Endangered and Threatened Wildlife and Plants; Proposed Determination of Critical Habitat for the Huachuca Water Umbel, a Plant

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AF37

Endangered and Threatened Wildlife and Plants; Proposed

Determination of Critical Habitat for the Huachuca Water Umbel, a Plant

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose

designation of critical habitat pursuant to the Endangered Species Act

of 1973, as amended (Act), for Lilaeopsis schaffneriana ssp. recurva,

the Huachuca water umbel, a plant. Proposed critical habitat includes a

total of 83.9 kilometers (52.1 miles) of streams or rivers in Cochise

and Santa Cruz counties, Arizona. If this proposal is made final,

section 7 of the Act would prohibit destruction or adverse modification

of critical habitat by any activity funded, authorized, or carried out

by any Federal agency. Section 4 of the Act requires us to consider

economic and other impacts of specifying any particular area as

critical habitat. We solicit data and comments from the public on all

aspects of this proposal, including data on the economic and other

impacts of the designation. We may revise this proposal to incorporate

or address new information received during the comment period.

DATES: We will accept comments until March 1, 1999. We will hold a

public hearing on this proposed rule; we will publish the date and

location of this hearing in the Federal Register and local newspapers

at least 15 days prior to the hearing.

ADDRESSES: Send comments and materials to the Field Supervisor, Arizona

Ecological Services Field Office, U.S. Fish and Wildlife Service, 2321

West Royal Palm Road, Suite 103, Phoenix, Arizona, 85021-4951. Comments

and materials received will be available for public inspection, by

appointment, during normal business hours at the above address.

FOR FURTHER INFORMATION CONTACT: Tom Gatz, Endangered Species

Coordinator, at the above address (telephone 602/640-2720 ext. 240;

facsimile 602/640-2730).

SUPPLEMENTARY INFORMATION:

Background

Lilaeopsis schaffneriana ssp. recurva (referred to as Lilaeopsis in

this proposed rule), the Huachuca water umbel, is a plant found in

cienegas (desert marshes), streams and springs in southern Arizona and

northern Sonora, Mexico, typically in mid-elevation wetland communities

often surrounded by relatively arid environments. These communities are

usually associated with perennial springs and stream headwaters, have

permanently or seasonally saturated highly organic soils, and have a

low probability of flooding or scouring (Hendrickson and Minckley

1984). Cienegas support diverse assemblages of animals and plants,

including many species of limited distribution, such as Lilaeopsis

(Hendrickson and Minckley 1984, Lowe 1985, Ohmart and Anderson 1982,

Minckley and Brown 1982).

[[Page 71839]]

Cienegas, perennial streams, and rivers in the desert southwest are

extremely rare. The Arizona Game and Fish Department (1993) recently

estimated that riparian vegetation associated with perennial streams

comprises about 0.4 percent of the total land area of Arizona, with

present riparian areas being remnants of what once existed. The State

of Arizona (1990) estimated that up to 90 percent of the riparian

habitat along Arizona's major desert watercourses has been lost,

degraded, or altered in historical times. Lilaeopsis occupies small

portions of these rare habitats.

Lilaeopsis is an herbaceous, semiaquatic to occasionally fully

aquatic perennial plant with slender, erect leaves that grow from

creeping rhizomes. The leaves are cylindrical, hollow with no pith, and

have septa (thin partitions) at regular intervals. The yellow-green or

bright green leaves are generally 1-3 millimeters (mm) (0.04-0.12

inches (in.)) in diameter and often 3-5 centimeters (cm) (1-2 in.)

tall, but can reach up to 20 cm (8 in.) tall under favorable

conditions. Three to 10 very small flowers are borne on an umbel that

is always shorter than the leaves. The fruits are globose, 1.5-2 mm

(0.06-0.08 in.) in diameter, and usually slightly longer than wide

(Affolter 1985). The species reproduces sexually through flowering and

asexually from rhizomes (root-like stems); the latter probably being

the primary reproductive mode. An additional dispersal opportunity

occurs as a result of the dislodging of clumps of plants which then may

reroot at different sites along streams.

Lilaeopsis schaffneriana spp. recurva was first described by A.W.

Hill based on the type specimen collected near Tucson in 1881 (Hill

1926). Hill applied the name Lilaeopsis recurva to the specimen, and

the name prevailed until Affolter (1985) revised the genus. Affolter

applied the name L. schaffneriana ssp. recurva to plants found west of

the continental divide.

Previous Federal Action

We included Lilaeopsis schaffneriana ssp. recurva, then under the

name L. recurva, as a category 2 candidate in our November 28, 1983 (45

FR 82480), and September 27, 1985 (50 FR 39526), plant notices of

review. Category 2 candidates were defined as those taxa for which we

had data indicating that listing was possibly appropriate but for which

we lacked substantial information on vulnerability and threats to

support proposed listing rules. In our February 21, 1990 (55 FR 6184),

and September 30, 1993 (58 FR 51144), notices, we included Lilaeopsis

as a category 1 candidate. Category 1 candidates were defined as those

taxa for which we had sufficient information on biological

vulnerability and threats to support proposed listing rules but for

which issuance of proposals to list were precluded by other higher-

priority listing activities. Beginning with our combined plant and

animal notice of review published in the Federal Register on February

28, 1996 (61 FR 7596), we discontinued the designation of multiple

categories of candidates and only taxa meeting the definition of former

category 1 candidates are now recognized as candidates for listing

purposes.

On June 3, 1993, we received a petition, dated May 31, 1993, from a

coalition of conservation organizations (Suckling et al. 1993) to list

Lilaeopsis and two other species as endangered species pursuant to the

Act. On December 14, 1993, we published a notice of 90-day finding that

the petition presented substantial information indicating that listing

of Lilaeopsis may be warranted, and requested public comments and

biological data on the status of the species (58 FR 65325).

On April 3, 1995, we published a proposal (60 FR 16836) to list

Lilaeopsis and two other species as endangered, and again requested

public comments and biological data on their status. After

consideration of comments and information received during the comment

period, we listed Lilaeopsis as endangered on January 6, 1997.

Section 4(a)(3) of the Act requires that, to the maximum extent

prudent and determinable, we designate critical habitat at the time we

determine a species to be endangered or threatened.

[[Page 71840]]

At the time of listing, we determined that any potential benefits of

critical habitat beyond that of listing, when weighed against the

negative impacts of disclosing site-specific localities, did not yield

an overall benefit to the species, and, therefore, that designation of

critical habitat was not prudent.

On October 31, 1997, Southwest Center for Biological Diversity

filed a lawsuit in Federal District Court in Arizona against the

Department of Interior for failure to designate critical habitat for

the cactus ferruginous pygmy-owl (Glaucidium brasilianum cactorum) and

Lilaeopsis (Southwest Center for Biological Diversity v. Bruce Babbitt,

Secretary of the Department of the Interior; CIV 97-704 TUC ACM). On

October 7, 1998, Alfredo C. Marquez, Senior U.S. District Judge, issued

an order stating that ``There being no evidence that designation of

critical habitat for the pygmy-owl and water umbel is not prudent, the

Secretary shall, without further delay, decide whether or not to

designate critical habitat for the pygmy-owl and water umbel based on

the best scientific and commercial information available.''

On November 25, 1998, in response to the Plaintiff's motion to

clarify his initial order, Judge Marquez further ordered ``that within

30 days of the date of this Order, the Secretary shall issue the

Proposed Rules for designating critical habitat for the pygmy-owl and

water umbel . . . and that within six months of issuing the Proposed

Rules, the Secretary shall issue final decisions regarding the

designation of critical habitat for the pygmy-owl and water umbel.''

Absent the court's order, the processing of this proposed rule

would not conform with our Fiscal Year 1998 and 1999 Listing Priority

Guidance, published on May 8, 1998 (63 FR 25502). The guidance

clarifies the order in which we will process rulemakings giving highest

priority (Tier 1) to processing emergency rules to add species to the

Lists of Endangered and Threatened Wildlife and Plants; second priority

(Tier 2) to processing final determinations on proposals to add species

to the lists, processing new listing proposals, processing

administrative findings on petitions (to add species to the lists,

delist species, or reclassify listed species), and processing a limited

number of proposed and final rules to delist or reclassify species; and

third priority (Tier 3) to processing proposed and final rules

designating critical habitat. The Service's Southwest Region is

currently working on Tier 2 actions; however, we are undertaking this

Tier 3 action in order to comply with the above-mentioned court order.

Habitat Characteristics

The physical and biological habitat features essential to the

conservation of Lilaeopsis include a riparian plant community that is

stable over time and relatively free of nonnative species, a stream

channel that is stable and subject to periodic flooding, refugial sites

(sites safe from catastrophic flooding), and a permanently wetted

substrate (soil) for growth and reproduction of the plant.

Lilaeopsis has an opportunistic strategy that ensures its survival

in healthy riverine systems, cienegas, and springs. In upper watersheds

that generally do not experience scouring floods, Lilaeopsis occurs in

microsites (small isolated sites) where competition between different

plant species is low. At these sites, Lilaeopsis occurs on wetted soils

interspersed with other plants at low density, along the periphery of

the wetted channel, or in small openings in the understory. The upper

Santa Cruz River and associated springs in the San Rafael Valley, where

a population of Lilaeopsis occurs, is an example of a site that meets

these conditions. The types of microsites required by Lilaeopsis were

generally lost from the main stems of the San Pedro and Santa Cruz

Rivers when channel entrenchment occurred in the late 1800s. Habitat on

the upper San Pedro River is recovering, and Lilaeopsis has recently

recolonized small reaches of the main channel.

Lilaeopsis can occur in backwaters and side channels of streams and

rivers, and in nearby springs. After a flood, Lilaeopsis can rapidly

expand its population and occupy disturbed habitat until interspecific

competition exceeds its tolerance. This response was recorded at

Sonoita Creek in August 1988, when a scouring flood removed about 95

percent of the Lilaeopsis population (Gori et al. 1990). One year

later, Lilaeopsis had recolonized the stream and was again co-dominant

with Rorippa nasturtium-aquaticum (watercress) (Warren et al. 1991).

The expansion and contraction of Lilaeopsis populations appears to

depend on the presence of ``refugia'' where the species can escape the

effects of scouring floods, a watershed that has an unaltered flow

regime, and a healthy riparian community that stabilizes the channel.

Two patches of Lilaeopsis on the San Pedro River were lost during a

winter flood in 1994 and the species had still not recolonized that

area as of May of 1995, demonstrating the dynamic and often precarious

nature of occurrences within a riparian system (Al Anderson, Grey Hawk

Ranch, in litt. 1995).

Density of Lilaeopsis plants and size of populations fluctuate in

response to both flood cycles and site characteristics. Some sites,

such as Black Draw, have a few sparsely distributed clones, possibly

due to the dense shade of the even-aged overstory of trees and deeply

entrenched channel. The Sonoita Creek population occupies 14.5 percent

of a 500.5 square-meter (sq-m) (5,385 square-foot (sq-ft)) patch of

habitat (Gori et al. 1990). Some populations are as small as 1-2 sq-m

(11-22 sq-ft). The Scotia Canyon population, by contrast, has dense

mats of leaves. Scotia Canyon contains one of the larger Lilaeopsis

populations, occupying about 57 percent of the 1,450-m (4,756-ft)

perennial reach (Gori et al. 1990; Jim Abbott, Coronado National

Forest, in litt. 1994).

While the extent of occupied habitat can be estimated, the number

of individuals in each population is difficult to determine because of

the intermeshing nature of the creeping rhizomes and the predominantly

asexual mode of reproduction. A ``population'' of Lilaeopsis may be

composed of one or many genetically distinct individuals.

Introduction of Lilaeopsis into ponds on the San Bernardino

National Wildlife Refuge (Refuge) appears to be successful (Warren

1991). In 1991, Lilaeopsis was transplanted from Black Draw into new

ponds and other Refuge wetlands. Transplants placed in areas with low

plant density expanded rapidly (Warren 1991). In 1992, Lilaeopsis

naturally colonized a pond created in 1991. However, as plant

competition increased around the perimeter of the pond, the Lilaeopsis

population decreased. This response seems to confirm observations

(Kevin Cobble, San Bernardino National Wildlife Refuge, pers. comm.

1994; and Peter Warren, Arizona Nature Conservancy, pers. comm. 1993)

that other species such as Typha sp. will out-compete Lilaeopsis.

Lilaeopsis has been documented from 25 sites in Santa Cruz,

Cochise, and Pima counties, Arizona, and in adjacent Sonora, Mexico,

west of the continental divide (Saucedo 1990, Warren et al. 1989,

Warren et al. 1991, Warren and Reichenbacher 1991). The plant has been

extirpated from six of the sites. The 19 extant sites occur in 4 major

watersheds--San Pedro River, Santa Cruz River, Rio Yaqui, and Rio

Sonora. All sites are between 1,148-2,133 m (3,500-6,500 ft) elevation.

New information received during the comment periods and in section 7

[[Page 71841]]

conferences and consultations for proposed Federal actions has

indicated that some of these sites are larger in extent than previously

known. This is likely due to the dynamic nature of riparian habitats.

Nine Lilaeopsis populations occur in the San Pedro River watershed

in Arizona and Sonora, on sites owned or managed by private landowners,

the Fort Huachuca Military Reservation, the Coronado National Forest,

and the Bureau of Land Management's (BLM) Tucson Field Office. Two

extirpated populations in the upper San Pedro watershed occurred at

Zinn Pond in St. David and the San Pedro River near St. David. Cienega-

like habitats were probably common along the San Pedro River prior to

1900 (Hendrickson and Minckley 1984, Jackson et al. 1987), but these

habitats are now largely gone. Surveys conducted for wildlife habitat

assessment have found several discontinuous clumps of Lilaeopsis within

the upper San Pedro River where habitat was present in 1996 prior to

recent flooding (Mark Fredlake, BLM, pers. comm. 1996).

The four Lilaeopsis populations in the Santa Cruz watershed

probably represent very small remnants of larger populations that may

have occurred in the extensive riparian and aquatic habitat formerly

existing along the river. Before 1890, the spatially intermittent,

perennial flows on the middle Santa Cruz River most likely provided a

considerable amount of habitat for Lilaeopsis and other aquatic plants.

The middle section of the Santa Cruz River mainstem is about a 130-

kilometer (km) (80-mile (mi)) reach that flowed perennially from the

Tubac area south to the United States/Mexico border and intermittently

from Tubac north to the Tucson area (Davis 1986).

Davis, Jr. (1982) quotes from the July 1855, descriptive journal

entry of Julius Froebel while camped on the Santa Cruz River near

Tucson: `` * * * rapid brook, clear as crystal, and full of aquatic

plants, fish, and tortoises of various kinds, flowed through a small

meadow covered with shrubs. * * *. '' This habitat and species

assemblage no longer occurs in the Tucson area. In the upper watershed

of the middle Santa Cruz River, the species is now represented only by

a single population in two short reaches of Sonoita Creek. A population

at Monkey Spring in the upper watershed of the middle Santa Cruz River

has been extirpated, although suitable habitat exists (Warren at el.

1991).

Lilaeopsis remains in small areas (generally less than 1 sq-m (10.8

sq-ft)) in Black Draw, Cochise County, Arizona. Transplants from Black

Draw have been successfully established in nearby wetlands and ponds.

Recent renovation of House Pond on private land near Black Draw

extirpated the population on that pond.

Two Lilaeopsis populations occur in the Rio Yaqui watershed. The

species was recently discovered at Presa Cuquiarichi, in the Sierra de

los Ajos, several miles east of Cananea, Sonora (Tom Deecken, Coronado

National Forest, pers. comm. 1994). A population in the Rio San

Bernardino in Sonora was also recently extirpated (Gori et al. 1990).

One Lilaeopsis population occurs in the Rio Sonora watershed at Ojo de

Agua, a cienega in Sonora at the headwaters of the river (Saucedo

1990).

Critical Habitat

Critical habitat is defined in section 3 of the Act as--(i) the

specific areas within the geographic area occupied by a species, at the

time it is listed in accordance with the Act, on which are found those

physical or biological features (I) essential to the conservation of

the species and (II) that may require special management consideration

or protection and; (ii) specific areas outside the geographic area

occupied by a species at the time it is listed, upon determination that

such areas are essential for the conservation of the species.

``Conservation'' means the use of all methods and procedures that are

necessary to bring an endangered species or a threatened species to the

point at which listing under Act is no longer necessary.

Section 4(b)(2) of the Act requires us to base critical habitat

proposals upon the best scientific and commercial data available,

taking into consideration the economic impact, and any other relevant

impact, of specifying any particular area as critical habitat. We may

exclude areas from critical habitat designation when the benefits of

exclusion outweigh the benefits of including the areas within critical

habitat, provided the exclusion will not result in the extinction of

the species (section 4(b)(2) of the Act).

Designation of critical habitat can help focus conservation

activities for a listed species by identifying areas, both occupied and

unoccupied, that contain or could develop the essential habitat

features (primary constituent elements), described below, and that are

essential for the conservation of a listed species. Designation of

critical habitat alerts the public as well as land-managing agencies to

the importance of these areas.

Critical habitat also identifies areas that may require special

management considerations or protection, and may provide additional

protection to areas where significant threats to the species have been

identified. Critical habitat receives protection from the prohibition

against destruction or adverse modification through required

consultation under section 7 of the Act with regard to actions carried

out, funded, or authorized by a Federal agency. Section 7 also requires

conferences on Federal actions that are likely to result in the adverse

modification or destruction of proposed critical habitat. Aside from

the protection that may be provided under section 7, the Act does not

provide other forms of protection to lands designated as critical

habitat.

Section 7(a)(2) of the Act prohibits Federal agencies from funding,

authorizing, or carrying out actions likely to jeopardize the continued

existence of a threatened or endangered species, or that are likely to

destroy or adversely modify critical habitat. ``Jeopardize the

continued existence'' is defined as an appreciable reduction in the

likelihood of survival and recovery of a listed species. ``Destruction

or adverse modification'' of critical habitat occurs when a Federal

action significantly reduces the value of critical habitat for the

survival and recovery of the listed species for which critical habitat

was designated. Thus, the definitions of ``jeopardy'' to the species

and ``adverse modification'' of critical habitat are similar.

Designating critical habitat does not, in itself, lead to recovery

of a listed species. Designation does not create a management plan,

establish numerical population goals, prescribe specific management

actions (inside or outside of critical habitat), or directly affect

areas not designated as critical habitat. Specific management

recommendations for critical habitat are most appropriately addressed

in recovery plans and management plans, and through section 7

consultations.

Critical habitat identifies specific areas, both occupied and

unoccupied, that are essential to the conservation of a listed species

and that may require special management considerations or protection.

Areas that do not currently contain all of the primary constituent

elements but that could develop them in the future may be essential to

the conservation of the species and may be designated as critical

habitat.

Section 3(5)(C) of the Act generally requires that not all areas

potentially occupied by a species be designated as critical habitat.

Therefore, not all areas containing the primary constituent elements

are necessarily essential to the

[[Page 71842]]

conservation of the species. Areas that contain one or more of the

primary constituent elements, but that are not included within critical

habitat boundaries, may still be important to a species' conservation

and may be considered under other parts of the Act or other

conservation laws and regulations.

Primary Constituent Elements

In accordance with section 3(5)(A)(i) of the Act and regulations at

50 CFR 424.12, in determining which areas to propose as critical

habitat, we consider those physical and biological features (primary

constituent elements) that are essential to the conservation of the

species and that may require special management considerations or

protection. These include, but are not limited to, the following:

Space for individual and population growth, and for normal

behavior;

Food, water, air, light, minerals or other nutritional or

physiological requirements;

Cover or shelter;

Sites for breeding, reproduction, or rearing of offspring,

germination, or seed dispersal; and

Habitats that are protected from disturbance or are

representative of the historic geographical and ecological

distributions of a species.

The primary constituent elements of critical habitat for Lilaeopsis

include, but are not limited to, the habitat components that provide:

(1) Sufficient perennial base flows to provide a permanently wetted

substrate for growth and reproduction of Lilaeopsis;

(2) A stream channel that is stable and subject to periodic

flooding that provides for rejuvenation of the riparian plant community

and produces open microsites for Lilaeopsis expansion;

(3) A riparian plant community that is stable over time and in

which nonnative species do not exist or are at a density that has

little or no adverse effect on resources available for Lilaeopsis

growth and reproduction; and

(4) Refugial sites in each watershed and in each stream reach,

including but not limited to springs or backwaters of mainstem rivers,

that allow each population to survive catastrophic floods and

recolonize larger areas.

We selected critical habitat areas to provide for the conservation

of Lilaeopsis throughout the remaining portion of its geographic range

in the United States. At least one segment of critical habitat is

proposed in each watershed containing the species, with the exception

of the Rio Yaqui watershed where the plants are found on the San

Bernardino National Wildlife Refuge. That population is secure under

current management and, therefore, does not require special management

considerations or protection.

Proposed Critical Habitat Designation

The proposed critical habitat areas described below, combined with

protected areas either known or suspected to contain some of the

primary constituent elements but not proposed as critical habitat,

constitute our best assessment at this time of the areas needed for the

species' conservation. However, the Arizona Plant Recovery Team will be

providing guidance on the recovery planning for this species and may

provide additional guidance regarding the significance of areas

proposed for critical habitat as well as additional areas not yet

proposed. Upon the team's completion of recovery planning guidance, we

will evaluate the recommendations and reexamine if and where critical

habitat is appropriate.

Critical habitat being proposed for Lilaeopsis includes areas that

currently sustain the species and areas that do not currently sustain

the species but offer recovery habitat. Protection of this proposed

critical habitat would be essential for the conservation of the

species. The species is already extirpated from a significant portion

of its historical range. Eight disjunct areas are being proposed as

critical habitat; all proposed areas are in Santa Cruz and Cochise

counties, Arizona, and include stream courses and adjacent areas out to

the beginning of upland vegetation.

The following general areas are proposed as critical habitat (see

legal descriptions for exact critical habitat boundaries):

approximately 2.0 km (1.25 mi) of Sonoita Creek southwest of Sonoita;

approximately 4.4 km (2.7 mi) of the Santa Cruz River on both sides of

Forest Road 61, plus approximately 3 km (1.9 mi) of an unnamed

tributary to the east of the river; approximately 5.4 km (3.4 mi) of

Scotia Canyon upstream from near Forest Road 48; approximately 1.1 km

(0.7 mi) of Sunnyside Canyon near Forest Road 117 in the Huachuca

Mountains; approximately 6.1 km (3.8 mi) of Garden Canyon near its

confluence with Sawmill Canyon; approximately 3.5 km (2.2 mi) at Lone

Mountain Canyon, plus approximately 1.7 km (1.0 mi) of an unnamed

tributary and 1.8 km (1.1 mi) of Bear Creek; an approximate 0.7-km

(0.4-mi) reach of Joaquin Canyon; and approximately 54.2 km (33.7 mi)

of the San Pedro River from the perennial flows reach north of Fairbank

(1991 DWR) to 200 m south of Hereford, San Pedro Riparian National

Conservation Area.

Although the majority of the land being proposed for critical

habitat designation is under Federal administration and management,

some riparian systems on private land are being proposed. The Sonoita

Creek segment and the San Rafael Valley segment within the Santa Cruz

River drainage are privately owned. The sites in the Huachuca Mountains

(Scotia, Sunnyside, Bear, Joaquin and a tributary of Lone Mountain,

canyons) are managed by the Coronado National Forest. The San Pedro

Riparian National Conservation Area is managed by the BLM. The Garden

Canyon segment is managed by the Fort Huachuca Military Reservation.

We are not proposing critical habitat for the four populations

occurring in Mexico because areas outside the United States are not

considered for critical habitat designation (50 CFR 424.12(h)). Also, a

population occurring on Turkey Creek, Canelo Hills is small and the

habitat is probably not capable of supporting a large population.

Similarly, the spring sites of Sawmill Spring, Sycamore Spring, Mud

Spring and Freeman Springs also are too small to support large stable

populations. We believe these isolated sites are not essential to the

conservation of the species and, therefore, are not including them in

proposed critical habitat.

Available Conservation Measures

Conservation measures provided to species listed as endangered or

threatened under the Act include recognition, recovery actions,

requirements for Federal protection, and prohibitions against certain

practices. Recognition through listing encourages and results in

conservation actions by Federal, State, and private agencies, groups,

and individuals. The Act provides for possible land acquisition and

cooperation with the States and requires that recovery actions be

carried out for all listed species. The protection required of Federal

agencies and the prohibitions against certain activities involving

listed species are discussed, in part, below.

Section 7(a) of the Act requires Federal agencies to evaluate their

actions with respect to any species that is proposed or listed as

endangered or threatened and with respect to its critical habitat, if

any is designated or proposed. Regulations implementing this

interagency cooperation provision of the Act are codified at 50 CFR

part 402. Section 7(a)(4) requires Federal agencies to confer with us

on any action

[[Page 71843]]

that is likely to jeopardize the continued existence of a proposed

species or result in destruction or adverse modification of proposed

critical habitat. If a species is listed or critical habitat is

designated subsequently, section 7(a)(2) requires Federal agencies to

ensure that activities they authorize, fund, or carry out are not

likely to jeopardize the continued existence of such a species or to

destroy or adversely modify its critical habitat. If a Federal action

may affect a listed species or its critical habitat, the responsible

Federal agency must enter into consultation with us.

Section 7(a)(4) of the Act and regulations at 50 CFR 402.10 require

Federal agencies to confer with us on any action that is likely to

result in destruction or adverse modification of proposed critical

habitat. Regulations at 50 CFR 402.16 require Federal agencies to

reinitiate consultation on previously reviewed actions in instances

where critical habitat is subsequently designated. Consequently, some

Federal agencies may request conference with us on actions for which

formal consultation has been completed. Conference reports provide

conservation recommendations to assist the agency in eliminating

conflicts that may be caused by the proposed action. The conservation

recommendations in a conference report are advisory.

We may issue a formal conference report if requested by a Federal

agency. Formal conference reports on proposed critical habitat contain

a biological opinion that is prepared according to 50 CFR 402.14, as if

critical habitat were designated. We may adopt the formal conference

report as the biological opinion when the critical habitat is

designated, if no significant new information or changes in the action

alter the content of the opinion (see 50 CFR 402.10(d)).

Activities on Federal lands that may affect Lilaeopsis or its

critical habitat will require section 7 consultation. Activities on

private or State lands requiring a permit from a Federal agency, such

as a permit from the U.S. Army Corps of Engineers under section 404 of

the Clean Water Act, would also be subject to the section 7

consultation process. Federal actions not affecting the species, as

well as actions on non-Federal lands that are not federally funded or

permitted would not require section 7 consultation.

Section 4(b)(8) of the Act requires us to describe in any proposed

or final regulation that designates critical habitat those activities

involving a Federal action that may destroy or adversely modify such

habitat or that may be affected by such designation. Activities that

may destroy or adversely modify critical habitat include those that

alter the primary constituent elements to the extent that the value of

critical habitat for both the survival and recovery of Lilaeopsis is

appreciably reduced. We note that such activities may also jeopardize

the continued existence of the species. Such activities may include but

are not limited to:

(1) Activities such as damming, water diversion, channelization,

excess groundwater pumping, or other actions that appreciably decrease

base flow and appreciably reduce the wetted surface area of perennial

rivers or springs;

(2) Activities that alter watershed characteristics in ways that

would appreciably reduce groundwater recharge or alter natural flooding

regimes needed to maintain natural, dynamic riparian communities. Such

activities adverse to Lilaeopsis could include, but are not limited to,

vegetation manipulation such as chaining or harvesting timber;

maintaining an unnatural fire regime either through fire suppression or

too frequent or poorly-timed prescribed fires; mining; military

maneuvers including bombing and tank operations; residential and

commercial development, including road building; and livestock

overgrazing;

(3) Activities that appreciably degrade or destroy native riparian

communities, including but not limited to livestock overgrazing,

clearing, cutting of live trees, introducing or encouraging the spread

of nonnative species, and heavy recreational use; and

(4) Activities that appreciably alter stream channel morphology

such as sand and gravel mining, road construction, channelization,

impoundment, overgrazing by livestock, watershed disturbances, off-road

vehicle use, heavy or poorly planned recreational use, and other uses.

Designation of critical habitat could affect the following agencies

and/or actions including, but not limited to, managing recreation, road

construction, livestock grazing, granting rights-of-way, timber

harvesting, and other actions funded, authorized, or carried out by the

Forest Service or BLM. Permitting of some military activities on Fort

Huachuca may be affected by designation. Development on private or

State lands requiring permits from Federal agencies, such as 404

permits from the U.S. Army Corps of Engineers, would also be subject to

the section 7 consultation process.

If you have questions regarding whether specific activities will

likely constitute adverse modification of critical habitat, contact the

Field Supervisor, Arizona Ecological Services Field Office (see

ADDRESSES section). Requests for copies of the regulations on listed

wildlife and inquiries about prohibitions and permits may be addressed

to the U.S. Fish and Wildlife Service, Branch of Endangered Species/

Permits, P.O. Box 1306, Albuquerque, New Mexico 87103 (telephone (505)

248-6920, facsimile (505) 248-6922).

Economic Analysis

Section 4(b)(2) of the Act requires us to designate critical

habitat on the basis of the best scientific and commercial information

available and to consider the economic and other relevant impacts of

designating a particular area as critical habitat. We may exclude areas

from critical habitat upon a determination that the benefits of such

exclusions outweigh the benefits of specifying such areas as part of

critical habitat. We cannot exclude such areas from critical habitat if

such exclusion would result in the extinction of the species concerned.

We will conduct an economic analysis for this proposal prior to a final

determination.

Public Comments Solicited

It is our intent that any final action resulting from this proposal

will be as accurate and as effective as possible. Therefore, we solicit

comments or suggestions from the public, other concerned governmental

agencies, the scientific community, industry, or any other interested

party concerning this proposed rule. We particularly seek comments

concerning:

(1) The reasons why any habitat should or should not be determined

to be critical habitat as provided by section 4 of the Act, including

whether the benefit of designation will outweigh any threats to the

species due to designation;

(2) Specific information on the amount and distribution of

Lilaeopsis habitat, and what habitat is essential to the conservation

of the species and why;

(3) Land use designations and current or planned activities in the

subject areas and their possible impacts on proposed critical habitat;

(4) Any foreseeable economic or other impacts resulting from the

proposed designation of critical habitat, in particular, any impacts on

small entities or families;

(5) Economic and other values associated with designating critical

habitat for Lilaeopsis such as those derived from non-consumptive uses

(e.g., hiking, camping, bird-watching, enhanced watershed protection,

improved air quality, increased soil retention, ``existence values,''

and reductions in administrative costs); and

[[Page 71844]]

(6) The methodology we might use, under section 4(b)(2) of the Act,

in determining if the benefits of excluding an area from critical

habitat outweigh the benefits of specifying the area as critical

habitat.

In accordance with our policy published on July 1, 1994 (59 FR

34270), we will solicit the expert opinions of three appropriate and

independent specialists regarding this proposed rule. The purpose of

such review is to ensure listing decisions are based on scientifically

sound data, assumptions, and analyses. We will send to these peer

reviewers copies of this proposed rule immediately following

publication in the Federal Register. We will invite peer reviewers to

comment, during the public comment period, on the specific assumptions

and conclusions regarding the proposed designation of critical habitat.

We will consider all comments and information received during the

60-day comment period on this proposed rule during preparation of a

final rulemaking. Accordingly, the final determination may differ from

this proposal.

Public Hearings

The Act provides for one or more public hearings on this proposal,

if requested. We intend to schedule one public hearing regarding this

proposal. We will announce the date, time and place of that hearing in

the Federal Register and local newspapers at least 15 days prior to the

hearing.

Executive Order 12866

Executive order 12866 requires each agency to write regulations/

notices that are easy to understand. We invite your comments on how to

make this notice easier to understand including answers to questions

such as the following: (1) Are the requirements in the notice clearly

stated? (2) Does the notice contain technical language or jargon that

interferes with the clarity? (3) Does the format of the notice

(grouping and order of sections, use of headings, paragraphing, etc.)

aid or reduce its clarity? (4) Is the description of the notice in the

``Supplementary Information'' section of the preamble helpful in

understanding the notice? What else could we do to make the notice

easier to understand?

Send a copy of any comments that concern how we could make this

notice easier to understand to: Office of Regulatory Affairs,

Department of the Interior, Room 7229, 1849 C Street, NW, Washington,

DC 20240. You may e-mail your comments to this address:

E[email protected].

Required Determinations

1. Regulatory Planning and Review

In accordance with Executive Order 12866, this action was submitted

for review by the Office of Management and Budget. Following issuance

of this proposed rule, we will prepare an economic analysis to

determine the economic consequences of designating the specific areas

identified as critical habitat. If our economic analysis reveals that

the economic impacts of designating any area as critical habitat

outweigh the benefits of designation, we will exclude those areas from

consideration, unless such exclusion will result in the extinction of

the species. In the economic analysis, we will address any possible

inconsistencies with other agencies' actions and any effects on

entitlements, grants, user fees, loan programs, or the rights and

obligations of their recipients. This rule will not raise novel legal

or policy issues.

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

In the economic analysis, we will determine whether designation of

critical habitat will have a significant effect on a substantial number

of small entities.

3. Small Business Regulatory Enforcement Fairness Act (5 U.S.C.

804(2)).

In the economic analysis, we will determine whether designation of

critical habitat will cause (a) any effect on the economy of $100

million or more, (b) any increases in costs or prices for consumers,

individual industries, Federal, State, or local government agencies, or

geographic regions in the economic analysis, or (c) any significant

adverse effects on competition, employment, investment, productivity,

innovation, or the ability of U.S.-based enterprises to compete with

foreign-based enterprises.

4. Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

In the economic analysis, we will address any effects to small

governments resulting from designation of critical habitat and any

Federal mandate of $100 million or greater in any year.

5. Takings

In accordance with Executive Order 12630, this rule does not have

significant takings implications, and a takings implication assessment

is not required. This proposed rule, if made final, will not ``take''

private property and will not alter the value of private property.

Critical habitat designation is only applicable to Federal lands and to

private lands if a Federal nexus exists. We do not designate private

lands as critical habitat unless the areas are essential to the

conservation of a species.

6. Federalism

This proposed rule, if made final, will not affect the structure or

role of States, and will not have direct, substantial, or significant

effects on States. As previously stated, critical habitat is only

applicable to Federal lands and to non-Federal lands when a Federal

nexus exists. If our economic analysis reveals that the economic

impacts of designating any area of State concern as critical habitat

outweigh the benefits of designation, we will exclude those areas from

consideration, unless such exclusion will result in the extinction of

the species.

7. Civil Justice Reform

In accordance with Executive Order 12988, the Department of the

Interior's Office of the Solicitor has determined that this rule does

not unduly burden the judicial system and does meet the requirements of

sections 3(a) and 3(b)(2) of the Order. The Office of the Solicitor

also will review the final determination for this proposal. We will

make every effort to ensure that the final determination contains no

drafting errors, provides clear standards, simplifies procedures,

reduces burden, and is clearly written such that litigation risk is

minimized.

8. Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

This rule does not contain any information collection requirements

for which Office of Management and Budget approval under the Paperwork

Reduction Act is required.

9. National Environmental Policy Act

We have analyzed this rule in accordance with the criteria of the

National Environmental Policy Act. We have determined that this rule

does not constitute a major Federal action significantly affecting the

quality of the human environment. This proposed designation of critical

habitat, and the resulting final determination, will not require any

actions that will affect the environment. No construction or

destruction in any form is required under the provisions of critical

habitat.

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10. Government-to-Government Relationship With Tribes

In accordance with the President's memorandum of April 29, 1994,

``Government-to-Government Relations With Native American Tribal

Governments'' (59 FR 22951) and 512 DM 2: We understand that we must

relate to federally recognized Tribes on a Government-to-Government

basis. Secretarial Order 3206 American Indian Tribal Rights, Federal-

Tribal Trust Responsibilities and the Endangered Species Act states

that ``Critical habitat shall not be designated in such areas [an area

that may impact Tribal trust resources] unless it is determined

essential to conserve a listed species. In designating critical

habitat, the Service shall evaluate and document the extent to which

the conservation needs of a listed species can be achieved by limiting

the designation to other lands.'' The proposed designation of critical

habitat for the water umbel does not contain any Tribal lands or lands

that we have identified as impacting Tribal trust resources.

References Cited

A complete list of all references cited in this proposed rule is

available upon request from the Arizona Ecological Services Field

Office (see ADDRESSES section).

Authors. The primary authors of this notice are Jim Rorabaugh and

Angela Brooks (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

Endangered and threatened species, Exports, Imports, Reporting and

recordkeeping requirements, Transportation.

Proposed Regulation Promulgation

For the reasons given in the preamble, we propose to amend 50 CFR

part 17 as set forth below:

PART 17--[AMENDED]

1. The authority citation for part 17 continues to read as follows:

Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.

4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

2. In Sec. 17.12(h) revise the entry for ``Lilaeopsis schaffneriana

ssp. recurva'' under ``FLOWERING PLANTS'' to read as follows:

Sec. 17.12 Endangered and threatened plants.

* * * * *

(h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------

Species

-------------------------------------------------------- Historic range Family Status When Critical Special

Scientific name Common name listed habitat rules

--------------------------------------------------------------------------------------------------------------------------------------------------------

Flowering Plants

* * * * * * *

Lilaeopsis schaffneriana ssp. Huachuca water umbel U.S.A. (AZ), Mexico. Apiaceae............ E 600 17.96(a) NA

recurva.

* * * * * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------

3. In Sec. 17.96 add critical habitat for Lilaeopsis schaffneriana

ssp. recurva, Huachuca water umbel, as the first entry under paragraph

(a) to read as follows:

Sec. 17.96 Critical habitat--plants.

(a) Flowering plants.

Family Apiaceae: Lilaeopsis schaffneriana ssp. recurva (Huachuca water

umbel)

1. Critical habitat units are depicted for Santa Cruz and

Cochise counties, Arizona, on the maps below.

2. Critical habitat includes the stream courses identified on

the maps below and adjacent areas out to the beginning of upland

vegetation.

3. Within these areas, the primary constituent elements include,

but are not limited to, the habitat components which provide--(1)

Sufficient perennial base flows to provide a permanently wetted

substrate for growth and reproduction of Lilaeopsis schaffneriana

ssp. recurva; (2) A stream channel that is stable and subject to

periodic flooding that provides for rejuvenation of the riparian

plant community and produces open microsites for Lilaeopsis

expansion; (3) A riparian plant community that is stable over time

and in which nonnative species do not exist or are at a density that

has little or no adverse effect on resources available for

Lilaeopsis growth and reproduction; and (4) Refugial sites in each

watershed and in each stream reach, including but not limited to

springs or backwaters of mainstem rivers, that allow each population

to survive catastrophic events and recolonize larger areas.

Map Unit 1. Santa Cruz County, Arizona. From USGS 7.5'

quadrangle map Sonoita, Arizona. Gila and Salt Principal Meridian,

Arizona: T. 20 S., R. 16 E., beginning at a point on Sonoita Creek

in sec. 34 at approx. 31 deg. 39' 19'' N latitude and 110 deg. 41'

52'' W longitude proceeding downstream (westerly) to a point in sec.

33 at approx. 31 deg. 39' 07'' N latitude and 110 deg. 42' 46'' W

longitude covering approx. 2 km (1.25 mi.).

Map Unit 2. Santa Cruz County, Arizona. From USGS 7.5'

quadrangle map Lochiel, Arizona. That portion of the Santa Cruz

River beginning in the San Rafael De La Zanja Grant approx. at

31 deg. 22' 30'' N latitude and 110 deg. 35' 45'' W longitude

downstream (southerly) to Gila and Salt Principal Meridian, Arizona,

T. 24 S., R. 17 E., through secs. 11 and 14, to the south boundary

of sec. 14 covering approx. 4.4 km (2.7 mi.). Also, a tributary that

begins in T. 24 S., R. 17 E., sec. 13 at approx. 31 deg. 21' 10'' N

latitude and 110 deg. 34' 16'' W longitude downstream

(southwesterly) to its confluence with the Santa Cruz River covering

approx. 3 km (1.9 mi.).

Map Unit 3. Cochise County, Arizona. From USGS 7.5' quadrangle

map Huachuca Peak, Arizona. Gila and Salt Principal Meridian,

Arizona: That portion of Scotia Canyon beginning in T. 23 S., R. 19

E., sec. 3 at approx. 31 deg. 27' 19'' N latitude and 110 deg. 23'

44'' W longitude downstream (southwesterly) through secs. 10, 9, 16

and to approx. 31 deg. 25' 22'' N latitude and 110 deg. 25' 22'' W

longitude in sec. 21 covering approx. 5.4 km (3.4 mi.).

Map Unit 4. Cochise County, Arizona. From USGS 7.5' quadrangle

map Huachuca Peak, Arizona. Gila and Salt Principal Meridian,

Arizona: That portion of Sunnyside Canyon beginning in T. 23 S., R.

19 E., on the east boundary of sec. 10 downstream (southwesterly) to

the south boundary of sec. 10 covering approx. 1.1 km (0.7 mi.).

Map Unit 5. Cochise County, Arizona. From USGS 7.5' quadrangle

map Miller Peak, Arizona. That portion of Garden Canyon in the Fort

Huachuca Military Reservation beginning at approx. 31 deg. 27' 13''

N latitude and 110 deg. 22' 33'' W longitude downstream

(northwesterly) to approx. 31 deg. 28' 45'' N latitude and 110 deg.

20' 11'' W longitude covering approx. 6.1 km (3.8 mi.).

Map Unit 6. Cochise County, Arizona. From USGS 7.5' quadrangle

map Miller Peak, Arizona. Gila and Salt Principal Meridian, Arizona:

That portion of Lone Mountain Canyon beginning at a point in T. 23

S., R. 19 E., sec. 25 at approx. 31 deg. 24' 13'' N latitude and

110 deg. 21' 54'' W longitude downstream south through sec. 36 to a

point in T. 24 S.,

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R. 19 E., sec. 1 at approx. 31 deg. 22' 30'' N latitude and

110 deg.21' 47'' W longitude covering approx. 3.5 km (2.2 mi.).

Also, an unnamed tributary beginning at a point in T. 23 S., R. 19

E., sec. 25 at approx. 31 deg. 24' 08'' N latitude and 110 deg. 21'

32'' W longitude downstream (southwesterly) to its confluence with

Lone Mountain Canyon covering approx. 1.7 km (1.0 mi.). Also, that

portion of Bear Creek beginning at a point in T. 23 S., R. 20 E.,

sec. 30 at approx. 31 deg. 23' 44'' N latitude and 110 deg. 21' 14''

W longitude downstream (southerly) through sec. 31, and T. 23 S., R.

19 E., sec. 36 to its confluence with Lone Mountain Canyon covering

approx. 1.8 km (1.1 mi.).

Map Unit 7. Cochise County, Arizona. From USGS 7.5' quadrangle

maps Montezuma Pass, Arizona, Campini Mesa, Arizona. Gila and Salt

Principal Meridian, Arizona: that portion of Joaquin Canyon

beginning at a point in T. 24 S., R. 19 E., sec. 14 at approx.

31 deg. 20' 53'' N latitude and 110 deg. 22' 40'' W longitude

downstream (southwesterly) to a point in sec. 13 at approx. 31 deg.

20' 37'' N latitude and 110 deg. 22' 27'' W longitude covering

approx. 0.7 km (0.4 mi.).

Map Unit 8. Cochise County, Arizona. From USGS 7.5' quadrangle

maps: Hereford, Ariz.; Tombstone SE, Ariz.; Nicksville, Ariz.; Lewis

Springs, Ariz.; Fairbank, Ariz.; Land, Ariz. Gila and Salt Principal

Meridian, Arizona: That portion of the San Pedro River beginning in

the San Rafael Del Valle Grant at a point approx. 200 meters

upstream (south) of the Hereford Road bridge at approx. 31 deg.26'

16'' N latitude and 110 deg. 06' 24'' W longitude continuing

downstream (northerly) through the San Rafael Del Valle Grant; T. 21

S., R. 22 E.; T. 21 S., R 21 S.; through the San Juan De Las

Boquilla y Nogales Grant to a point at approx. 31 deg. 48' 28'' N

latitude and 110 deg. 12' 32'' W longitude covering approx. 54.2 km

(33.7 mi.).

Note: Maps follow:

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* * * * *

Dated: December 22, 1998.

Donald Barry,

Assistant Secretary for Fish and Wildlife and Parks.

[FR Doc. 98-34413 Filed 12-23-98; 3:59 pm]

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