Endangered and Threatened Wildlife and Plants; Designation 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; Designation of

Critical Habitat for the Huachuca Water Umbel, a Plant

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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

critical habitat pursuant to the Endangered Species Act of 1973, as

amended (Act), for the plant Lilaeopsis schaffneriana var. recurva

(Huachuca water umbel). Designated habitat includes a total of 83.2

kilometers (km) (51.7 miles (mi)) of streams or rivers in Cochise and

Santa Cruz counties, Arizona. Section 7 of the Act prohibits

destruction or adverse modification of critical habitat by any activity

funded, authorized, or carried out by any Federal agency. As required

by section 4 of the Act, we considered economic and other relevant

impacts prior to making a final decision on the size and configuration

of critical habitat.

EFFECTIVE DATE: August 11, 1999.

ADDRESSES: The complete administrative record for this rule is on file

at the U.S. Fish and Wildlife Service, Arizona Ecological Services

Field Office, 2321 West Royal Palm Road, Suite 103, Phoenix, Arizona

85021-4951. The complete file for this rule is 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 var. recurva (referred to as Lilaeopsis in

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

cienegas (desert marshes), rivers, 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).

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 (root-like stems). 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; 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 (48

FR 53640), 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. 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, the 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

[[Page 37442]]

Center for Biological Diversity v. Babbitt, 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.'' A

rule proposing 83.9 kilometers (km) (52.1 miles (mi)) of streams and

rivers in Cochise and Santa Cruz counties, Arizona, as critical habitat

for Lilaeopsis was published December 30, 1998.

The processing of the December 30, 1998, proposed rule and this

final rule does not conform with our Listing Priority Guidance for

Fiscal Years 1998 and 1999, 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. Our 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

fairly stable over time and not dominated by nonnative plant species, a

stream channel that is relatively stable but subject to periodic

flooding, refugial sites (sites safe from catastrophic flooding), and a

substrate (soil) that is permanently wet or nearly so, 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 among 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).

In rivers and streams, 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 1995, demonstrating the

dynamic and often precarious nature of occurrences within a riparian

system (Al Anderson, Grey Hawk Ranch, in litt. 1995).

The 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 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 Huachuca water

umbel populations, where in 1995 it occupied about 64 percent of a

1,420-m (4,660-ft) reach (Falk 1998).

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 and

Leslie Canyon National Wildlife Refuges, Arizona, appears to be

successful (Warren 1991; Kevin Cobble, San Bernardino National Wildlife

Refuge, pers. comm. 1999). In 1991, Lilaeopsis was transplanted from

Black Draw into new ponds and other wetlands at San Bernardino Refuge.

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, Service, pers. comm. 1994; and

Peter Warren, Arizona Nature Conservancy, pers. comm. 1993) that other

species such as Typha sp. will out-compete Lilaeopsis. A recent

introduction to Leslie Canyon Refuge is successful and the plant

appears to be expanding its distribution there (K. Cobble, pers. comm.

1999).

Lilaeopsis has been documented from 26 sites in Santa Cruz,

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

west of the continental divide (K. Cobble, pers. comm. 1999; Haas and

Frye 1997; 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 20 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.

Nine Lilaeopsis populations occur in the San Pedro River watershed

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

Fort Huachuca Military Reservation, the Coronado National Forest, and

the Bureau of Land Management's (BLM)

[[Page 37443]]

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-km

(80-mi) reach that flowed perennially from the United States/Mexico

border northward to Tubac area and intermittently from Tubac north to

the Tucson area (Davis 1986).

Davis (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 et al. 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,

including Leslie Canyon. A population at House Pond on private land

near Black Draw was thought to be extirpated, but was recently

rediscovered there (K. Cobble, pers. comm. 1999).

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 recently extirpated (Gori et al. 1990), but

another population was found in 1997 on Cajon Bonito near its

confluence with Black Draw in Sonora (K. Cobble, pers. comm. 1999). 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 the Act is no longer necessary.

Section 4(b)(2) of the Act requires that we 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 that contain the

physical and biological features essential for the conservation of that

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 requires Federal agencies to consult

with us to ensure that any action authorized, funded, or carried out is

not likely to jeopardize the continued existence of a threatened or

endangered species, or result in the destruction or adverse

modification of critical habitat. ``Jeopardize the continued

existence'' (of a species) is defined as an appreciable reduction in

the likelihood of survival and recovery of a listed species.

``Destruction or adverse modification'' (of critical habitat) is

defined as a direct or indirect alteration that appreciably diminishes

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 nearly identical (50 CFR Sec. 402.02).

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, 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 habitat components necessary for the primary biological needs

of a species 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 states that, ``except in those

circumstances determined by the Secretary, critical habitat shall not

include the entire geographical area which can be occupied by the

threatened or endangered species.'' All areas containing the primary

constituent elements are not necessarily essential to the conservation

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

constituent elements, but that are not included within critical habitat

[[Page 37444]]

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 Sec. 424.12, in determining which areas to propose as critical

habitat, we consider those physical and biological features 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 or

nearly permanently wetted substrate for growth and reproduction of

Lilaeopsis;

(2) A stream channel that is relatively stable, but 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 relatively 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) In streams and rivers, refugial sites in each watershed and in

each 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

designated 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.

Critical Habitat Designation

The critical habitat areas described below, combined with other

habitat either known or suspected to contain some of the primary

constituent elements but not in need of special management, 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 recovery planning for this species and may

provide additional guidance regarding the significance of areas

designated as critical habitat or the need to designate other areas.

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 designated for Lilaeopsis includes areas that

currently sustain the species and areas that do not currently sustain

the species but offer recovery habitat. The species is already

extirpated from a significant portion of its historical range. Seven

disjunct areas are designated 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 designated 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 1.6 km (1.0 mi) of Lone

Mountain Canyon and approximately 1.6 km (1.0 mi) of Rattlesnake Canyon

and 1.0 km (0.6 mi) of an unnamed canyon, both of which are tributaries

to Lone Mountain Canyon; approximately 1.6 km (1.0 mi) of Bear Canyon;

an approximate 0.9-km (0.6-mi) reach of an unnamed tributary to Bear

Canyon; and approximately 54.2 km (33.7 mi) of the San Pedro River from

the perennial flows reach north of Fairbank (Arizona Department of

Water Resources 1991) to 200 meters (.13 mi) south of Hereford, San

Pedro Riparian National Conservation Area.

Although the majority of lands designated as critical habitat is

under Federal administration and management, some riparian systems on

private land are being designated. The Sonoita Creek segment and the

San Rafael Valley segment within the Santa Cruz River drainage are

privately owned. The upper portion of Scotia Canyon is privately owned,

but is expected to soon be acquired through land exchange by the

Coronado National Forest. Other sites in the Huachuca Mountains (lower

Scotia Canyon, Sunnyside, Bear, and Lone Mountain canyons, and

tributaries of the latter two 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.

Several areas where Lilaeopsis occurs are not designated as

critical habitat. We recognize the importance of all lands occupied or

potentially occupied by Lilaeopsis, but, as discussed below, not all

such areas were designated because some did not meet the designation

criteria (i.e., were too small to support a stable Lilaeopsis

population over time, and/or were already protected). Also, areas

outside the United States are not considered for critical habitat

designation (50 CFR 424.12(h)). Several sites were considered small and

not capable of supporting large stable populations, including Turkey

Creek in the Canelo Hills, Sawmill Spring, Sycamore Spring, Mud Spring,

and Freeman Springs.

We believe these small, isolated sites are important, but may not

be essential to the conservation of the species, and in the case of

Sawmill Spring and Freeman Spring, may not require special management

considerations or protection above that currently provided. Freeman

Spring is fenced to prevent livestock grazing. Sawmill Spring is an

isolated site near the western boundary of Fort Huachuca at which the

only significant threats are a trail to the site and wildfire.

Recreational use along the trail does not appear to be adversely

affecting the species, and Fort Huachuca has committed to various

measures to lessen the threat of wildfire.

Also not designated are portions of Bear Canyon above and below the

critical habitat reach and several isolated populations in the Bear and

Lone Mountain canyons complex. We believe the best habitat in this area

is included in the designated reaches of the two canyons and their

tributaries. Other reaches are intermittent with limited habitat for

Lilaeopsis, or are

[[Page 37445]]

small, relatively isolated sites. Also, designation of the critical

habitat reach provides some protection to at least the downstream reach

of Bear Canyon due to conservation of watershed values.

The 0.7-km (0.4-mi) reach of Joaquin Canyon, proposed as Unit 7, is

also not designated. This reach is currently administered by the

Coronado National Forest, but is expected to be exchanged into private

ownership in the near future. During the open comment period, we met

with both the Coronado National Forest and prospective new landowners.

Through these discussions we learned that the future owners plan to

continue current grazing practices, but no other uses of the property

are anticipated. Further, the effects of grazing are moderated at this

site because the stream channel is largely bedrock and not easily

subject to structural damage. Thus, we do not consider this area to be

in need of special management consideration or protection. In summary,

because of the small size of the Joaquin Canyon habitat and the low

degree of threats to the area, we did not designate this area as

critical habitat, because it is neither essential to the conservation

of the species nor in need of special management or protection. The

area proposed as Unit 8 now becomes Unit 7.

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)(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. Conferencing on Lilaeopsis critical habitat was requested

twice, including once by the Department of the Army, Fort Huachuca, in

regard to military activities, and once by the Coronado National Forest

on their forest-wide grazing program. These conferences are not yet

complete. With designation of critical habitat, these conferences are

now section 7 consultations.

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, will 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 will

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 diminished. We note that such activities will also likely

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 rivers,

streams, cienegas, 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 critical habitat 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; road construction; and

overgrazing that reduces fire frequency or otherwise degrades

watersheds;

(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, 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. These activities are already

subject to section 7 consultation because of the listing of Lilaeopsis.

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).

Summary of Comments and Recommendations

In the December 30, 1998, proposed rule to designate critical

habitat, we requested all interested parties to submit comments or

information that might bear on the listing or designation of critical

habitat for Lilaeopsis. The first comment period closed March 1, 1999.

We reopened the comment period from April 15 to May 15, 1999, to once

again solicit comments on the proposed

[[Page 37446]]

rule and to accept comments on the draft economic analysis. Comments

received from March 2 to April 14, 1999, were entered into the

administrative record during the second comment period. All appropriate

State agencies, Federal agencies, County governments, scientific

organizations, and other interested parties were contacted and invited

to comment. We published newspaper notices inviting public comment in

the following newspapers in Arizona: Arizona Republic, Tucson Citizen,

Arizona Daily Star, Sierra Vista Herald, Green Valley News and Sun, The

Bulletin, The Tombstone Tumbleweed, and Nogales International. The

inclusive dates of publication were January 4 to 12, 1999, for the

initial comment period; January 26 to February 4, 1999, to advertise

the public hearings; and April 21 to 29, 1999, for the second comment

period.

We held three public hearings on the proposed rule, at Coolidge

(February 10, 1999), Sierra Vista (February 11, 1999), and Tucson,

Arizona (February 12, 1999). The hearings were also held to solicit

comments on the proposed rule to designate critical habitat for the

cactus ferruginous pygmy-owl, Glaucidium brasilianum cactorum (63 FR

71820). A notice of hearings and locations was published in the Federal

Register on January 26, 1999 (64 FR 3923). A total of 89 people

attended the public hearings, including 10 in Coolidge, 28 in Sierra

Vista, and 51 in Tucson. Transcripts of these hearings are available

for inspection (see ADDRESSES section).

We contacted three experts on the species that agreed to peer

review the proposed critical habitat designation. One of those peer

reviewers submitted comments. He concluded that ``the habitat sites

designated, to the best of my knowledge, seem reasonable enough to

guarantee its (Lilaeopsis') survival--even though I would prefer

additional ones.''

A total of 8 oral and 41 written comments were received during the

two comment periods. Of the 8 oral comments, 3 supported critical

habitat designation, 4 were opposed to designation, and 1 provided

additional information but did not support or oppose the proposal. Of

the written comments, 22 supported designation, 9 were opposed to it,

and 10 provided additional information only, or were nonsubstantive or

not relevant to the proposed designation. In total, oral and written

comments were received from 5 Federal agencies, 2 State agencies, 4

local governments, and 38 private organizations, companies, or

individuals.

We reviewed all comments received for substantive issues and new

data regarding critical habitat and Lilaeopsis. Comments of a similar

nature are grouped into a number of general issues. Fifteen general

issues were identified relating specifically to critical habitat. These

are addressed in the following summary.

Issue 1: The Service did not allow for an appropriate level of

local government involvement in the designation of critical habitat.

Several commenters said that cities and counties should have greater

say in critical habitat designations, while one commenter would have us

not consider comments from local governments.

Service Response: The Act requires that we ``give actual notice of

the proposed regulation (including the complete text of the regulation)

to* * *each county or equivalent jurisdiction in which the species is

believed to occur, and invite the comment of such agency, and each

jurisdiction'' (section 4(b)(5)(A)(ii)). The comments of local

governments are then entered into the administrative record for the

proposed regulation and are considered when developing proposed or

final rules. However, we do not weight comments from a local government

any more or less than other comments. Instead, we are required to base

our decision on the ``best scientific data available and after taking

into consideration the economic impact, and any other relevant impact,

of specifying any particular area as critical habitat'' (section

4(b)(2) of the Act). The proposed rule was sent to Cochise, Santa Cruz,

and Pima county offices, the Southeastern Arizona Council of

Governments, and the cities/towns of Patagonia, Benson, and Sierra

Vista. Of these local governments, comments were received from the City

of Benson. Those comments were considered in development of this final

rule.

Issue 2: Lilaeopsis receives an adequate level of protection on the

San Pedro River and at Fort Huachuca, and therefore critical habitat

should not be designated in these areas.

Service Response: The San Pedro River critical habitat unit is

administered by the BLM, while designated critical habitat on Fort

Huachuca (Garden Canyon) is administered by the Department of Defense.

Because of the protection afforded Lilaeopsis through section 7

consultations on these Federal lands resulted from listing of the

species, there is little additional benefit of critical habitat

designation in occupied habitats because Lilaeopsis occurs patchily in

both Garden Canyon and the San Pedro River, and a project that affects

one portion of a stream course will affect downstream and perhaps

upstream reaches as well.

Given the above, we fundamentally agree that critical habitat

designation provides no additional protection beyond that provided

through listing the species under the Act. However, given the outcome

of litigation surrounding this and other critical habitat designations,

we felt that the prudent course would be to designate critical habitat

in areas where Federal actions are likely to affect that habitat.

Issue 3: Most of the areas proposed for critical habitat do not

have constituent elements and thus should not be designated. Occupied

habitat is adequate to ensure conservation of the species, thus

unoccupied sites should not be designated. In particular, one commenter

said that the San Pedro River channel is too unstable to support

Lilaeopsis, no refugia exist where the species can escape the effects

of flooding, and it is dominated by nonnative species, such as Typha

spp. (cattail). This commenter also said that the San Pedro River

should not be designated critical habitat because flows could be

depleted or halted due to diversions or pumping in the upper watershed

in Mexico.

Service Response: Although Lilaeopsis occurs within all of the

critical habitat units, the extent of occupied habitat and areas where

all of the constituent elements are found are somewhat dynamic and

change within these systems depending on floods, drought, changes in

channel morphology, and other factors. Some portions of stream segments

designated as critical habitat have very little potential to support

Lilaeopsis, such as the majority of the upper portion of Lone Mountain

Canyon, but may support the species and constituent elements in wet

years.

Nevertheless, these segments are hydrologically connected to, and

part of, the drainages that support the most important populations of

Lilaeopsis. In the case of upper Lone Mountain Canyon, populations of

Lilaeopsis occur both upstream and downstream of this reach; thus not

only is this segment likely ephemeral habitat which affects downstream

populations hydrologically, it is also a link that can allow for flow

of individuals and genetic material among populations. Such flow is

essential for genetic diversity and for recolonization if populations

are extirpated (Shafer 1990).

In regard to the San Pedro River, the reach designated as critical

habitat supports six populations or clusters of

[[Page 37447]]

populations that are distributed from the southern to northern

boundaries of the reach. This reach is broadly defined by the Arizona

Department of Water Resources (1991) as perennial throughout, although

in most years flow is greatly reduced and many places are dry

immediately before the summer rains begin in July.

The commenter's suggestion that the San Pedro River channel is too

unstable; no refugia exist for persistence during floods; and

nonnatives such as Typha are common is belied by the fact that six

populations exist within the critical habitat reach, despite changes in

channel morphology and periodic flooding. Also, Typha is a native

emergent plant, although other non-natives, particularly Rorippa

nasturtium-aquaticum, are common in the San Pedro River. Habitat

suitability varies within the San Pedro critical habitat unit, but we

have no reason to believe that any significant portion of it is

unsuitable. With the removal of grazing and off-road vehicles since

1989, the channel has apparently become more stable, emergent and

riparian vegetation has increased in the river channel, and Lilaeopsis

was rediscovered on the river. The recent introduction of beavers to

the system should further hasten the recovery of cienega conditions and

Lilaeopsis habitat. Groundwater pumping or diversions, or other changes

in the watershed of the San Pedro River in Mexico or Arizona may affect

the ability of the river to support Lilaeopsis and to provide

constituent elements.

Issue 4: The economic effects of designating critical habitat

greatly outweigh any benefits of designating critical habitat. The

designation will have harmful impacts on the quality of life,

education, and economic stability. In particular, designation of

critical habitat on the San Pedro River would change groundwater

pumping, which could result in closure of Fort Huachuca and subsequent

devastating effects to the economy of Sierra Vista.

Service Response: Areas proposed as critical habitat may be

excluded from designation if ``the benefits of such exclusion outweigh

the benefits of specifying the areas as part of the critical habitat,''

unless it is determined that ``failure to designate such area as

critical habitat will result in extinction of the species'' (section

4(b)(2) of the Act). As discussed in our response to issue 2,

additional conservation benefits of designation for most species, are

few if any.

The economic analysis (McKenney et al. 1999), based on our view

that no restrictions beyond those resulting from listing the species

will result from critical habitat designation, found that the critical

habitat designation would have no economic effect on activities. Based

on our experience with consultation on Lilaeopsis as well as completed

and ongoing conferences on the species' proposed critical habitat, we

do not foresee any action that would result in a finding of destruction

or adverse modification of proposed critical habitat that would not

also result in a finding of jeopardy to the species. As a result, no

effects to the economy of Sierra Vista or other cities or towns are

anticipated from designation of critical habitat, and therefore the

benefits of excluding these areas do not outweigh the benefits of

including them as critical habitat.

Issue 5: Designation of critical habitat has significant takings

implications; thus a takings implications assessment, as required by

Executive Order 12630, must be conducted. Also, a Regulatory

Flexibility Analysis should have been done.

Service Response: Please see the discussions under the ``Required

Determinations'' section of this final rule that discusses takings

implications assessments.

Issue 6: San Bernardino National Wildlife Refuge should be

designated critical habitat instead of the San Pedro River.

Service Response: In determining what areas are critical habitat,

we consider physical and biological features that are essential to the

conservation of the species and that may require special management

considerations or protection (50 CFR 424.14(b)). San Bernardino and

Leslie Canyon National Wildlife Refuges, as well as the upper San Pedro

River, provide important habitat for Lilaeopsis. However, as National

Wildlife Refuges with mandates to conserve and protect rare species,

special management and protection are already in place. Thus, no

additional layer of protection is needed. However, as discussed herein

and in the final listing rule (62 FR 665), Lilaeopsis and its habitat

are threatened by groundwater overdraft on the upper San Pedro, which

may require special management considerations or protection. As a

result, critical habitat was designated on the upper San Pedro River

but not at San Bernardino or Leslie Canyon National Wildlife Refuges.

Issue 7: Critical habitat designation will direct collectors of

rare plants and recreationists to these important habitats, resulting

in increased collection of Lilaeopsis and habitat disturbance.

Service Response: Designation of critical habitat is not prudent

when 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 (50 CFR 424.19). As discussed in

the proposed rule, we are concerned that publishing maps of Lilaeopsis

critical habitat could facilitate collection or other adverse effects.

However, Lilaeopsis is a small, grass-like plant with inconspicuous

flowers that is unlikely to be highly prized by plant collectors.

Collection has not been identified as a threat.

Publishing the localities could facilitate visits by botanists or

recreationists to these sites, which could result in trampling of

plants or banklines. However, we expect that these visits will be few

in number and very little disturbance will result from such visits.

Issue 8: All Lilaeopsis localities should have been designated as

critical habitat, or the Service should provide a rationale for not

designating sites. One commenter suggested that more critical habitat

should be designated in Bear Canyon of Unit 6.

Service Response: In determining what areas are critical habitat,

we consider areas and constituent elements that are essential to the

conservation of the species and that may require special protection or

management considerations (50 CFR 424.19(b)). Thus, not all areas

occupied or potentially occupied by a species are appropriate for

designation. Our rationale for not designating all Lilaeopsis

localities as critical habitat is discussed in the section of this rule

entitled ``Critical Habitat Designation.''

Issue 9: Designation of critical habitat should be delayed until

better information becomes available on the species.

Service Response: Critical habitat designation can be found to be

not determinable if information is insufficient to perform the required

analyses of the impacts of the designation, or the biological needs of

the species are not known well enough to permit identification of an

area as critical habitat. Although additional work on this species is

needed, the biological needs of the species is far from unknown and an

analysis of economic impacts was completed (McKenney et al. 1999).

Surveys and ecological studies of Lilaeopsis (Affolter 1985, Falk 1998,

Falk and Warren 1994, Gori et al. 1990, Haas and Frye 1997, Saucedo

1990, Warren et al. 1989, Warren et al. 1991, Warren and Reichenbacher

1991) provide sufficient

[[Page 37448]]

information upon which to base a critical habitat determination.

Critical habitat may be revised if new information becomes available

suggesting such revision is needed (50 CFR 424.12(g)).

On November 25, 1998, Judge Marquez 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.''

Issue 10: The maps are inadequate for landowners to determine what

areas were proposed as critical habitat. The meaning of ``adjacent

areas out to the beginning of the upland vegetation'' is unclear.

Service Response: The maps are intended to be a general guide to

where critical habitat is located. To determine exactly where critical

habitat begins and ends along the designated canyons and stream

reaches, readers should refer to the legal descriptions in the section

entitled ``Critical Habitat--Plants.'' In regard to the precise

location of critical habitat within canyons or stream reaches, we

decided that an ecological description would be more appropriate than a

strictly legal description. The floodplain vegetation community defines

the area in which constituent elements will be found more precisely

than legal descriptions. Lilaeopsis habitat and constituent elements

are expected to change within those floodplains over time as the

watercourse changes direction, creates new channels, etc. Movement

within the floodplain is more likely to occur in a broad floodplain

such as the San Pedro River, as compared to a narrow canyon, such as

Rattlesnake Canyon in Unit 6. Although the habitat and constituent

elements may move within a floodplain, they will always be within that

floodplain and its associated zone of riparian and wetland vegetation,

thus we defined the boundaries of critical habitat by vegetation

communities. The boundary between riparian/wetland communities and

adjacent uplands are typically quite clear in the arid woodlands and

semi-desert grasslands in which Lilaeopsis habitat occurs and should be

easy to identify on the ground.

Issue 11: Further survey work is needed in Unit 6 to determine

where critical habitat should be designated.

Service Response: We reevaluated survey data and reports,

particularly Gori et al. (1990), Haas and Frye (1997), and Warren et

al. (1991); and in March, 1999, we made two field trips to the area to

investigate the distribution of Lilaeopsis and assess habitat

suitability. These field trips focused on Lone Mountain Canyon and its

tributaries. Our review of existing literature and investigations in

Lone Mountain Canyon confirmed that the stream reaches proposed as

critical habitat met the regulatory criteria for critical habitat.

Lilaeopsis was found by us and previous investigators in Lone Mountain

Canyon and its two tributaries, but there are long stretches of these

canyons that are typically dry, and the species was not located. The

species may occur in these reaches during wet periods, but as discussed

in our response to Issue 3, not only are these reaches likely ephemeral

habitat during wet cycles, but they also affect downstream populations

hydrologically, and are links that can allow for flow of individuals

and genetic material among populations.

Issue 12: There is no need to designate critical habitat on the

fringe of Lilaeopsis' range, where few areas contain constituent

elements.

Service Response: The commenter states that the range of Lilaeopsis

extends to central and northern Mexico and northwestern South America.

This is the range of the entire species, but the listed entity,

Lilaeopsis schaffneriana ssp. recurva, is only known from 26 sites in

Santa Cruz, Cochise, and Pima counties, Arizona, and in adjacent

Sonora, Mexico. These are not ``fringe'' localities; they represent the

only places where this taxon is found.

Issue 13: The Service failed to notify or request comments from the

State of Arizona, Mexico, and South American countries where Lilaeopsis

occurs, as required by the Act.

Service Response: As discussed in our response to Issue 12,

Lilaeopsis schaffneriana ssp. recurva does not occur in South America,

therefore we did not solicit comments from South American countries.

Pursuant to 50 CFR 424.16 (c)(1)(iv), we are required to give notice to

foreign countries in which the species occurs only if the proposed

regulation is to list, delist, or reclassify the species. Because this

is not an action to list, delist, or reclassify a species, this action

does not apply to Mexico, and we are not required to inform that

government of this designation. Within Arizona State government, the

proposed rule was sent to 28 contacts within numerous agencies,

including the Governor's Office and the Arizona Department of

Agriculture, which has jurisdiction over plant protection within State

government. Of these 28, the Arizona Department of Environmental

Quality and Arizona Game and Fish Department responded in writing to us

indicating they had no comments on the proposed designation.

Issue 14: The Service should focus on establishing Lilaeopsis in

small sites where it can persist, such as creating a small diversion

along the San Pedro River that could serve as a refugium for the

species, rather than designating large areas that impinge on property

and water rights and increase unnecessary regulation.

Service Response: Creation of habitat is an action that could be

employed to help recover and ultimately eliminate the need for

Lilaeopsis' endangered status and the critical habitat designation.

However, such decisions will be addressed in the species' recovery

plan, which has yet to be developed.

Because critical habitat designation would not affect any uses of

private property, unless those uses were federally authorized, funded,

or carried out, no infringement of property rights would result from

critical habitat designation. The designation is also not expected to

increase regulatory burden above and beyond that already imposed by

listing, because projects that would adversely modify or destroy

critical habitat would also result in jeopardy to the species.

Issue 15: The following finding from the proposed rule is

inconsistent with the Act and its implementing regulations: ``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.''

Service Response: The implementing regulations require that

analyses to determine critical habitat shall focus on the principal

biological and physical constituent elements within defined areas that

are essential to the conservation of the species (50 CFR 424.12(b)(5)).

The species occurs in all of the critical habitat units, but in certain

reaches within each unit it may at times be absent and some constituent

elements may be missing. Nevertheless, these areas are important as

habitat during wet cycles and/or are important corridors for movement

of plants and genetic material among populations. Since stream courses

are dynamic, as is the distribution of the plant, protection of sites

that do not currently support the water umbel but could do so in the

future are essential to the species' conservation.

Issue 16: The assumption used in the analysis is incorrect, as

designation of critical habitat will have economic

[[Page 37449]]

impacts on the City of Sierra Vista and Fort Huachuca.

Service Response: The designation of critical habitat for the

Huachuca water umbel has been evaluated in the economic context known

as ``with'' and ``without'' the rule. It was found that the status of

the Huachuca water umbel is such that any adverse modification of its

habitat would be likely to jeopardize the species. Further, it is our

position that both within and outside of critical habitat, Federal

agencies should consult under the jeopardy standard if a proposed

action is (1) within the geographic areas occupied by the species,

whether or not the Huachuca water umbel has been detected on the

specific project site; (2) the project site contains habitat features

that can be used by the species; and (3) the proposed action is likely

to adversely affect that habitat. Under this condition, any and all

real economic consequences would be due to the jeopardy call under

section 7 of the Act and an adverse modification without a jeopardy

call would not occur. Therefore, the economic consequences identified

during the comment period are all due to the listing of the water umbel

and not additional consequences accrued from the designation of

critical habitat. The economic analysis of designating critical habitat

determined that the same regulatory process is in place ``with'' as

well as ``without'' the rule, and consequently found no economic

effects attributable to the designation of critical habitat.

Issue 17: The designation will have harmful impacts on the quality

of life, education, and economic stability of small towns. There is an

expressed concern that the proposed critical habitat designation will

change groundwater pumping from the San Pedro River and this will

negatively affect the city of Sierra Vista and Fort Huachuca which

provides jobs to local residents.

Service Response: As stated in the economic analysis, the proposed

rule to designate critical habitat for the Huachuca water umbel is not

adding any new requirements to the regulatory process. Since the

adverse modification standard for critical habitat and the jeopardy

standard are almost identical, the listing of the Huachuca water umbel

itself invoked the requirement for consultation. The rule to designate

critical habitat adds no other requirements not already in place when

the species was listed.

Issue 18: The Service's designation of critical habitat has not

adequately considered potential economic implications. There is

opposition to the fact that the Service did not prepare an initial

regulatory flexibility analysis to address potential impact to small

businesses, as required under the Regulatory Flexibility Act.

Service Response: The proposed rule was published under very tight

time constraints placed by Court Order on December 24, 1998. At that

time we prepared a Record of Compliance certification that the proposed

critical habitat designation would not have a significant economic

impact on small entities. A detailed analysis was initiated by a

private firm under Government contract and subsequently, we distributed

a draft of the economic report for a 30-day public comment period

ending in May, 1999. The findings of the economic reports indicate that

the designation of critical habitat adds no new restrictions on

economic activity that were not in place with the listing of

Lilaeopsis. Therefore, there is no economic effect on small entities

attributable to this rulemaking, and a regulatory impact analysis is

not required.

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.

Economic effects caused by listing Lilaeopsis as endangered and by

other statutes are the baseline upon which critical habitat is imposed.

The economic analysis must then examine the incremental economic and

conservation effects of the critical habitat addition. Economic effects

are measured as changes in national income, regional jobs, and

household income.

An analysis of the economic effects of Lilaeopsis critical habitat

designation was prepared (McKenney et al. 1999) and made available for

public review. The final analysis, which reviewed and incorporated

public comments, concluded that no economic impacts are expected from

critical habitat designation above and beyond that already imposed by

listing Lilaeopsis. The only possible economic effects of critical

habitat designation are on activities funded, authorized, or carried

out by a Federal agency. These activities would be subject to section 7

consultation if they may affect critical habitat. However, activities

that may affect critical habitat may also affect the species, and would

thus be subject to consultation regardless of critical habitat

designation. Also, changes or mitigating measures that might increase

the cost of the project would only be imposed as a result of critical

habitat if the project adversely modifies or destroys that critical

habitat. We believe that any project that would adversely modify or

destroy critical habitat would also jeopardize the continued existence

of the species; thus no regulatory burden or additional costs would

accrue because of critical habitat above and beyond those resulting

from listing. Furthermore, we believe any reasonable and prudent

alternative that would remove jeopardy to the species would also remove

adverse modification of critical habitat.

A copy of the economic analysis and description of the exclusion

process with supporting documents are included in our administrative

record and may be obtained by contacting our office (see ADDRESSES

section).

Required Determinations

Regulatory Planning and Review. In accordance with Executive Order

12866, this action was submitted for review by the Office of Management

and Budget. Because the economic analysis identified no economic

benefits from excluding any of the proposed critical habitat areas, we

made a determination to designate all proposed critical habitat units,

with the exception of Unit 7, Joaquin Canyon, which is excluded because

its designation is not essential to the conservation of the species and

is not in need of special management or protection. No inconsistencies

with other agencies' actions and or effects on entitlements, grants,

user fees, loan programs, or the rights and obligations of their

recipients, were identified in the economic analysis. This rule does

not raise novel legal or policy issues.

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

In the economic analysis we determined that designation of critical

habitat will not have a significant effect on a substantial number of

small entities. As discussed in that document and in this final rule,

designating critical habitat will not place restrictions on any actions

beyond those already resulting from listing Lilaeopsis as endangered.

We recognize that some towns, counties, and private entities are

considered small entities in accordance

[[Page 37450]]

with the Regulatory Flexibility Act, however, they also are not

affected by the designation of critical habitat because no additional

restrictions will result from this action.

Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 804(2))

In the economic analysis, we determined that designation of

critical habitat will not 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.

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

In the economic analysis, we determined that no effects would occur

to small governments as a result of critical habitat designation.

Takings. In accordance with Executive Order 12630, this rule does

not have significant takings implications, and a takings implication

assessment is not required. This rule 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. Although the majority of lands designated as critical

habitat is under Federal administration and management, some riparian

systems on private land are being designated.

Federalism

This rule 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, and in the

economic analysis we determined that no economic impacts would result

from of critical habitat designation.

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. We have made every effort to

ensure that this final determination contains no drafting errors,

provides clear standards, simplifies procedures, reduces burden, and is

clearly written such that litigation risk is minimized.

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.

National Environmental Policy Act (NEPA)

We have determined that regulations adopted pursuant to section 4

of the Act need not undergo preparation of Environmental Assessments or

Environmental Impact Statements as defined under the authority of the

NEPA. We published a notice outlining our reasons for this

determination in the Federal Register on October 25, 1983 (48 FR

49244).

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.'' Lilaeopsis critical habitat 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 final rule is

available upon request from the Arizona Ecological Services Field

Office (see ADDRESSES section).

Authors

The primary author of this notice is Jim Rorabaugh (see ADDRESSES

section).

List of Subjects in 50 CFR Part 17

Endangered and threatened species, Exports, Imports, Reporting and

recordkeeping requirements, Transportation.

For the reasons given in the preamble, we 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

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

Sec. 17.12 Endangered and threatened plants.

* * * * *

(h) * * *

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

Species

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

Scientific name Common name habitat rules

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

Flowering Plants

* * * * * * *

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

recurva. (a)

* * * * * * *

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

3. In section 17.96 add critical habitat for Lilaeopsis

schaffneriana var. recurva, Huachuca water umbel, as the first entry

under ``(a) Flowering plants'' to read as follows:

[[Page 37451]]

Sec. 17.96 Critical habitat--plants.

(a) Flowering plants.

Family Apiaceae: Lilaeopsis schaffneriana var. recurva (Huachuca

water umbel). Critical habitat includes the stream courses

identified in the legal descriptions below, and includes adjacent

areas out to the beginning of upland vegetation. 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 or nearly permanently wetted

substrate for growth and reproduction of Lilaeopsis; (2) A stream

channel that is relatively stable, but 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 relatively 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) In streams and rivers, refugial sites in

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

springs or backwaters of mainstem rivers, that allow each population

to survive catastrophic floods and recolonize larger areas.

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.).

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.).

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.).

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.).

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.).

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

Miller Peak, Arizona.

Gila and Salt Principal Meridian, Arizona: That portion of Bear

Canyon beginning at a point in T. 24 S., R. 19 E., sec. 1 at approx.

31 deg.22'30'' N latitude and 110 deg.21'47'' W longitude upstream

through T. 23 S., R. 19 E., sec. 36 to a point in sec. 31 at approx.

31 deg.23'18'' N latitude and 110 deg.21'22'' W longitude covering

approx. 1.7 km (1.0 mi.). Also, continuing up an unnamed tributary

beginning at a point in T. 23 S., R. 19 E., sec. 31 at approx.

31 deg.23'18'' N latitude and 110 deg.21'22'' W longitude upstream

(northerly) to a point in T. 23 S., R. 19 E., sec. 30 at approx.

31 deg.23'44'' N latitude and 110 deg.21'14'' W longitude covering

approx. 0.9 km (0.5 mi.). Also, that portion of Lone Mountain Canyon

beginning at its confluence with Bear Creek at a point in T. 23 S.,

R. 19 E., sec. 36 at approx. 31 deg.22'54'' N latitude and

110 deg.21'43'' W longitude to a point in sec. 36 at approx.

31 deg.23'26'' N latitude and 110 deg.21'58'' W longitude, thence up

an unnamed tributary northwesterly into sec. 25 thence northerly to

a point at approx. 31 deg.24'13'' N latitude and 110 deg.21'54'' W

longitude covering approx. 2.7 km (1.7 mi.). Also that portion of

Rattlesnake Canyon beginning at its confluence with Lone Mountain

Canyon in T. 23 S., R. 19 E., sec. 36 upstream northeasterly into

sec. 25 to a point at approx. 31 deg.22'08'' N latitude and

110 deg.21'31'' W longitude covering approx. 1.5 km (1.0 mi.).

Unit 7. 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 for Units 1-7 follow:

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Dated: June 30, 1999.

Donald J. Barry,

Assistant Secretary for Fish and Wildlife and Parks.

[FR Doc. 99-17403 Filed 7-6-99; 1:25 pm]

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