the August 17, 2011, public hearing, one individual made comments on the designation of critical habitat for the nine Bexar County invertebrates. All substantive information provided during comment periods has either been incorporated directly into this final determination or addressed below. Comments we received are grouped into seven general issues specifically relating to the proposed critical habitat designation for the nine Bexar County invertebrates, and are addressed in the following summary and incorporated into the final rule as appropriate.

Peer Review

In accordance with our peer review policy published on July 1, 1994 (59 FR 34270), we solicited expert opinions from eight knowledgeable individuals with scientific expertise that included familiarity with the nine Bexar County invertebrates, the geographic region in which the species occur, and conservation biology principles. We received responses from four of the peer reviewers.

We reviewed all comments received from the peer reviewers for substantive issues and new information regarding critical habitat for the nine Bexar County invertebrates. The peer reviewers generally concurred with our methods and conclusions and provided additional information, clarifications, and suggestions to improve the final critical habitat rule. Peer reviewer comments are addressed in the following summary and incorporated into the final rule as appropriate.

Peer Reviewer Comments

(1)
Comment:
One peer reviewer questioned whether tree roots were present in the Bexar County caves in critical habitat and therefore their nutrient importance.

Our Response:
Tree roots are present in many of the Bexar County caves in designated critical habitat, and we believe they are important nutrient sources for the invertebrates.

(2)
Comment:
One peer reviewer stated that there should be more discussion of the potential impacts of global warming and the predicted increased drying expected in Texas (Banner
et al.
2010). Another commented that loss of habitat or reduction of habitat quality are likely to be more immediate threats to the nine endangered karst invertebrates than climate change effects.

Our Response:
We agree and added information to emphasize the threats of climate change on the species and the immediacy of habitat destruction (see section on
Special Management Considerations or Protection
).

(3)
Comment:
One peer reviewer stated that four of the listed invertebrates are known from one or very few specimens from a single or very few locations and are likely to suffer from the negative effects of small population sizes and lack of genetic diversity. The reviewer questions whether significant effort or expense should be directed to their protection and monitoring, except where their locations overlap with other species.

Our Response:
While we agree that these species are rare and highly vulnerable, the Act does not provide for flexibility regarding whether or not they receive the protections of critical habitat.

(4)
Comment:
Two peer reviewers commented that monitoring plans should be added as part of the final critical habitat.

Our Response:
While monitoring is important, it is a component of the recovery plan and is outside of the scope of critical habitat determination under the Act.

(5)
Comment:
One peer reviewer said that we should be clear in the document that the 100-meter (m) distance to protect cave crickets and other invertebrates from red imported fire ant (
Solenopsis invicta
) (fire ant) foraging comes from a study by Suarez
et al.
(1998) on Argentine ants in California.

Our Response:
We clarified this point, and based on this and other comments, removed the 100-m distance.

Comments From the State

Section 4(i) of the Act states, “the Secretary shall submit to the State agency a written justification for his failure to adopt regulations consistent with the agency's comments or petition.” Comments received from the State regarding the proposal to designate critical habitat for the nine Bexar County invertebrates are addressed below.

(6)
Comment:
The proposed rule may have substantial impact on the State's transportation system in Bexar County and will increase costs and complexity of consultations. The State requested that the Service not designate critical habitat in Texas Department of Transportation (TxDOT) right of way (ROW).

Our Response:
Because of changes in the criteria for delineation of critical habitat units, some of the total area in TxDOT ROW has been reduced. The impact of designation on transportation projects was analyzed in the draft and final economic analyses, and based on the estimated costs in that analysis, we did not find disproportionate economic impacts of designation.

(7)
Comment:
One State agency (TxDOT) and several other individuals commented that the use of the 0.3-mile (mi) distance for the theoretical mesocavern boundary is not supported by the geologic or genetic studies we cited.

Our Response:
Based on these and other comments, and our own internal analysis of the issue, we removed the 0.3-mi (0.5-kilometer (km)) distance from this final rule. Please see the Summary of Changes from Proposed Rule section.

(8)
Comment:
One State agency (TxDOT) commented that a review of additional cave data for proposed Unit 16 indicates that the hydrological component of the primary constituent element (PCE) does not occur within the area of concern under and east of Loop 1604 and should not be included in designated critical habitat. The commenter also suggested that maintaining the intact surface communities in the undeveloped area to the west of Loop 1604 is a higher conservation priority and more likely to benefit the species in the cave.

Our Response:
Based on these comments and other information provided, we are not including this area in critical habitat, because it does not meet the definition of critical habitat for any of the nine Bexar County invertebrates.

(9)
Comment:
One State agency (TxDOT) and several other individuals commented that the PCEs are too general and that critical habitat should contain more than one PCE.

Our Response:
Based on this and other comments and information provided, we modified our PCEs and our criteria for delineation so that both PCEs needed to be present a unit in order to meet the definition of critical habitat.

(10)
Comment:
One State agency (TxDOT) and several other individuals commented that the derivation of the area of native vegetation required and the buffer against edge effects were not based on the best available science.

Our Response:
We believe the derivation was based on the best available science for the vegetation requirements we identified in the proposed rule. However, while native vegetation is beneficial to promote the long-term viability of an area, the native vegetation species we identified in the proposed rule may not be necessary to the conservation of the nine Bexar County invertebrates. Based on these and other comments, we revised the area needed around each occupied cave entrance to focus on the optimal size necessary to provide long-term viability for the listed species. We dropped the focus on deriving the area based on native plant species and instead relied on the expert opinion of the Bexar County Karst Invertebrates Recovery Team (Service 2008, pp. B-1-B-5) for the size of area needed, which is 100 ac (40 ha) to meet conservation objectives.

(11)
Comment:
The State Comptroller stated that the proposed critical habitat could have substantial impacts to this region of the State and add additional costs to taxpayers without sufficient scientific basis. The Service should delay all action in order to re-examine this proposal and the available research.

Our Response:
We have addressed the economic impacts of designation to all parties through an economic analysis and have determined that there will not be significant economic impacts due to this designation. In addition, we carefully considered and addressed all comments submitted. As a result of these comments and our analysis of the issues, this final designation is smaller in area, and thus smaller in the economic effects associated with the areas originally proposed. In regards to delaying our action to designate critical habitat, we are not able to delay because we are held to a February 7, 2012, deadline to submit a final rule to the
Federal Register
according to a court-ordered settlement agreement.

Public Comments

General Comments

Issue 1: Extent of mesocaverns to be included.

(12)
Comment:
Several commenters stated that site-specific geologic information limits or precludes the use of the 0.3-mi (0.5-km) distance as a measure of the distance that mesocaverns are likely to be connected to occupied features in several proposed units.

Our Response:
We agree that there may be site-specific issues involved in some units. Based on this and other comments, we do not use the specific 0.3-mi (0.5-km) as a criterion for delineating specific mesocavern distance in this final critical habitat rule.

(13)
Comment:
The manner in which White (2006) is cited in the proposed rule seems to indicate that the author determined that this distance was appropriate for use in a critical habitat context and that it can be appropriately applied to sites other than those that were studied in detail. This is misleading.

Our Response:
We have revised the wording in this final rule to clarify this issue.

(14)
Comment:
White's (2006) research was not intended to yield a buffer such as the 0.3-mi (0.5-km) distance. The distance was derived by the Service indirectly from the results of that research.

Our Response:
The Service acknowledges that the 0.3-mi (0.5-km) distance was based on White's research, and that his research did not specifically suggest using this distance in this way. See our responses to comments (12) and (13), above.

(15)
Comment:
The Service's 0.3-mi (0.5-km) distance was derived from a site located within the Edwards karst, which is highly modified by the tremendous volume of fresh water that formed the Edwards Aquifer and is quite different from geology and hydrologic conditions in many other proposed units in Bexar County. A two-dimensional buffer cannot be applied to a three-dimensional landscape without misrepresenting the potential for gene flow through the karst. This is especially true in the older, more eroded karst landscapes of the Helotes area where many small islands of karst occur on hilltops. The distribution of genetic diversity was found to be controlled by geologic structure (primarily by faults), which imposes a linear, not radial, geometry on available habitat. Ignoring site-specific geologic structure nearly guarantees that a blanket radial buffer incorrectly represents the spatial distribution of habitat.

Our Response:
We acknowledge there are problems with applying the 0.3-mi (0.5-km) distance to all units, and, ideally, the distance would be based on site-specific data or information. We have removed the 0.3-mi (0.5-km) distance from this final rule. See our responses to comments (12), (13), and (14), above.

(16)
Comment:
We believe the Service is misapplying the conclusions in White (2006). If the species did travel 0.3-mi (0.5-km) through connected mesocaverns, the genetics of
Cicurina madla
would be identical in Robbers Cave and Hills and Dales Pit.

(17)
Comment:
Even with identical signatures in separate caves, it is not possible to determine when that contact happened because it is not known how long it would take two isolated populations to become genetically different.

(18)
Comment:
The conclusion drawn by White (2006) is that, in general, gene flow is not occurring between troglobite populations and has not likely occurred in recent evolutionary timescale.

Our Response to Comments (16), (17), and (18):
We agree that similar genetic signatures do not demonstrate positively that the Madla Cave meshweavers in the two caves we cited are not identical. We acknowledge the limitations on the use of data from Hedin and Paquin (2004, p. 3243) for this purpose. The question of whether identical signatures demonstrate current connectivity is dependent on the specific techniques used, sample sizes, and whether the genes being examined are slowly or quickly evolving genes. We clarified these points in, and removed any specific distance for mesocavern connectivity from, this final rule.

(19)
Comment:
Several commenters stated that we inappropriately used justification of genetic similarity of
Cicurina
in two caves to justify use of the 0.3-mi (0.5-km) mesocavern distance.

Our Response:
We stated in our proposed rule that White (2006, pp. 97-99) indicated the species were similar, not identical, and we used this only as partially supporting information. Based on this and other comments, we removed the mesocavern distance from this final rule.

(20)
Comment:
Occurrence of many caves with the same or similar suites of species beyond the 0.3-mi (0.5-km) distance suggests that using the mesocavernous distances at Camp Bullis is in fact more representative of the distances of mesocavernous connectivity and perhaps conservative at that. I strongly suggest reevaluating and redrawing the proposed critical habitat areas with distances no less than those demonstrated at Camp Bullis.

Our Response:
While the mesocaverns may be connected to the 0.3-mi (0.5-km) distance in some units, we are unable to find genetic information that is adequate to determine maximum distance over which population-level genetic exchange may occur. In the absence of that information, and due to differences in site-specific geological influences on connectivity, we decided not to use the 0.3-mi (0.5-km) distance as a criterion for delineation.

Issue 2: Amount and type of vegetation needed.

(21)
Comment:
For critical habitat areas that contain healthy native vegetation, a circular area of approximately 40 ac (16 ha) in size (assuming one cave per preserve) would incorporate the biological elements necessary to provide nutrient input into the caves and protect the surface component of the karst ecosystem from edge effects and fire ant infestation.

Our Response:
We believe an area of 100 ac (40 ha) provides a higher probability of species survival and conservation. We base this on the expert opinion of the Bexar County Karst Invertebrates Recovery Team (Service 2008, pp. B-1-B-5), and on the size of area needed to meet certain conservation objectives. The area needed is based in part on the fact that we believe the karst invertebrates occupy a larger area than the caves, may be using mesocaverns more than caves, and may spend the majority of their time in such retreats, only leaving the mesocaverns during temporary forays into the larger cave passages to forage (Howarth 1987, p. 377). We modified the justification for the area needed to provide for the conservation of the species, focusing on overall need for nutrient input, moisture, and mesocaverns.

(22)
Comment:
Several commenters stated that the 10-ac (4-ha) grassland component was not present in some units and should not be included as a component for all units.

Our Response:
We modified the justification for the area needed to provide for the conservation of the species, focusing on overall need for nutrient input, moisture, and mesocaverns, rather than on specific vegetation components.

(23)
Comment:
Comments on several units stated that site-specific plant survey data should be utilized when available. In the absence of this data, commenters suggest an area of roughly 33 ac (13 ha) would be required to include 15 to 20 species of the Edwards plateau at a population size of 80 individuals plus a distance of 66 feet (ft) (20 meters (m)) to protect against edge effects.

Our Response:
We revised the criteria for designating critical habitat by using an area with an overall size of 100 ac (40 ha) to provide for the conservation of the species, focusing on overall need for nutrient input, moisture, and mesocaverns, rather than on specific vegetation components.

Issue 3: Cave cricket foraging area.

(24)
Comment:
Given the extremely low expected density of foraging crickets in the outer 42 percent of cave cricket foraging distance, and given the distance fire ants are known to travel from a mound, a continuous woody canopy within 344 ft (105 m) of a cave is sufficient to protect cave crickets from adjacent disturbance activities.

Our Response:
We have revised this final rule to be consistent with the final Bexar County Karst Invertebrates Recovery Plan's Karst Invertebrates Preserve Design Recommendations Document (Service 2011a, p. 4).

Issue 4: Amount of critical habitat proposed.

(25)
Comment:
All of Karst Zones 1 and 2 should be included in critical habitat because long-term stewardship necessitates that protected karst formations and associated mesocaverns contiguous to occupied features be larger to provide microclimate refugia to counter the adverse impacts of climate change, pollution, invasive species, and stochastic events.

Our Response:
While we agree that additional mesocavernous areas may be desirable for species conservation, we lack adequate data to justify designating as critical habitat all of Karst Zones 1 and 2. We made our final critical habitat designation consistent with recovery criteria for high-quality KFRs in the final Bexar County Karst Invertebrates Recovery Plan's Karst Invertebrates Preserve Design Recommendations Document (Service 2011a, pp. 3-5).

(26)
Comment:
The Service seems to be ignoring the 2008 Draft Recovery Plan for the Bexar County Invertebrates. An analysis of the required KFAs across each KFR for the species indicates that 4,350 ac (1,760 ha) would be required to meet downlisting criteria. The Service now proposes 6,906 ac (2,795 ha) that, when combined with the Camp Bullis Karst Management Areas, now totals 8,976 ac (3,632 ha). We do not understand why, if 4,350 ac (1,760 ha) can result in downlisting of the species, 8,976 ac (3,632 ha) are essential for the conservation of the species.

Our Response:
In this final critical habitat designation, we relied heavily on the 2011 Final Recovery Plan for the nine Bexar County invertebrates (Service 2011). Because we have a final recovery plan, the recommendations to use the draft recovery plan are not followed. Also, we designated low-quality units that do not count for the recovery of individual species, because not enough high- and medium-quality KFAs are available in the proper configuration to meet recovery criteria for some KFRs. In addition, none of the KFAs is currently fully protected, and we have no way of predicting which, if any, will be fully protected in the future. Therefore, we believe all areas designated meet the definition of critical habitat and are necessary for the conservation of the species. The total area designated in this rule, however, has been reduced to 4,216 ac (1,706 ha) as a result of exemptions and exclusions (explained later in this rule).

Issue 5: Information quality and general comments.

(27)
Comment:
The Service has created critical habitat units that, in many cases, may only include one of the primary constituent elements, with no hope of ever creating the other two. This seriously calls into question the method used to develop areas of critical habitat.

Our Response:
We acknowledged in the proposed rule that not all units contain all the PCEs. For some species, we believed it was appropriate to propose some units that did not have all of the PCEs. For species that occur in only a few locations that have had substantial negative impacts to one or more of the PCEs, we still proposed to designate critical habitat, because the PCEs that are present can support the listed species to some extent. For example, surface habitat without a healthy plant and animal community

can continue to support listed invertebrates below the surface, and clean water from modified surface areas can provide the humidity needed by the listed invertebrates. However, in this final rule, we have reduced the number of PCEs to two and only included areas in the critical habitat designation that contain both PCEs in close enough proximity to each other to be used by the invertebrate population in the area.

(28)
Comment:
Cave crickets and fire ants do not have significant overlap and are not competitive in their natural environment.

Our Response:
We have evaluated the available information and believe that the preponderance of information on the topic indicates there is some overlap. We added language to this final rule to acknowledge the information submitted by the commenter and to explain the reason for our conclusion.

(29)
Comment:
It appears certain boundaries have been intentionally drawn to create a negative impact on property owners and the State of Texas, with no conservation or recovery benefit to the species.

Our Response:
We had no agenda in proposing certain areas as critical habitat except to designate the appropriate areas essential for conservation of the species. We based the proposed boundaries on the best available information. We have revised the boundaries of critical habitat designation in this final rule based on the best available scientific and commercial data available, including comments we received as a result of our proposed rule.

(30)
Comment:
The proposed rule is legally insufficient. The Service has insufficiently identified critical habitat. The Service has not demonstrated that the proposed critical habitat is occupied.

Our Response:
We believe the proposed rule was legally sufficient. As part of section 3(5)(A)(ii) of the Act's definition of critical habitat, proposed areas do not have to be occupied at the time of listing if such areas are essential for the conservation of the species. Additional descriptions of the criteria used to designate critical habitat and the PCEs have been added to this final rule.

(31)
Comment:
The Service's approach circumvents the additional findings that the Service is required to make before designating unoccupied habitat (see
Cape Hatteras Access Preservation Alliance
v.
Dep't of Interior,
344 F.Supp.2d 108, 124 (D.D.C. 2004) (“Cape Hatteras”);
Home Builders Ass'n of Northern California
v.
U.S. Fish and Wildlife Serv.,
268 F.Supp.2d 1197 (E.D. Cal. 2002)).

Our Response:
We believe that all units we are designating are currently occupied and contain the physical and biological features essential to the conservation of the species, which may require special management considerations or protection. Even though recent survey efforts have failed to detect a listed invertebrate species in one or more of the units, the lack of positive survey results does not indicate with reasonable certainty that a listed species is absent from a cave. In many cases, it takes intensive survey efforts conducted over several years to find a specimen. At one time or another, a specimen has been documented in all the units we are designating, and at this time, we lack substantial evidence to indicate that certain units are no longer occupied. Therefore, we consider all critical habitat units as being occupied at the time of listing.

(32)
Comment:
The Service has insufficiently identified the PCEs. The Service does not “identify the physical or biological features essential to the conservation [of the species] in a meaningful way” (
Homebuilders Association of Northern California
v.
U.S. Fish and Wildlife Serv.,
268 F.Supp.2d 1197, 1213 (E.D. Ca. 2003). The court in the 2003 Homebuilder's case (hereinafter referred to as the Whipsnake case) found that very similar PCE descriptions were insufficient.

Our Response:
We added additional language to this final rule to describe why the PCEs are essential to the conservation of the species.

(33)
Comment:
The Whipsnake case also criticized the Service for designating areas that were without one or more PCEs within the designated boundaries. Throughout the proposed rule there are units proposed in heavily developed areas that cannot be assumed to contain the necessary elements for the conservation of the karst species. The Service gives only a generic, cursory indication of how these proposed units provide the PCEs identified in the proposed rule.

Our Response:
See our response to comment (27), above. In this final rule, we have reduced the number of PCEs to two and only included areas in the critical habitat designation that contain both PCEs in close enough proximity to each other to be used by the invertebrate population in the area.

(34)
Comment:
The Service does not provide information as to why each identified PCE would need special management or protection at the unit. Courts have required that the Service, in demonstrating that the designated areas meet the statutory requirements, provide an analysis for why the proposed critical habitat may require special management (Cape Hatteras, 344 F.Supp.2d at 124). Courts have found that the Service did not meet its burden where the Service did not provide analysis: “Rather than discuss how each identified PCE would need management or protection, the Service lists activities that once resulted in consultations and makes a conclusory statement that dredging or shoreline management could result in permanent habitat loss. This does not meet the Service's burden” (Cape Hatteras, 344 F.Supp.2d at 124; Whipsnake case, 268 F.Supp.2d at 1218).

(35)
Comment:
It is hard to imagine, for example, what special management may be required for those units proposed in heavily developed areas that do not contain PCEs for surface water or a healthy surface native plants, but rather have been designated solely for the area's subterranean spaces. With that sort of development and lack of surface PCEs, how can the Service reasonably state that special management may be required? The Service is statutorily required to provide this analysis, and the designation is legally deficient without it.

Our Response to Comments (34) and (35):
We added language to the section on special management to describe specifically why such management was required for each PCE. Because of the changes in criteria for delineation, we have revised some of the boundaries of critical habitat for low-quality units and added additional description of the special management and protection needs.

(36)
Comment:
The Service has not complied with the National Environmental Policy Act (NEPA) (42 U.S.C. 4321
et seq.
). The Service has not prepared an environmental impact statement in accordance with the National Environmental Policy Act (NEPA). The U.S. Court of Appeals for the 10th Circuit and the U.S. District Court of the District of Columbia have both held that the Service must comply with NEPA when designating critical habitat.

Our Response:
As we stated in the proposed rule, 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 as defined by 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)).

(37)
Comment:
In general, it appears that some delineation may not adequately consider hydrogeologic conditions that may affect the boundaries. If the comment suggesting that the distances demonstrated at Camp Bullis is accepted and the unit boundaries reevaluated on that basis, I suggest that geologic maps and previous reports on the hydrogeology of all of the caves be re-examined.

Our Response:
For this final rule, we reevaluated the available information, eliminated the 0.3-mi (0.5-km) distance, and did not accept the distance of mesocaverns for Camp Bullis to apply as a rule of thumb for designation of critical habitat.

(38)
Comment:
Please update your information at the bottom of the page on the number of caves in Bexar County at the time of listing. In September 2000, 437 caves were known in Bexar County. More significantly, about 25 percent had been sealed or destroyed, including some that had not been biologically studied but which by observation of fauna had likely contained some of the listed species. As of today, 523 caves are registered in the county (the actual number is probably about 530) with 103 confirmed as sealed or destroyed and about 40 suspected as sealed or destroyed but which need to be visited for confirmation.

Our Response:
We have modified this final rule accordingly.

Issue 6: Exclusions.

(39)
Comment:
The designation of Unit 1e is imprudent under 16 U.S.C. 1533(a)(3). The Act's regulations provide that, “A designation of critical habitat is not prudent when one or both of the following situations exist: (i) The species is threatened by taking or other human activity, and identification of critical habitat can be expected to increase the degree of such threat to the species, or (ii) Such designation of critical habitat would not be beneficial to the species” (50 CFR 424.12(a)(1)).

Our Response:
We do not believe either situation applies to Unit 1e. This unit contains the physical or biological features essential to the conservation of the species and which may require special management or protection, thus meeting definition of critical habitat in accordance with section 3(5)(A)(i) of the Act. Also, proposed critical habitat was published for the unit, so designation is not likely to increase the threats from human activity. Designation of critical habitat will provide additional protection from future Federal activities that would adversely modify critical habitat and help to educate Federal agencies and the public about the sensitivity of the area.

(40)
Comment:
Proposed Unit 1e should not be included in the designation of critical habitat for the nine karst invertebrate species of Bexar County, Texas. The benefits of excluding Unit 1e far outweigh the benefits of its inclusion. The economic taint of the designation is far more powerful than any unnecessary conservation benefit conferred by a designation. The benefits of promoting voluntary conservation efforts far outweigh the benefit of including Unit 1e as designated critical habitat.

Our Response:
Under section 4(b)(2) of the Act, we are exluding approximately 64 ac (26 ha) of preserve land in Unit 1e, which is being managed in perpetuity under the La Cantera Habitat Conservation Plan (HCP) for the conservation of the listed species. Also, an economic analysis was performed and did not demonstrate substantial economic impacts from critical habitat designation. Finally, the remaining 410 ac (166 ha) of critical habitat in Unit 1e does provide additional protection for the listed species and their habitat.

Comments on Developmental Impacts

(41)
Comment:
The draft economic analysis (DEA) underestimates potential economic impacts of critical habitat on development in Unit 1e. The comment states that the Canyon Ranch parcel is well-suited for development and that the developer has already obtained a Water Pollution Abatement Plan from the Texas Commission on Environmental Quality, a Utility Service Agreement with the San Antonio Water System, and an approved Master Development Plan from the City of San Antonio. In addition, substantial engineering, soil testing, surveying, staking, and construction of a portion of Phase I water line has also been completed. The commenter estimates that undiscounted losses would range between $2.90 million (based on an undeveloped land value of $24,744 per acre) to $7.83 million (based on the sales price of lots less cost of development).

Our Response:
The draft economic analysis (DEA) evaluates two scenarios with respect to development impacts. Scenario 1 assumes that the project reduces habitat quality to the extent that jeopardy is a concern and therefore development restrictions are recommended regardless of critical habitat designation (i.e., impacts are baseline). Scenario 2 assumes that the project has a lesser effect on habitat quality (i.e., reducing it from high to medium) and therefore development is precluded because of critical habitat designation (jeopardy is not a concern). Under scenario 2, impacts to development are incremental. For the 118 acres within Unit 1e, the DEA applied a per-acre land value of $6,900 as determined from review of county land appraisal data. In response to this comment, however, we followed up with the Bexar Appraisal District to affirm the statement in the comment that land value in this unit is underestimated. The Appraisal District indicated that the land value in the unit is likely between $14,000 and $17,000 per acre. Consequently, the final economic analysis (FEA) revises the land value loss estimate from that provided in the DEA. Specifically, the FEA applies a range of per-acre land values from a low end of $14,000 as suggested by the Appraisal District, to a high end of $24,700 as suggested in the public comment. This change results in the estimated present value incremental impacts to development in Unit 1e under scenario 2 being revised from $770,000 in the DEA to between $1,550,000 and $2,740,000 in the FEA. This revision is discussed in detail in section 4.2 of the FEA.

(42)
Comment:
The use of appraisal data to determine land values results in an underestimate of impacts to development. Appraisal data does not take into consideration land development entitlements, master plan approvals, offsite infrastructure improvements, utility agreements, onsite road extensions, or the highest and best use for the property. The commenter estimates that land values are off by a factor of four for Unit 14, a factor of 10 for Unit 21, and a factor of 4 for Unit 26.

Our Response:
In general, appraisal data reflect the best available information regarding the potential value of parcels within the critical habitat. The appraised estimates are based on the information available regarding future uses of the parcel at the time of the appraisal (including any ongoing master plan efforts, land use agreements, and entitlements). To the extent that the latest assessment of a parcel occurred prior approval of a master plan, utility agreement, or other such improvements, the assessed value may underestimate the value of a parcel. Exhibit 4-5 in the DEA presents the appraised, average per-acre land values of $10,500 in Unit 14, $43,100 in Unit 21, and $34,500 in Unit 26 applied in the DEA. In response to this comment, we followed up with the Bexar Appraisal District and an independent broker to affirm the statement in the comment that the land values in these

units are underestimated. The broker indicated that the land value in Unit 14 is approximately $43,600 per acre and land value in Unit 26 is $87,100 per acre. The appraiser and broker provided average land values for the developable portion of Unit 21 located outside of the 100-year flood plain ranging from $174,000 to $218,000. Consequently, the FEA revises the land value loss estimates from those provided in the DEA. Specifically, the FEA applies a range of per-acre land values from a low end of $42,100 to a high end of $43,600 in Unit 14, $174,000 to $431,000 in Unit 21, and $87,100 to $138,000 in Unit 26. These changes result in the estimated present value incremental impacts to development in Unit 14 under scenario 2 being revised from $3,250,000 in the DEA to between $13,000,000 and $13,400,000 in the FEA; from $12,000,000 to between $3,260,000 and $8,050,000 in Unit 21; and from $3,790,000 to between $9,530,000 and $15,100,000 in Unit 26. This revision is discussed in detail in section 4.2 of the FEA.

(43)
Comment:
The DEA underestimates potential economic impacts of critical habitat on development within Unit 13. The comment asserts that the designation would eliminate the development value of these parcels, resulting in a direct impact on the landowners' revenues in excess of $6 million. Similarly, another comment states that incremental impacts on future development in Unit 25 would be $20 million, taking into account land value and the future value of development. A third similar comment states that the DEA does not include impacts to development in Units 12 and 16. The comment asserts that multi-family sites in these units subject to Housing and Urban Development (HUD) financing have already lost sales to apartment developers as a result of the proposed critical habitat designation.

Our Response:
Chapter 4 of the DEA describes that development would be precluded in Units 12, 13, 16, and 25 regardless of critical habitat designation because they are low-quality units in Karst Zones 1 and 2. As described in Section 3.7 of the DEA, in low-quality units, the Service anticipates recommending development be precluded in order to avoid jeopardy. Therefore, development restrictions are anticipated regardless of critical habitat designation, and incremental impacts of critical habitat designation are expected to be limited to additional administrative effort during consultation.

(44)
Comment:
Two comments assert that the DEA underestimates potential economic impacts of critical habitat designation on development in Unit 8. One commenter estimates the lost development value to 200 single-family lots in the Cedar Creek Development to be $4.5 million. These lots have been engineered and entitled at Cedar Creek over the past 6 years. Another commenter estimates that the development site is worth $7 million. In addition, the commenter estimates a loss of $35 million in construction-related expenditures and $200 million in home and business sales. Similarly, multiple comments assert that the DEA underestimates impacts to development by not including the loss of taxes to local governments and by failing to include the “multiplier effect” of development, such as the increase in demand for furniture and landscaping.

Our Response:
Chapter 4 of the DEA estimates incremental impacts to development in Unit 8 ranging from $0 (scenario 1) to $5,590,000 (scenario 2) in the first 20 years and $0 to $17,100 after 20 years. Scenario 2 assumes development restrictions on 299.5 acres of developable land in Unit 8 will reduce the land value by $19,600 per acre based on county appraisal data. The DEA estimate of land value losses of $5.59 million is within the range of the value losses described by these comments ($4.5 million to $7 million).

As explained in paragraphs 154 and 155 of the DEA, the proposed critical habitat area accounts for only 1.6 percent of the total land area projected for development within the next 29 years within the northern portion of Bexar County. Consequently, the designation of critical habitat is not expected to have an effect on broader regional real estate demand and supply due to the existence of substitute sites for development activities. As a result, impacts to the regional construction industry and loss in revenue associated with home and business sales (estimated in a comment at $200 million) are not anticipated to occur. In addition, a reduction in housing supply is unlikely due to the existence of substitute sites, and a measurable loss of tax revenue is not expected to result from critical habitat designation.

(45)
Comment:
Multiple comments state that, unrelated to the designation of critical habitat for the invertebrates, recent undertakings will decrease land values in northwest Bexar County (in particular Unit 3). These undertakings include: (1) San Antonio Water System's decision to abandon all plans to extend water and sewer services into northwest Bexar County and (2) a recent decision to allow properties within a 5-mile buffer of the Edwards Aquifer recharge zone to be purchased using Proposition 1 funds.

Our Response:
The DEA estimates the average per-acre value of unimproved, developable land within each unit using Bexar County land value appraisal data. These data represent the best available information regarding land values. To the extent that recent decisions may impact the value of land in northwest Bexar County, these values may be over- or understated.

(46)
Comment:
The DEA should reassess the incremental impacts of the proposed rule by carefully measuring the impact of critical habitat designation on the areas covered by the La Cantera HCP, including the acres of the La Cantera development land in Unit 9.

Our Response:
The areas preserved as part of the La Cantera HCP in Units 1e, 3, 6, 8, and 17 are being excluded from critical habitat, and the areas authorized for development under the La Cantera HCP in Unit 9 are excluded as well in this final designation.

(47)
Comment:
The DEA underestimates the impacts of the expansion of several proposed critical habitat units from the previous 2003 critical habitat for these species.

Our Response:
The DEA estimates impacts associated with the revised proposed critical habitat designation. This revised designation includes a number of proposed revised units that are larger than they were in the 2003 designation. Section 3.7 of the DEA describes the Service's approach to section 7 consultation in these expanded units, as evaluated in the DEA. Currently, the Service notifies project proponents of the need to consult on the impacts to the invertebrate species of activities with a Federal nexus within Karst Zones 1 and 2 regardless of critical habitat designation. Consultation on projects within Karst Zone 3 would not occur absent critical habitat designation, and therefore these impacts are considered incremental of the designation.

(48)
Comment:
The third party and biological assessment incremental administrative costs applied in the DEA are underestimated. The commenter believes that third party and biological assessment costs should be at least 10 times greater due to the amount of time and effort necessary to analyze potential impacts within a critical habitat unit.

Our Response:
The administrative costs applied in the DEA are based on a review of consultation records from several Service field offices across Bexar County conducted in 2002. For consultations that would occur absent

critical habitat designation (
i.e.,
those in Karst Zones 1 and 2), the incremental administrative cost only represents the additional effort needed to address adverse modification of critical habitat. As the Service is not expected to request any additional conservation efforts as a result of the adverse modification analysis (which arises from a critical habitat designation), we anticipate that the additional effort necessary to address this standard within any biological assessments is relatively minimal compared to the effort required to consider jeopardy to the species (which arises from the listing of the nine invertebrate species).

(49)
Comment:
Two comments state that even absent a Federal nexus, the sigma of critical habitat will eliminate the development value of properties located within Units 13 and 25.

Our Response:
The potential for critical habitat to result in a stigma effect, for example, on property values, is described on page 2-17 of the DEA. In some cases, the public may perceive that critical habitat designation results in limitations on private property uses above and beyond those associated with anticipated project modifications. The DEA assumes that all future development projects within the proposed critical habitat would be subject to a Federal nexus and therefore section 7 consultation regarding the invertebrates. Because scenario 2 of the DEA assumes a complete loss in development value for developable lands, further reductions in land value due to stigma are not expected.

Comments on the DEA's Small Business Analysis

(50)
Comment:
Two comments note that the developers in Units 1e and 13 are not accounted for in Exhibit A-1 as the number of private landowners is zero.

Our Response:
As described in paragraph 1 of Appendix A of the DEA, this appendix considers the extent to which incremental impacts from critical habitat designation may be borne by small entities. Exhibit A-1 of the DEA highlights the number of private landowners of parcels for which incremental impacts to development are estimated. The DEA analyzes two scenarios, in the first scenario, no incremental impacts are expected in Unit 1e and therefore no landowners are affected. In the second scenario, the analysis assumes that five landowners are affected in Unit 1e. If the developer in Unit 1e is also the landowner, then the developer would be included in this number. Because Unit 13 is of low quality and located in Karst Zones 1 and 2, all impacts are expected to be baseline. No incremental impacts are forecast in Unit 13, and therefore no landowners are affected.

(51)
Comment:
Exhibit A-1 inappropriately omits those lands that are being considered for exclusion.

Our Response:
The areas being excluded are preserved as part of the La Cantera Habitat Conservation Plan. These areas are not considered developable lands and therefore no impacts to future development are anticipated. The footnote to Exhibit A-1 has been revised in the FEA to better explain why lands considered for exclusion are not included in the FEA's small business analysis.

Comments on Biological Issues That Inform the DEA

(52)
Comment:
Two comments state that the assumption that there are no incremental impacts in areas that are presently low-quality habitat is incorrect. The commenters assert that because these areas do not fit into the “minimum conservation criteria” described in the DEA, the Service could not sustain a jeopardy determination and therefore any project modifications requested by the Service would be due to critical habitat designation.

Our Response:
As described in section 3.7 of the DEA, the Service anticipates that a jeopardy finding is likely in low-quality units in Karst Zones 1 and 2 if the project further reduces the habitat quality. Projects that would further reduce quality include those that fill in cave entrances or those that substantially reduce the remaining cave cricket foraging area. Such actions would likely result in jeopardy because they would appreciably reduce the likelihood that the species would persist in that unit. If the recovery criteria have not been met for the species (and they have not for any of the KFRs where low-quality units are being designated), recovery would also be substantially reduced. Therefore, the action would likely result in a jeopardy determination.

(53)
Comment:
Two comments state that the previous protocols issued by the Service on March 8, 2006, indicate that projects that may affect the listed species can avoid doing so by preserving the cave entrance and as little as nine acres of “core habitat” around the entrance. The DEA assumes that complete avoidance of critical habitat would be recommended to avoid jeopardy or adverse modification in Karst Zones 1 and 2. Assuming that complete avoidance of critical habitat would be recommended to avoid jeopardy leads to an overstatement of baseline impacts.

Our Response:
As described in section 3.7 of the DEA, the Service has recommended the minimum conservation criteria as outlined in the Recovery Plan as part of section 7 consultation on past development projects. Following these past examples, the Service anticipates making these recommendations to future projects that may jeopardize the species. The document issued on March 8, 2006, United States Fish and Wildlife Service, Section 10(a)(1)(A) Scientific Permit Requirements for Conducting Presence/Absence Surveys for Endangered Karst Invertebrates in Central Texas, makes no statements about effects of development to listed species or to core habitat that should be preserved. These recommendations were updated on September 8, 2011.

Other Economic-Related Comments

(54)
Comment:
In exhibit ES-4, it appears that the minimum conservation criteria have only been met in one unit (Unit 22), while according to exhibit 4-2, the minimum conservation criteria have been met in three units (Units 7, 22, and 23).

Our Response:
Exhibit ES-4 presents key uncertainties associated with the estimated incremental impacts of critical habitat designation for the invertebrates. While the minimum conservation criteria have been met in three units (Units 7, 22, and 23), incremental impacts are only anticipated in Unit 22, as Unit 22 is the only high-quality unit of the three. Units 7 and 23 are low-quality units, and thus the Service anticipates recommending development be precluded in order to avoid jeopardy (i.e., they are included in the baseline). Text has been added to exhibit ES-4 in the FEA to clarify this point.

(55)
Comment:
One comment requests that better explanation be given to if and how habitat quality and project modification relate.

Our Response:
As described in section 3.7 of the DEA, the project modifications recommended to avoid jeopardy and adverse modification are the same. The initial habitat quality of a unit, along with how the project impacts the unit's quality and the project's location within a Karst Zone, affects whether the request for the project modification is generated by jeopardy concerns (
i.e.,
the recommendation would be made regardless of critical habitat designation) or by adverse modification concerns (
i.e.,
specifically because of critical habitat designation).

Summary of Changes From Proposed Rule

In the February 22, 2011, proposed rule (76 FR 9872), we delineated critical habitat boundaries on the basis of the following criteria: (1) Known occupied caves; (2) the cave footprint with surface and subsurface drainage areas associated with the occupied cave; (3) the cave cricket foraging area that is a 344-ft (105-m) circle around the cave entrance, plus an additional 330-ft (100-m) distance to protect against edge effects from invasive species; (4) contiguous geological formations of Karst Zone 1 to protect mesocaverns likely connected to the caves to a distance of 0.3 mi (0.5 km) from the cave entrance; and (5) native vegetation of an area of at least 100 ac (40 ha) needed to support the diversity of native plant species normally found in the Edwards Plateau communities.

Based on the best available scientific and commercial information and information provided from the public and peer reviews, we reviewed our methodology for determining the extent of critical habitat designation for the Bexar County karst invertebrates. We refined the boundaries of our proposed critical habitat units for this final designation and revised our description of the methodology and rationale used in defining the critical habitat boundaries. We made several changes from the proposed rule in this final rule. The changes include: (1) Modifying and reducing the number of PCEs from three to two; (2) removing the 0.3-mi (0.5-km) mesocavern protection area; (3) removing the additional 330-ft (100-m) distance beyond the 344-ft (105-m) cave cricket foraging area to protect against edge effects from invasive species (the 344-ft (105-m) cave cricket foraging area remains a criterion); (4) changing the justification for 100 ac (40 ha) needed around a cave; and (5) removing five previously proposed units that no longer meet the revised criteria used to designate critical habitat. Overall, these changes result in our designation of 4,216 ac (1,706 ha) in 30 units as critical habitat, as compared to our proposed designation of 6,906 ac (2,795 ha) in 35 units. Table 1 provides a unit-by-unit list of the changes in this final rule. The changes are described in more detail below.

Table 1—Comparison of Proposed and Final Critical Habitat Unit Sizes for the Nine Bexar County Invertebrates

Unit

Size of proposed
units in acres
(hectares)

Size of final
units in acres
(hectares)

Land ownership type
Listed species in unit

1a
238 ac
144 ac
State

R. infernalis

(96 ha)
(58 ha).

C. madla

1b
178 ac
100 ac
State

C. vespera

(72 ha)
(40 ha).

N. microps

R. exilis

R. infernalis

1c
178 ac
100 ac
State

C. madla

(72 ha)
(40 ha)

1d
349 ac
225 ac
State

C. madla

(141 ha)
(91 ha).

R. exilis

R. infernalis

1e *
690 ac
410 ac
State

R. infernalis

(279 ha)
(166 ha)
City

R. exilis

Private

B. venyivi

C. madla

1f
178 ac
100 ac
State

R. infernalis

(72 ha)
(40 ha)

2
252 ac
180 ac
Private

C. madla

(102 ha)
(73 ha).

R. exilis

R. infernalis

3 *
125 ac
85 ac
Private

C. madla

(51 ha)
(34 ha).

R. exilis

R. infernalis

B. venyivi

4
255 ac
210 ac
Private

R. exilis

(103 ha)
(85 ha).

R. infernalis

5
117 ac
100 ac
Private

C. madla

(47 ha)
(40 ha).

R. exilis

R. infernalis

B. venyivi

6 *
105 ac
96 ac
Private

C. madla

(42 ha)
(39 ha)
City

R. exilis

R. infernalis

7
158 ac
100 ac
Private

R. exilis

(64 ha)
(40 ha)

8 *
471 ac
243 ac
Private

C. madla

(191 ha)
(98 ha)
City

R. infernalis

R. exilis

9
286 ac
105 ac
State

C. madla

(116 ha)
(42 ha)
Private

R. exilis

10a
1

67 ac
38 ac
City

R. infernalis

(27 ha)
(15 ha)
Private

10b
1

66 ac
35 ac
City

R. infernalis

(27 ha)
(14 ha)

11a
1

21 ac
Removed
Private

R. exilis

(8.5 ha)
(0 ac, 0 ha)

11b
1

16 ac
Removed
Private

R. exilis

6.5 ha
(0 ac, 0 ha)

11c
1

21 ac
Removed
Private

R. exilis

8.5 ha
(0 ac, 0 ha)

11d
1

52 ac
Removed
Private

R. exilis

21 ha
(0 ac, 0 ha)

11e
102 ac
89 ac
Private

R. exilis

(41 ha)
(36 ha)

12
371 ac
166 ac
Private

R. exilis

(150 ha)
(67 ha)

13
187 ac
100 ac
Private

R. exilis

(76 ha)
(41 ha)

14
330 ac
292 ac
Private

R. infernalis

(134 ha)
(118 ha)

15
339 ac
217 ac
Private

C. venii

(137 ha)
(88 ha).

R. infernalis

16
194 ac
103 ac
Private

R. infernalis

(76 ha)
(42 ha)

17 *
114 ac
96 ac
Private

C. madla

(46 ha)
(39 ha).

R. infernalis

19
142 ac
81 ac
Private

R. infernalis

(57 ha)
(33 ha)

20
247 ac
247 ac
Private

T. cokendolpheri

(100 ha)
(100 ha).

C. baronia

21
396 ac
154 ac
City

R. exilis

(160 ha)
(62 ha)
Private

22
178 ac
100 ac
City

C. madla

(72 ha)
(40 ha)
Private

23
178 ac
100 ac
City

R. infernalis

(72 ha)
(40 ha)
Private

24
1

11 ac
Removed
Private

R. exilis

(4.5 ha)
(0 ac, 0 ha)

25
177 ac
100 ac
Private

C. baronia

(72 ha)
(41 ha)

26
117 ac
100 ac
Private

R. infernalis

(47 ha)
(41 ha)

Totals
6,906 ac
4,365 ac

(2,795 ha)
(1,766 ha)

* Indicates unit where lands managed under the La Cantera HCP have been excluded in accordance with section 4(b)(2) of the Act.

1
Cave is located on Camp Bullis; final critical habitat is outside Camp Bullis.

Note:
Area sizes may not sum due to rounding.

Based on information we received in comments regarding the clarity of the PCEs necessary to provide for conservation of the species, we reduced the number of PCEs from three to two. In this final rule, we omit proposed PCE 2 (surface water free of pollutants that flows into the karst features) and include pollutant-free moisture as a component of karst (PCE 1), because the function of surface water free of pollutants is to maintain the high humidity needed by the invertebrates in the karst features, and this is now described in PCE 1. We also change proposed PCE 3 to include more general sources of nutrient input, rather than focusing on native plant communities, because we do not know the precise vegetative community requirements needed for the conservation of the species. Although we believe that native plant communities are preferred, are important, and can increase the long-term stability of habitat, nonnative plant species may also serve as sources of nutrients, particularly in units that are partially developed.

In the proposed rule, we delineated unit boundaries to a distance of 0.3 mi (0.5 km) from the caves to capture the amount of contiguous karst deposit we estimated was necessary to provide for subsurface movement of listed species through mesocaverns between and around occupied caves. However, because of comments we received and an internal review of the available information on the reliability of the genetic and geologic studies information, upon which we relied to propose this distance, we determined that we did not have sufficient information to justify this distance as a criterion. We also removed the justification of an area needed to support an assemblage of vegetation native to the Edwards Plateau. Instead, we used the Bexar County Karst Invertebrates Recovery Team's expert opinion (Service 2008, pp. B-1-B-5) that an area of 100 ac (40 ha) provides a higher probability of species survival and conservation, including nutrient input, moisture, and mesocaverns. Therefore, in this final rule, we delineate the boundaries to include an area of about 100 ac (40 ha) that includes subsurface karst deposits, the cave footprint, surface and subsurface drainage areas, a cave cricket foraging area, and, where possible, at least 100 ac (40 ha) of undisturbed or restorable vegetation. Because of these revisions, the size of many units is reduced substantially (see Table 1, above). See

the
Criteria Used to Identify Critical Habitat
section for additional details.

As a result in these changes in criteria used to identify critical habitat, we completely removed five units from this final designation that had been proposed for designation (Units 11a, 11b, 11c, 11d, and 24). All of these units were located adjacent to Department of Defense lands (Camp Bullis Military Reservation (Camp Bullis)), and because applying the new criteria for delineation left little or no habitat associated with the occupied cave and associated karst on Camp Bullis, the lands are not designated as critical habitat in this rule. In addition, a large portion of Unit 9 north of highway Loop 1604 is not included in this final designation because most of the property was authorized for development under La Cantera's HCP, and the small, undisturbed area around the remaining features is not considered to be essential to the conservation of the species because of its small size and because highly impervious cover in the surrounding area has reduced the input of nutrients and moisture (see Exclusions section for more details).

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; even in the event of a destruction or adverse modification finding, however, 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 and 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 the elements of physical or biological features that together 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
Federal Register
on July 1, 1994 (59 FR 34271)), the Information Quality Act (section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), and our associated Information Quality Guidelines, provide criteria, establish procedures, and provide guidance to ensure that our decisions are based on the best scientific data available. They require our biologists, to the extent consistent with the Act and with the use of the best scientific data available, to use primary and original sources of information as the basis for recommendations to designate critical habitat.

When we are determining which areas should be designated as critical habitat, our primary source of information is generally the information developed during the listing process for the species. Additional information sources may include 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. In addition, our knowledge of species' locations and habitat requirements are incomplete. 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) the prohibitions of section 9 of the Act if actions occurring in these areas may affect the species. 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 sections 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 nine Bexar County invertebrates 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
Federal Register
on February 22, 2011 (76 FR 9872), and in the information presented below. Additional information can be found in the final listing rule published in the
Federal Register
on December 26, 2000 (65 FR 81419), and the Bexar County Karst Invertebrates Recovery Plan (Service 2011). We have determined that each of the nine Bexar County invertebrates require the physical or biological features described below.

Space for Individual and Population Growth and for Normal Behavior

The nine Bexar County invertebrates are terrestrial troglobites that require underground passages with stable temperatures (Howarth 1983, p. 373; Dunlap 1995, p. 76) and constant, high humidity (Barr 1968, p. 47; Mitchell 1971a, p. 250). In addition to the larger cave passages that are accessible by humans where the species are collected, the species also need mesocaverns (tiny voids that are connected to larger cave passages) (Howarth 1983, p. 371), which provide additional habitat to sustain viable populations of the species (White 2006, pp. 100-101). During temperature extremes, small mesocavernous spaces connected to caves may have more favorable humidity and temperature levels than the cave (Howarth 1983, p. 371); however, the abundance of food may be less in mesocaverns than in the larger cave passages. Therefore, the nine Bexar County invertebrates may spend the majority of their time in mesocaverns, only leaving during temporary forays into the larger cave passages to forage (Howarth 1987, p. 377). Based on the information above, we identify karst-forming rock containing subterranean spaces (caves and connected mesocaverns) with stable temperatures, high humidities (near saturation), and suitable substrates (spaces between and underneath rocks for foraging and sheltering) to be a physical and biological feature needed by these species.

Food, Water, Air, Light, Minerals, or Other Nutritional or Physiological Requirements

Water

The nine Bexar County invertebrates need clean water that is free of pollutants to maintain stable humidity and temperatures. To maintain stable humidity, the amount of clean water varies depending on the size of the drainage basin, caves, and mesocaverns. Water enters the karst ecosystem through surface and subsurface drainage basins. Well-developed pathways, such as cave openings and fractures, rapidly transport water through the karst with little or no purification. Caves are susceptible to pollution from contaminated water entering the ground because karst has little capacity for self-purification. The route that has the greatest potential to carry water-borne contaminants into the karst ecosystem is through the drainage basins that supply water to the ecosystem. Because cave fauna require material washed in through entrances (including human inaccessible cracks), and because they require generally high humidity, it is essential to have drainage basins with unpolluted water. The surface drainage basin consists of the cave entrance and other surface input sources, such as neighboring sinkholes and soil percolation. The subsurface or groundwater drainage basin includes mesocaverns, as well as subterranean streams that have a connection to the surface but that connection is often not observable from the surface. The surface and subsurface drainage basins do not necessarily overlap, and they may be of different size and direction (Veni 2003, pp. 7-8).

In conclusion, we identify clean surface water that flows into the karst features to be a physical and biological feature needed by these species. Sources may include runoff that flows into the caves' entrances or associated features through sinkholes or fractures, and through-ground flows via fractures, conduits, and passages.

Surface Plant and Animal Communities

The nine Bexar County invertebrates need healthy surface plant and animal communities in areas around and over the karst they occupy (see discussion under Background). Surface vegetation provides nutrients that support trogloxene (species that regularly inhabit caves for refuge, but return to the surface to feed) and accidental species (those that wander in or are trapped in a cave) and provides nutrients through leaf litter and root masses that grow directly into caves (Howarth 1983, p. 373; Jackson
et al.
1999, p. 11387). Because the nine Bexar County invertebrates are at the top of their food chain (Service 2011c, p.7), habitat changes that affect their food sources (including plants and cave crickets) can affect them (Culver
et al.
2000, p. 395).

Surface vegetation also protects the subsurface environment against drastic changes in the temperature and moisture regime. It serves to filter pollutants (to a limited degree) before they enter the karst system and protects against nonnative species invasions (Biological Advisory Team 1990, p. 38).

Surface invertebrates provide food for trogloxenes, such as cave crickets, bats, toads, and frogs. Other animals wash or accidentally stumble into caves and are food sources for cave-limited species. A

healthy, native arthropod community may also better stave off fire ants (Porter
et al.
1988, p. 914), which pose a threat to the karst ecosystem.

Cave crickets are an important source of nutrient input for karst ecosystems (Barr 1968, p. 48; Reddell 1993, p. 2). The cave crickets forage on the surface at night and roost in the cave during the day. Cave crickets provide food for karst species, which feed on their eggs, young, and feces (Mitchell 1971b, p. 250; Barr 1968, pp. 51-53; Poulson
et al.
1995, p. 26). Many of the vertebrate species that occasionally use caves bring in a significant amount of energy in the form of scat, nesting material, and carcasses.

Natural quantities of plants and animals are an important part of a functioning ecosystem. Therefore, based on the information above, we identify a healthy surface community of plants (for example, juniper-oak woodland) and animals (for example, cave crickets) living in and near the karst feature that provides nutrient input and protects the karst ecosystem from adverse effects (nonnative species invasions, contaminants, and fluctuations in temperature and humidity), as being a essential biological feature.

Primary Constituent Elements for the Nine Bexar County Invertebrates

Under the Act and its implementing regulations, we are required to identify the physical or biological features essential to the conservation of the nine Bexar County invertebrates in areas occupied at the time of listing, focusing on the features' primary constituent elements. We consider primary constituent elements (PCEs) to be the elements of physical or biological features that together 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 PCEs specific to each of the nine Bexar County invertebrates are:

(1) Karst-forming rock containing subterranean spaces (caves and connected mesocaverns) with stable temperatures, high humidities (near saturation), and suitable substrates (for example, spaces between and underneath rocks for foraging and sheltering) that are free of contaminants and

(2) Surface and subsurface sources (such as plants and their roots, fruits, and leaves, and animal (
e.g.,
cave cricket) eggs, feces, and carcasses) that provide nutrient input into the karst ecosystem.

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 appropriate existing or restorable quantity and spatial arrangement of the features' primary constituent elements sufficient to support the life-history processes of the species. All units designated as critical habitat are currently occupied by one or more of the nine Bexar County invertebrates and some contain the primary constituent elements in the appropriate quantity and spatial arrangement sufficient to support the life-history needs of the species. Others are degraded, and some may never reach recovery criteria for the species.

Special Management Considerations or Protection

When designating critical habitat, we assess the physical or biological features within the geographical area occupied by the species at the time of listing that are essential to the conservation of the species and which may require special management considerations or protection.

The Bexar County human population is projected to increase 13.8 percent from 2010 to 2020, and 45.2 percent by 2050 (San Antonio Planning Department 2005, p. 1). Most of the threats to the nine Bexar County invertebrates and their PCEs are the result of this continued rapid population growth and associated urbanization. Threats include: Filling and collapsing caves; altering drainage patterns, decreasing water infiltration, and drying karst or increasing flooding; removing native vegetation and replacing it with impervious cover and nonnative plants; reducing nutrient input into caves; changing temperatures; decreasing humidity; contaminating habitat as a result of human activities in the surface and subsurface drainage basins of caves and in adjacent karst areas; increasing human visitation, resulting in alteration of the cave habitat and direct mortality of listed species; and increasing infestation by fire ants, a predator and competitor that can cause direct predation on and competition with trogloxenes like cave crickets, ultimately reducing nutrient input into the cave.

In 2000, 437 caves were known in Bexar County, and about 109 of the 437 had been sealed or destroyed, including some that had not been biologically studied, but by observation of fauna, had likely contained some of the listed species. Currently, 523 caves are registered in Bexar County, with 103 of those confirmed as sealed or destroyed, and about 40 more suspected as sealed or destroyed, but which need to be visited for confirmation (Veni 2011, pers. comm.).

Construction and development activities that may not destroy a cave entrance can still result in collapse of the cave ceiling or other adverse effects on the karst environment. On ranch land or in rural areas, it is not uncommon to use caves as trash dumps (Culver 1986, p. 434; Reddell 1993, p. 2) or to cover the entrances to prevent livestock from falling in (Elliott 2000, pp. 374-375). These activities can be detrimental to the karst ecosystem by causing direct destruction of habitat or altering the natural passage of organisms, water, detritus, and other organic matter into a cave. Quarrying of limestone and road base material is a widespread activity that can remove vegetation and destroy karst habitat. A number of occupied caves in Bexar County have been severely impacted in the past, and an examination of recent aerial photography reveals recent impacts to karst habitat near several other occupied caves.

Cave organisms are adapted to live in a narrow range of temperature and humidity. To sustain these conditions, both natural surface and subsurface flow of water and nutrients should be maintained. Decreases in water flow or infiltration can result in excessive drying and may slow decomposition of organic matter, while increases can cause flooding that drowns air-breathing species and carries away available nutrients. Alterations to surface topography, including decreasing or increasing soil depth or adding nonnative fill, can change the nutrient flow into the cave, and affect the cave community (Howarth 1983, p. 381). Changes in the amount of impermeable cover, collection of water in devices like storm sewers, increased erosion and sedimentation, and irrigation and sprinkler systems can affect water flow to caves and the surrounding karst. Changes in the quantity of water, its organic content, the timing and extent of flood pulses, or droughts may negatively impact the listed species.

Karst ecosystems are heavily reliant on surface plant and animal communities to maintain nutrient input, reduce sedimentation (in the case of plants), and resist exotic and invasive species. As the surface around a cave entrance or over the associated karst ecosystem is developed, native plant communities are often replaced with impermeable cover or exotic plants from

nurseries. The abundance and diversity of native animals may decline due to decreased food and habitat, combined with increased competition and predation from urban, exotic, and pet species. As surface plant and animal communities are destroyed, food and habitat once available to trogloxenes decreases. Destruction of plant communities can lead to increased erosion that causes sedimentation within caves. Where native woodland and grassland communities are present, a perimeter area is needed to shield the core vegetation habitat from impacts associated with edge effects or disturbance from adjacent urban development (Lovejoy
et al.
1986, p. 284; Yahner 1988, pp. 333-334). Effects from such impacts can include increases in invasive species and pollutants, and changes in microclimates, which can adversely affect the listed species by impacting nutrient cycling processes important in cave/karst dynamics.

Much of the habitat occupied by the Bexar County invertebrates is particularly sensitive to groundwater contamination, because little or no filtration occurs, and water penetrates rapidly through bedrock conduits (White 1988, p. 149). The ranges of these species are becoming increasingly urbanized, and, thereby, they are becoming more susceptible to contaminants including sewage, oil, fertilizers, pesticides, herbicides, seepage from landfills, pipeline leaks, or leaks in storage structures and retaining ponds. Activities on the surface, such as disposing of toxic chemicals or motor oil, can contaminate caves (White 1988, p. 388). Materials like cleaning agents, industrial chemicals, and heavy metals can also easily infiltrate subterranean ecosystems by the pollutants leaching into the karst, for example, from leaking underground storage tanks, or by being washed into the surface or subsurface drainage area. Contamination of karst habitat can also occur from the deposition of air pollutants in the surface or subsurface drainage area and improper disposal of litter, motor oil, batteries, or other household products in or near caves (White 1988, pp. 399-400).

Continued urbanization will increase the likelihood that karst ecosystems are polluted by contamination from leaks and spills, which often have occurred in Bexar County. The Texas Commission on Environmental Quality (TCEQ 2010, pp. TCEQ—5 to TCEQ—8) summarized information on groundwater contamination reported by a number of agencies, and listed 109 groundwater contamination cases that occurred in Bexar County between 1980 and 2000; the majority of them were spills or leaks of petroleum products. Groundwater contamination poses a threat to entire karst ecosystems and is particularly difficult to manage because pollutants can originate far from the sensitive karst site and flow rapidly through the subsurface (White 1988, pp. 387-388).

Fire ants are a pervasive, nonnative ant species originally introduced to the United States from South America over 50 years ago and are an aggressive predator and competitor that has spread across the southern United States. They often replace native species, and evidence shows that overall arthropod diversity, as well as species richness and abundance, decreases in infested areas. Fire ants pose a threat to the listed invertebrates in Bexar County through direct predation and competition with native species (such as cave crickets) for food resources. This threat is exacerbated by activities that accompany urbanization and that result in soil disturbance and disruption to native ant communities (refer to previous detailed discussion in Background).

Maintaining native vegetation communities greater than 12 ac (5 ha) may help sustain native ant populations and further deter fire ant infestations (Porter
et al.
1988, p. 914; 1991, p. 869). On Camp Bullis Military Reservation, in Bexar and Comal Counties, Texas, caves are located in large expanses of undeveloped land. Although there is some ground disturbance in portions of the area, caves on Camp Bullis had less fire ant infestation than caves in more urbanized areas, even prior to beginning a fire ant treatment regime (Veni and Associates 1999, p. 55). In addition, Suarez
et al.
(1998, p. 2047) found that protection of a core area zone that is at least 330 ft (100 m) wide helps to reduce the severity of infestations of Argentine ant (
Linepithema humile
), a species similar to the fire ant.

Karst invertebrates in central Texas are especially susceptible to fire ant predation because most caves are relatively short and shallow. Fire ants have been found within and near many caves in central Texas and have been observed feeding on dead troglobites, cave crickets, and other species within caves (Elliott 1992, p. 13; 1994, p. 15; 2000, pp. 668, 678; Reddell 1993a, p. 10; Taylor
et al.
2003, p. 3). Hot and dry weather may also encourage fire ants to move into caves during summer months, and cold weather may cause them to seek refuge or prey in the caves during the winter. Besides direct predation, fire ants threaten listed invertebrates by reducing the nutrient input that fuels the karst ecosystem. Taylor
et al.
(2003, p. 3) found that cave crickets often arrived before fire ants at baits placed above ground at night, but the arrival of fire ants corresponded to the departure of cave crickets, indicating competition for at least some food resources. Lavoie
et al.
(2007, p. 126) also reported that cave crickets and fire ants ate the same baits. Of 36 caves visited during status surveys for the nine Bexar County karst invertebrates, fire ants were found in 26 of them (Reddell 1993a, p. 32).

Models suggest climate change may cause the southwestern United States to experience the greatest temperature increase of any area in the lower 48 States (IPCC 2007, p. 15). There is also high confidence that many semi-arid areas like the western United States will suffer a decrease in water resources due to climate change (IPCC 2007, p. 16), as a result of less annual mean precipitation and reduced length of snow season and snow depth (Christensen
et al.
2007, p. 850). These predictions underscore the importance of special management to maintain karst moisture levels to ensure survival of the nine invertebrates.

In summary, threats to the nine Bexar County invertebrates include clearing of vegetation for commercial or residential development, road building, quarrying, or other purposes. Infestation by nonnative vegetation causes adverse changes in the plant and animal community and possibly in moisture availability. An increase in fire ants can occur with development and cause competition with and predation on other invertebrates in the karst ecosystem. In addition, filling cave features for construction, ranching, or other purposes can adversely affect the listed invertebrate species by reducing nutrient input, reducing small mammal access, and changing moisture regimes. Excavation for construction or operation of quarries can directly destroy karst features occupied by any of the nine Bexar County invertebrates, including the mesocaverns they use. Examples of management that would alleviate these threats include: (1) Protecting vegetation around occupied karst features and overlying connected mesocaverns; (2) protecting subsurface karst habitat to allow movement of karst invertebrates through caves and mesocaverns; (3) controlling nonnative fire ants around cave features and within the karst cricket foraging area; (4) preventing unauthorized access to karst features by installing fencing and cave gates; and (5) keeping the surface and subsurface areas surrounding cave features and associated mesocaverns free from sources of contamination.

Criteria Used To Identify Critical Habitat

As required by section 4(b)(1)(A) of the Act, we used the best scientific and commercial data available to designate critical habitat. We reviewed available information pertaining to the habitat requirements of these 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 as well as those occupied at the time of listing—are necessary to ensure the conservation of the species. We are designating critical habitat in areas within the geographical area occupied by the species at the time of listing in 2000. We also are designating specific areas outside the geographical area known to be occupied by the species at the time of listing, which are currently occupied, because we have determined that such areas are essential for the conservation of the species.

We relied on information in presence/absence survey reports submitted during project consultations with the Service, annual reports on research and recovery activities conducted under section 10(a)(1)(A) scientific permits, annual section 10(a)(1)(B) reports, section 6 species status reports, and literature published in peer-reviewed journals. We also used information from the proposed (67 FR 55063; August 27, 2002) and final (68 FR 17155; April 8, 2003) critical habitat rules, draft recovery plan (Service 2008), final recovery plan (Service 2011), and other information in our files. Critical habitat units were delineated by creating approximate areas for the units by screen-digitizing polygons (map units) using ArcMap (Environmental Systems Research Institute, Inc.). We defined the boundaries of each unit based on the criteria below:

(1) We identified all areas known to be occupied by the species. We used verified identifications of specimens by recognized species experts. In the case of Madla Cave meshweaver, we also used genetic identification (Paquin and Hedin 2004, p. 3244).

(2) We included the cave footprint with the surface and subsurface drainage areas of the cave, where known.

(3) We included a cave cricket foraging area that is a 344-ft (105-m) circle around the cave entrance (Taylor
et al.
2005, p. 97).

(4) We also included an area of at least 100 ac (40 ha) around the cave footprint of undisturbed or restorable vegetation as recommended by the Bexar County Karst Invertebrates Recovery Team (Recovery Team) (Service 2008, pp. B1-5). The Recovery Team used an expert opinion poll to query members about species conservation needs, relying on goals identified by the recovery team for maintaining a healthy karst ecosystem for the nine invertebrates. Recovery Team members ranked a preserve size of 60 to 90 ac (16 to 36 ha) with the occupied karst feature near its center as having the highest probability of achieving each goal (Service 2008, p. B-5). Specified goals included maintaining high humidity, stable temperatures, high water quality of surface and subsurface drainage basins, and good connectivity with mesocaverns for population dynamics of troglobites. The Preserve Design Recommendations document cited in the final recovery plan increased the preserve size to a minimum of 100 ac (40 ha) for a high-quality KFA based on peer-review comments (Service 2011, p. 3). Therefore, we used a circle encompassing 100 ac (40 ha), with the occupied feature near the center as a guide, for delineation of critical habitat, because that area and configuration are likely to provide the necessary nutrient input, maintain moisture, protect a substantial amount of the mesocaverns that are likely connected to the occupied karst feature, and remain viable over the long term. In units that are undeveloped, it will also protect a diverse assemblage of vegetation. We also used this target size for units that are at least partially developed because we believe that remaining vegetation can provide nutrients, moisture, and mesocavern protection for the listed species. Although such low-quality units may not count toward the recovery of the species, they do serve to increase the probability the species is likely to survive.

We used a circle with an area of 100 ac (40 ha) as a guide for mapping the physical or biological features essential to the conservation of the nine Bexar County invertebrates. We positioned the circle with the occupied feature at the center. Then we changed the shape of the edge to maintain at least 100 ac (40 ha). We gave preference to including undisturbed, existing or restorable vegetation in Karst Zone 1; the surface and subsurface drainage basins; and the cave cricket foraging areas of the occupied features. We did not include area for cave cricket foraging if it was on the other side of an urban edge, such as a major roadway, because such edges act as barriers to cricket movement. When the delineations around individual caves overlapped, we included those caves in the same unit.

In this designation, we included areas that possess those physical or biological features essential to the conservation of each of the species and that may require special management considerations or protection. Even though the nine Bexar County invertebrates spend their entire lives underground, we included specific surface features when identifying critical habitat units, because they are important drainage links into the caves, and because surface habitat is needed to support the plant and animal communities upon which the invertebrates depend for nutrients.

We identified critical habitat units that are known to be occupied based on one or more surveys that resulted in the collection of a specimen from the karst feature and verification of a species' identity by a taxonomic expert. Some of the rarer species are difficult to collect, and it may take many surveys over multiple years to detect even the more common species (Krejca and Weckerly 2007, p. 286). Therefore, we included all locations with historic records of species occupancy, regardless of date.

We determined the units based on the presence of both of the defined PCEs and the kind, amount, and quality of habitat associated with those occurrences. We only designated areas that include both PCEs in close enough proximity to each other to be used by the invertebrate population in the area. Some of the units contain the appropriate quantity and distribution of PCEs to support the life cycle stages we have determined as essential to the conservation of the species. In other units or portions of units, one or both of the PCEs have been degraded. We included such units because the portion of the PCEs that are present can support the listed species to some extent, even though the PCEs have been degraded. For example, surface habitat without a healthy plant and animal community can continue to support listed invertebrates below the surface for a limited time, and clean water from modified surface areas can provide the humidity needed by the listed invertebrates.

When determining critical habitat boundaries within this final rule, we made every effort to avoid including developed areas, such as lands covered by buildings, pavement, and other structures that lack the surface physical or biological features for the nine Bexar County invertebrates, and which do not contain the subsurface physical or biological features to support life-history processes essential for the conservation of the invertebrates. The

scale of the maps we prepared under the parameters for publication within the Code of Federal Regulations may not reflect the non-inclusion of such developed lands in critical habitat. Therefore, a Federal action involving these lands will not trigger section 7 consultations 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.

However, in some instances, we included some developed areas that had partially degraded surface features. We included these developed lands because they contain the subsurface physical or biological features, such as karst-forming rock containing subterranean spaces, and enough of the surface physical or biological features in close enough proximity to support life-history processes essential for the conservation of the invertebrates. The scale of the maps we prepared under the parameters for publication within the Code of Federal Regulations may not reflect the non-inclusion of developed lands.

We are designating as critical habitat lands that we have determined were occupied at the time of listing and contain sufficient physical or biological features to support life-history processes essential for the conservation of the species, and lands outside of the geographical area not known to be occupied at the time of listing, which are currently occupied, and which we have determined are essential for the conservation of Bexar County invertebrates.

Final Critical Habitat Designation

We are designating 30 units as critical habitat for the nine Bexar County invertebrates. The critical habitat areas described below constitute our best assessment at this time of areas that meet the definition of critical habitat. Table 2 lists the occupied units.

Table 2—Occupancy by One or More of the Nine by Designated Critical Habitat Units

Unit
Known to be occupied at time of listing?
Currently occupied?

1a
Yes
Yes.

1b
Yes
Yes.

1c
Yes
Yes.

1d
Yes
Yes.

1e
No
Yes.

1f
No
Yes.

2
Yes
Yes.

3
Yes
Yes.

4
Yes
Yes.

5
Yes
Yes.

6
Yes
Yes.

7
Yes
Yes.

8
Yes
Yes.

9
Yes
Yes.

10a
Yes
Yes.

10b
Yes
Yes.

11e
No
Yes.

12
Yes
Yes.

13
Yes
Yes.

14
Yes
Yes.

15
Yes
Yes.

16
Yes
Yes.

17
Yes
Yes.

19
Yes
Yes.

20
Yes
Yes.

21
No
Yes.

22
No
Yes.

23
No
Yes.

25
No
Yes.

26
No
Yes.

The approximate area of each critical habitat unit is shown in Table 3.

Table 3—Unit Number, Known Occupied Caves, Unit Size, Land Ownership, and Listed Species That Are Known To Occur Within Each Critical Habitat Unit

Unit
Known occupied caves in unit

Size of unit in acres
(Hectares)

Land ownership type

Listed species
in unit

1a
Bone Pile Cave, Surprise Sink
144 ac (58 ha)
State

R. infernalis, C. madla.

1b
Government Canyon Bat Cave
100 ac (40 ha)
State

C. vespera, N. microps, R. exilis, R. infernalis.

1c
Lost Pothole Cave
100 ac (40 ha)
State

C. madla.

1d
Dancing Rattler Cave, Lithic Ridge Cave, Hackberry Sink
225 ac (91 ha)
State

C. madla, R. exilis, R. infernalis.

1e
Canyon Ranch Pit*, Continental Park Cave, Creek Bank Cave, Fat Man's Nightmare Cave*, Pig Cave, San Antonio Ranch Pit, Scenic Overlook Cave*, Tight Cave
410 ac (166 ha)
State, Private, City

R. infernalis, R. exilis, B. venyivi, C. madla.

1f
10K Cave
100 ac (40 ha)
State

R. infernalis.

2
Logan's Cave, Madla's Drop Cave
180 ac (73 ha)
Private

C. madla, R. exilis, R. infernalis.

3
Helotes Blowhole*, Helotes Hilltop Cave*
85 ac (34 ha)
Private

C. madla, R. exilis, R. infernalis, B. venyivi.

4
Kamikazi Cricket Cave, Mattke Cave, Scorpion Cave
210 ac (85 ha)
Private

R. exilis, R. infernalis.

5
Christmas Cave
100 ac (40 ha)
Private

C. madla, R. exilis, R. infernalis, B. venyivi.

6
John Wagner Ranch Cave No. 3*
96 ac (39 ha)
Private, City

C. madla, R. exilis, R. infernalis.

7
Young Cave No. 1
100 ac (40 ha)
Private

R. exilis.

8
Three Fingers Cave, Hills and Dales Pit*, Robber's Cave
243 ac (98 ha)
Private, City

C. madla, R. infernalis, R. exilis.

9
Mastodon Pit, Feature No. 50, La Cantera Cave No. 1*, La Cantera Cave No. 2*
105 ac (42 ha)
State, Private

C. madla, R. exilis.

10a

Low Priority Cave
1

38 ac (15 ha)
City, Private

R. infernalis.

10b

Flying Buzzworm Cave
1

35 ac (14 ha)
City

R. infernalis.

11e
Blanco Cave
89 ac (36 ha)
Private

R. exilis.

12
Hairy Tooth Cave, Ragin' Cajun Cave
166 ac (67 ha)
Private, City

R. exilis.

13
Black Cat Cave
100 ac (41 ha)
Private

R. exilis.

14
Game Pasture Cave No. 1, King Toad Cave, Stevens Ranch Trash Hole Cave, F2, F4
292 ac (118 ha)
Private

R. infernalis.

15
Braken Bat Cave, Isopit, Obvious Little Cave, Wurzbach Bat Cave
217 ac (88 ha)
Private

C. venii, R. infernalis.

16
Caracol Creek Coon Cave
103 ac (42 ha)
Private

R. infernalis.

17
Madla's Cave*
96 ac (39 ha)
Private

C. madla, R. infernalis.

19
Genesis Cave
81 ac (33 ha)
Private

R. infernalis.

20
Robber Baron Cave
247 ac (100 ha)
Private

T. cokendolpheri, C. baronia.

21
Hornet's Last Laugh Pit, Kick Start Cave, Springtail Crevice
154 ac (62 ha)
City, Private

R. exilis.

22
Breathless Cave
100 ac (40 ha)
City, Private

C. madla.

23
Crownridge Canyon Cave
100 ac (40 ha)
City, Private

R. infernalis.

25
OB3
100 ac (40 ha)
Private

C. baronia.

26
Max and Roberts Cave
100 ac (40 ha)
Private

R. infernalis.

Totals
59 caves, 30 Units
4,216 ac (1,706 ha)

* Indicates caves and associated lands excluded from critical habitat designation under the La Cantera HCP in accordance with section 4(b)(2) of the Act.

1
Cave is located on Camp Bullis; critical habitat is outside Camp Bullis.

Note:
Area sizes may not sum due to rounding.

We present brief descriptions of the units, and reasons why they meet the definition of critical habitat for each of the nine Bexar County invertebrates, below.

Unit 1a

Unit 1a consists of 144 ac (58 ha) of State-owned land located in northwestern Bexar County in the northwestern part of Government Canyon State Natural Area (GCSNA) in the Government Canyon KFR. The GCSNA is an area of approximately 8,622 ac (2,688 ha) owned and managed by the Texas Parks and Wildlife Department (TPWD). The GCSNA is accessible to the public under certain restrictions. This unit is all undeveloped woodland and is crossed by a wet weather stream and a trail. Unit 1a contains Surprise Sink, which is occupied by Madla Cave meshweaver and
R. infernalis,
and Bone Pile Cave, which is occupied by
R. infernalis.
Surprise Sink was believed to be occupied by Government Canyon Bat Cave spider, but further investigation showed that this identification could not be confirmed (Ledford 2011, pp. 160-161). The caves in this unit were occupied at the time of listing by each of the species listed above, and the unit contains the features essential to the conservation of each species (PCEs 1 and 2).

The features essential to the conservation of the species in this unit may require special management considerations or protection to address the main threat in this unit, which is infestation of fire ants. The GCSNA currently has a management plan in place that includes treating for fire ants and managing for the benefit of the Madla Cave meshweaver and
R. infernalis.
The treatment of fire ants only temporarily alleviates the threat, so special management is required in perpetuity to remove the threat.

The unit was delineated by drawing a circle with an area of 100 ac (40 ha) around each of the two caves and connecting the edges of the overlapping circles. Unit 1a is all Karst Zone 1.

Unit 1b

Unit 1b consists of 100 ac (40 ha) of State-owned land located in northwest Bexar County in the western portion of the GCSNA in the Government Canyon KFR. Land within the unit consists of undeveloped woodland. However, there are several one-lane gravel roads that serve primarily as pedestrian trails within the State natural area. A small portion of the vegetation appears to have been cleared for ranching prior to TPWD ownership. The unit contains one cave, Government Canyon Bat Cave, which is the only cave known to be occupied by the Government Canyon Bat Cave meshweaver. The cave is also occupied by Government Canyon Bat Cave spider,
R. exilis,
and
R. infernalis.
The Government Canyon Bat Cave was occupied at the time of listing, and the unit contains all the PCEs.

The main threat to species in this unit is infestation of fire ants. The GCSNA currently has a management plan in place that includes treating for fire ants and managing for the benefit of the species. Because the treatment for fire ants only temporarily alleviates the threat, special management is required in perpetuity.

The unit was delineated by drawing a circle with an area of 100 ac (40 ha) around the cave. A small piece of Karst Zone 2 on the northern part of the circle is included because removing it would increase the edge effects. The remainder of Unit 1b is Karst Zone 1.

Unit 1c

Unit 1c consists of 100 ac (40 ha) of State-owned land located in northwestern Bexar County in the central part of GCSNA in the Government Canyon KFR. This unit is primarily undeveloped native woodland that is crossed by a hiking trail. There is only one cave in this unit, Lost Pothole Cave. The cave was occupied at the time of listing, and the unit contains all the PCEs for the species. A small amount of the woody vegetation in this unit has been cleared in the past for ranching prior to TPWD ownership.

The main threat to species in the unit is infestation of fire ants. GCSNA currently has a management plan in place that includes treating for fire ants and managing for the benefit of the species. Because the treatment for fire ants only temporarily alleviates the threat, special management is required in perpetuity.

This unit was delineated by drawing a circle with an area of 100 ac (40 ha) around the cave. Unit 1c is all Karst Zone 1.

Unit 1d

Unit 1d consists of 225 ac (91 ha) of State-owned land located in northwestern Bexar County in the central part of the GCSNA in the Government Canyon KFR. This unit is wooded and undeveloped. The unit is primarily nat

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2012-2195. Public record. Not legal advice.