Federal Register: March 27, 2007 (Volume 72, Number 58)
DOCID: fr27mr07-13 FR Doc 07-1396
DEPARTMENT OF THE INTERIOR
U.S. Citizenship and Immigration Services
CFR Citation: 50 CFR Part 17
RIN ID: RIN 1018-AV02
NOTICE: Part II
DOCUMENT ACTION: Proposed rule.
Endangered and Threatened Wildlife and Plants; Proposed Designation of Critical Habitat for the Pecos Sunflower (Helianthus paradoxus)
DATES: We will accept comments from all interested parties until May 29, 2007. We must receive requests for public hearings, in writing, at the address shown in the ADDRESSES section by May 11, 2007.
We, the U.S. Fish and Wildlife Service (Service), propose to designate critical habitat for the Pecos sunflower (Helianthus paradoxus) under the Endangered Species Act of 1973, as amended (Act). In total, approximately 1579.3 acres (ac) (639.1 hectares (ha)) fall within the boundaries of the proposed critical habitat designation. Proposed critical habitat is located in Chaves, Cibola, Guadalupe, Socorro, and Valencia Counties, New Mexico, and in Pecos County, Texas.
Interior Department, Fish and Wildlife Service,
Public Comments Solicited
We intend that any final action resulting from this proposal will
be as accurate and as effective as possible. Therefore, comments or
suggestions from the public, other concerned governmental agencies, the
scientific community, industry, or any other interested party
concerning this proposed rule are hereby solicited. Comments particularly are sought concerning:
(1) The reasons any habitat should or should not be determined to be critical habitat as provided by section 4 of the Act (16 U.S.C. 1531 et seq.), including whether the benefit of designation would outweigh any threats to the species caused by designation;
(2) Specific information on the amount and distribution of Helianthus paradoxus habitat, what areas should be included in the designation that were occupied at the time of listing that contain features essential for the conservation of the species and why, and what areas that were not occupied at the listing are 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, national security, or other potential impacts resulting from the proposed designation and, in particular, any impacts on small entities;
(5) Whether our approach to designating critical habitat could be improved or modified in any way to provide for greater public participation and understanding, or to assist us in accommodating public concerns and comments; and
(6) The existence of any conservation or management plans being implemented by public or private land management agencies or owners that we should consider for exclusion from the designation pursuant to section 4(b)(2) of the Act. Please include information on any benefits (educational, regulatory, etc.) of including or excluding lands from this proposed designation.
If you wish to comment, you may submit your comments and materials concerning this proposal by any one of several methods (see ADDRESSES). Please include ``Attn: Helianthus paradoxus'' in your email subject header and your name and return address in the body of your message. If you do not receive a confirmation from the system that we have received your message, contact us directly by calling our New Mexico Ecological Services Field Office at 505/3462525. Please note that the email address R2FWE_AL@fws.gov will be closed out at the termination of the public comment period.
Before including your address, phone number, email address, or
other personal identifying information in your comment, you should be
aware that your entire commentincluding your personal identifying
informationmay be made publicly available at any time. While you can
ask us in your comment to withhold your personal identifying
information from public review, we cannot guarantee that we will be able to do so.
Role of Critical Habitat in Actual Practice of Administering and Implementing the Act
Attention to and protection of habitat is paramount to successful conservation actions. The role that designation of critical habitat plays in protecting habitat of listed species, however, is often misunderstood. As discussed in more detail below in the discussion of exclusions under the Act's section 4(b)(2), there are significant limitations on the regulatory effect of designation under the Act's section 7(a)(2). In brief, (1) designation provides additional protection to habitat only where there is a Federal nexus; (2) the protection is relevant only when, in the absence of designation, destruction or adverse modification of the critical habitat would take place (in other words, other statutory or regulatory protections, policies, or other factors relevant to agency decisionmaking would not prevent the destruction or adverse modification); and (3) designation of critical habitat triggers the prohibition of destruction or adverse modification of that habitat, but it does not require specific actions to restore or improve habitat.
Currently, only 485 species, or 37 percent of the 1,310 listed
species in the United States under the jurisdiction of the Service,
have designated critical habitat. We address the habitat needs of all
1,310 listed species through conservation mechanisms such as listing,
section 7 consultations, the section 4 recovery planning process, the
section 9 protective prohibitions of unauthorized take, section 6
funding to the States, the section 10 incidental take permit process, and cooperative,
nonregulatory efforts with private landowners. The Service believes that these measures may make the difference between extinction and survival for many species.
In considering exclusions of areas proposed for designation, we evaluated the benefits of designation in light of Gifford Pinchot Task Force v. U.S. Fish and Wildlife Service, 378 F.3d 1059 (9th Cir 2004) (hereinafter Gifford Pinchot). In that case, the Ninth Circuit invalidated the Service's regulation defining ``destruction or adverse modification of critical habitat.'' In response, on December 9, 2004, the Director issued guidance to be considered in making section 7 adverse modification determinations. This proposed critical habitat designation does not use the invalidated regulation in our consideration of the benefits of including areas. The Service will carefully manage future consultations that analyze impacts to designated critical habitat, particularly those that appear to be resulting in an adverse modification determination. Such consultations will be reviewed by the Regional Office prior to finalizing to ensure that an adequate analysis has been conducted that is informed by the Director's guidance.
To the extent that designation of critical habitat provides protection, that protection can come at significant social and economic cost. In addition, the mere administrative process of designation of critical habitat is expensive, timeconsuming, and controversial. The current statutory framework of critical habitat, combined with past judicial interpretations of the statute, make critical habitat the subject of excessive litigation. As a result, critical habitat designations are driven by litigation and courts rather than biology, and made at a time and under a timeframe that limits our ability to obtain and evaluate the scientific and other information required to make the designation most meaningful.
In light of these circumstances, the Service believes that
additional agency discretion would allow our focus to return to those
actions that provide the greatest benefit to the species most in need of protection.
Procedural and Resource Difficulties in Designating Critical Habitat
We have been inundated with lawsuits for our failure to designate critical habitat, and we face a growing number of lawsuits challenging critical habitat determinations once they are made. These lawsuits have subjected the Service to an everincreasing series of court orders and courtapproved settlement agreements, compliance with which now consumes nearly the entire listing program budget. This leaves the Service with little ability to prioritize its activities to direct scarce listing resources to the listing program actions with the most biologically urgent species conservation needs.
The consequence of the critical habitat litigation activity is that limited listing funds are used to defend active lawsuits, to respond to Notices of Intent (NOIs) to sue relative to critical habitat, and to comply with the growing number of adverse court orders. As a result, listing petition responses, the Service's own proposals to list critically imperiled species, and final listing determinations on existing proposals are all significantly delayed.
The accelerated schedules of courtordered designations have left the Service with limited ability to provide for public participation or to ensure a defectfree rulemaking process before making decisions on listing and critical habitat proposals, due to the risks associated with noncompliance with judicially imposed deadlines. This in turn fosters a second round of litigation in which those who fear adverse impacts from critical habitat designations challenge those designations. The cycle of litigation appears endless and is expensive, thus diverting resources from conservation actions that may provide relatively more benefit to imperiled species.
The costs resulting from the designation include legal costs, the cost of preparation and publication of the designation, the cost of analysis of the economic effects and of requesting and responding to public comment, and in some cases the costs of compliance with the National Environmental Policy Act (NEPA; 42 U.S.C. 4371 et seq.). These costs, which are not required for many other conservation actions, directly reduce the funds available for direct and tangible conservation actions.
It is our intent to discuss only those topics directly relevant to designation of critical habitat in this proposal. For more information on Helianthus paradoxus, refer to the final listing rule published in the Federal Register on October 20, 1999 (64 FR 56582) and the Pecos Sunflower Recovery Plan posted at http://www.ecos.fws.gov/docs/recovery_plans/2005/050915.pdf .
Helianthus paradoxus is a member of the Asteraceae family, described by Dr. Charles Heiser in 1958 as Helianthus paradoxus (Heiser 1958, pp. 272274). Genetic and morphological analyses have confirmed Helianthus paradoxus as a valid taxon (Rieseberg et al. 1990, pp. 1508 1509; Lexer et al. 2003, p. 1999; Welch and Riesberg 2002, p. 477). A number of vernacular names for this plant, including Pecos sunflower, puzzle sunflower, and paradox sunflower, have appeared in printed literature, and all refer to Helianthus paradoxus. The Service has adopted `Pecos sunflower' as the standard common name for this species.
H. paradoxus is a plant that grows on permanently wet, alkaline soils at spring seeps, wet meadows, stream courses, and pond margins. It is currently known from 12 populations in 5 widely spaced geographical areas in westcentral and eastern New Mexico and adjacent TransPecos Texas. These populations are all dependent upon wetlands that result from an elevated water table. The number of H. paradoxus per site varies from fewer than 100 to over one million. Because H. paradoxus is an annual, the number of plants per site can fluctuate greatly from year to year with changes in precipitation and depth to groundwater or in response to other physical and biological changes. Stands of H. paradoxus can change location within the habitat as well (Sivinski 1992, p. 125). If a wetland habitat dries out permanently, even a large population of H. paradoxus will disappear (Service 1999, p. 56582).
Little is known about the historic distribution of H. paradoxus.
The plant is associated with spring seeps and desert cienegas, and
there is evidence these habitats were historically reduced or
eliminated by aquifer depletion, or severely impacted by agricultural
activities and encroachment by nonnative plants (Poole 1992, p. 2;
Sivinski 1995, p. 11). H. paradoxus was known only from a single
population near Fort Stockton, Pecos County, Texas, when it was
proposed as a candidate species under the Act on December 15, 1980 (45
FR 82480). This is a large population of several hundred thousand to
one million plants at The Nature Conservancy's Diamond Y Spring
Preserve and a smaller group of plants downstream at a nearby highway
rightofway. Between 1980 and 1994, field surveys for this plant found
additional populations in New Mexico and Texas (Service 1999, p.
56582). During this period, H. paradoxus was discovered in a second
Texas site at The Nature Conservancy's Sandia Spring Preserve in the
Balmorhea area of Reeves County, Texas. In addition, H. paradoxus was
found at 11 spring seeps and cienegas in the Roswell/Dexter region of
the Pecos River valley in Chaves County, New Mexico. Three of these wetlands support many thousands
of H. paradoxus, but the remainder are smaller, isolated occurrences. Springs and cienegas within and near the town of Santa Rosa in Guadalupe County, New Mexico, were found to have eight wetlands with H. paradoxus, one of which consisted of a few hundred thousand plants. Also discovered were two widely separated areas of spring seeps and cienegas in the Rio San Jose valley of western New Mexico, each supporting a mediumsized population of H. paradoxus. One occurs on the lower Rio San Jose in Valencia County and the other is in Cibola County in the vicinity of Grants. After the species was listed, two more populations were added to the total number of known populations: (1) A very large population near La Joya, in Socorro County, at the confluence of the Rio Grande and the Rio Puerco; and (2) a population on State lands in Chaves County in a marshy sink (Service 2005, p. 4). Previous Federal Actions
H. paradoxus was listed as a threatened species on October 20, 1999 (64 FR 56582). At the time this plant was federally listed, the Service determined that the designation of critical habitat was not prudent because we believed publication of critical habitat maps would increase the degree of threats to the species by vandalism and commercial collection. On September 27, 2005, the Forest Guardians filed suit against the Service for failure to designate critical habitat for this species (Forest Guardians v. Hall 2005). On March 20, 2006, a settlement was reached that requires the Service to reevaluate our original prudency determination. The settlement stipulated that, if prudent, a proposed rule would be submitted to the Federal Register for publication on or before March 16, 2007, and a final rule by March 16, 2008. This proposed rule complies with the settlement agreement and with section 4(b)(2) of the Act.
For more information on previous Federal actions concerning H. paradoxus, refer to the final listing rule published in the Federal Register on October 20, 1999 (64 FR 56582), and the Pecos Sunflower Recovery Plan, dated July 2005, prepared by the Fish and Wildlife Service.
Critical habitat is defined in section 3 of the Act as(i) the specific areas within the geographical 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 considerations or protection; and (ii) specific areas outside the geographical area occupied by a species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. Conservation, as defined under section 3 of the Act, means to use and the use of all methods and procedures that are necessary to bring any endangered species or threatened species to the point at which the measures provided under the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act through the prohibition against destruction or adverse modification of critical habitat with regard to actions carried out, funded, or authorized by a Federal agency. Section 7 of the Act requires consultation on Federal actions that are likely to result in the destruction or adverse modification of critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation does not allow government or public access to private lands. Section 7 of the Act is a purely protective measure and does not require implementation of restoration, recovery, or enhancement measures.
To be included in a critical habitat designation, the habitat within the area known at the time of listing to be occupied by the species must first have features that are essential to the conservation of the species. Critical habitat designations identify, to the extent known using the best scientific data available, habitat areas that provide essential life cycle needs of the species (areas on which are found the primary constituent elements (PCEs), as defined at 50 CFR 424.12(b)).
Habitat known at the time of listing to be occupied may be included in critical habitat only if the essential features thereon may require special management or protection. Thus, we do not include areas where existing management is sufficient to conserve the species. (As discussed below, such areas may also be excluded from critical habitat under section 4(b)(2) of the Act.) Accordingly, when the best available scientific data do not demonstrate that the conservation needs of the species require additional areas, we will not designate critical habitat in areas outside the geographical area known at the time of listing to be occupied by the species. However, an area currently occupied by the species but was not known at the time of listing to be occupied will likely, but not always, be essential to the conservation of the species and, therefore, typically may be included in the critical habitat designation.
The Service's Policy on Information Standards Under the Endangered Species Act, published in the Federal Register on July 1, 1994 (59 FR 34271), and Section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106554; H.R. 5658) and the associated Information Quality Guidelines issued by the Service, provide criteria, establish procedures, and provide guidance to ensure that decisions made by the Service represent the best scientific data available. They require Service biologists to the extent consistent with the Act and with the use of the best scientific data available, to use primary and original sources of information as the basis for recommendations to designate critical habitat. When determining which areas are critical habitat, a primary source of information is generally the listing package for the species. Additional information sources may include the recovery plan for the species, articles in peerreviewed journals, conservation plans developed by States and counties, scientific status surveys and studies, biological assessments, or other unpublished materials and expert opinion or personal knowledge. All information is used in accordance with the provisions of Section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106554; H.R. 5658) and the associated Information Quality Guidelines issued by the Service.
Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific and commercial data available. Habitat is often dynamic, and species may move from one area to another over time. Furthermore, we recognize that designation of critical habitat may not include all of the habitat areas that may eventually be determined to be necessary for the recovery of the species. For these reasons, critical habitat designations do not signal that habitat outside the designation is unimportant or may not be required for recovery.
Areas that support populations, but are outside the critical habitat designation, will continue to be subject to conservation actions implemented under section 7(a)(1) of the Act and to the regulatory protections afforded by the section 7(a)(2) jeopardy standard, as determined on the basis of the best available information at the time of the action. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans, or other species conservation planning efforts if new information available to these planning efforts calls for a different outcome. Methods
As required by section 4(b) of the Act, we used the best scientific and commercial data available in determining areas that contain the features that are essential to the conservation of H. paradoxus, areas that are essential to the conservation of H. paradoxus, or both. In designating critical habitat for this species, we reviewed the Final Pecos Sunflower Recovery Plan and listing packages for the species, articles in peerreviewed journals, conservation plans developed by land managers, scientific status surveys and studies, biological assessments, and other unpublished materials, including expert opinion. We are proposing to designate habitat that we have determined contains the physical and biological features essential to the conservation of the species arranged in the quantity and spatial characteristics necessary for conservation (see ``Criteria Used To Identify Critical Habitat'' section below).
We have also reviewed available information that pertains to the habitat requirements of this species. We reviewed information from knowledgeable biologists, including Hirsch 2006, Poole 2006, Sivinski 2007, and Ulibarri 2006, and reviewed recommendations contained in State resource reports. We also reviewed the available literature pertaining to habitat requirements, historical localities, and current localities of the species in peerreviewed articles such as Van Auken and Bush 1998. We used data in reports submitted during consultations under section 7 of the Act and in regional Geographic Information System (GIS) data layer coverages. Of particular importance, we reviewed databases, published literature, and field notes to determine the historical and current distribution of the species. Agency and researcher field notes and published literature contained additional information on surveys and species' detections, such as in performance reports under section 6 of the Act prepared by botanists in New Mexico and Texas (Poole 1992, pp. 16; Sivinski 1992, pp. 124126; Sivinski 1995, pp. 111).
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 (PCEs)) that are essential to the conservation of the species, and within areas occupied by the species at the time of listing, that may require special management considerations and protection. These include, but are not limited to: (1) Space for individual and population growth and for normal behavior; (2) food, water, air, light, minerals, or other nutritional or physiological requirements; (3) cover or shelter; (4) sites for breeding, reproduction, and rearing (or development) of offspring; and (5) habitats that are protected from disturbance or are representative of the historic, geographical, and ecological distributions of a species.
The specific PCEs required for H. paradoxus are derived from the
physical and biological features that are essential to the conservation
of the species, as described below and in the Background section of
this proposal. We determined the PCEs for H. paradoxus from studies of
habitat requirements (see ``Background'' and ``Methods'' sections above).
Space for Individual and Population Growth, Including Sites for Germination, Pollination, Reproduction, and Seed Bank
H. paradoxus is an annual species that must reestablish populations of adult plants each year from seed produced during previous years' reproductive efforts. Habitats with suitable alkaline soils and perennially wet hydrologic conditions for all of the life functions of H. paradoxus are typically small areas around springs and ponds. Therefore, populations tend to grow in crowded patches of dozens or even thousands of individuals. Solitary individuals may be found around the periphery of the wetland, but dense, welldefined stands within suitable habitats are more typical. Aggregations of individuals may occur in different adjacent areas than the patches of dead stalks from the population of the previous year (Sivinski 1992, p. 125). This suggests seed dispersal or the presence of a persistent soil seed bank (Van Auken 2001). Patch densities and locations are determined by a combination of factors, including variations in seasonal soil moisture, salinity, oxygen, disturbance, and competing vegetation (Bush 2002, pp. 12; Van Auken and Bush 1995, p. 15; Bush and Van Auken 1997, p. 417).
Dense stands of H. paradoxus produce smaller, spindly plants, while more open stands have larger plants (Service 2005, p. 6). Likewise, experiments to remove competing vegetation, such as alkali sacaton (Sporobolus airoides) and saltgrass (Distichlis spicata), also produced larger H. paradoxus plants with more flowers per plant (Bush and Van Auken 1997, p. 417).
Pollination vectors for H. paradoxus have not been studied.
However, most plants in the aster family with raylike flowers, such as
H. paradoxus, attract a variety of insect pollinators (Service 2005, p.
7). Seed production is greatly enhanced in H. paradoxus by cross
pollination between individual plants. An experiment that excluded
pollinators from flower heads produced only 5 percent viable seed
compared to 84 percent viable seed produced by flower heads that were
open to insect pollination (Van Auken and Bush 1997, p. 44). H.
paradoxus blooms in the months of September and October. Flowering
peaks the second week of September in the northernmost New Mexico
populations. The peak flowering time for the southernmost population
in West Texas is later in October. Seeds fill and mature during October
and November and then require a 2 to 3month afterripening period
before germination (Van Auken 2001, p. 157). A few seeds remain dormant
for longer periods and appear to be insurance for species survival by
remaining viable in the soil seed bank (Van Auken 2001). The duration of seed viability has not yet been studied.
Areas That Provide the Basic Requirements for Growth (Such as Water, Light, and Minerals)
H. paradoxus habitat attributes usually are present in desert
wetland areas that contain permanently saturated soils in the root zone
(Service 2005, p. 6). These are most commonly desert springs and seeps
that form wet meadows called ``cienegas.'' Nevertheless, H. paradoxus
also can occur around the margins of lakes and creeks (Service 2005, p. 6). When H.
paradoxus grows around lakes or ponds, these areas are usually associated with natural cienega habitats. The soils of these desert wetlands and riparian areas are typically saline or alkaline because the waters are high in dissolved solids and elevated evaporation rates leave deposits of salts, including carbonates, at the soil's surface. Studies by Van Auken and Bush (1995, pp. 14) showed that H. paradoxus grows in saline soils, but seeds germinate and establish best when precipitation and high water tables reduce salinity near the soil surface. Based on greenhouse and limited field studies, H. paradoxus requires salinity levels ranging from 10 to 40 parts per thousand for optimal growth in competition with other salt marsh plant species (Van Auken and Bush 2006, p. 29). H. paradoxus can occur on the cienegas that contain alkaline, fine sand soils that may be dry at the surface during summer months, but are subirrigated in the root zone. Where saturated soils are shaded by taller vegetation, H. paradoxus may also not be present every year or in numbers greater than a few hundred plants. Like all sunflowers, this species requires open areas that are not shaded by taller vegetation for optimal growth. Solitary trees or shrubs are sometimes located within stands of H. paradoxus. Clusters of tall tress and shrubs will inhibit H. paradoxus's growth by shading germinating seeds and seedlings (Service 2005, p. 6).
Primary Constituent Elements for Helianthus Paradoxus
Pursuant to the Act and its implementing regulations, we are required to identify the physical and biological features (PCEs) within the geographical area known to be occupied at the time of listing of H. paradoxus, that may require special management considerations or protections.
Based on our current knowledge of the life history, biology, and
ecology of the species and the requirements of the habitat to sustain
the essential life history functions of the species, we have determined
that H. paradoxus's PCEs are the desert wetland or riparian habitat components that provide:
(1) Silty clay or fine sand soils that contain high organic content, are saline or alkaline, are permanently saturated within the root zone (top 50 cm of the soil profile), and have salinity levels ranging from 10 to 40 parts per thousand; and
(2) Low proportion (less than 10 percent) of woody shrub or canopy cover directly around the plant.
Critical habitat does not include manmade structures, such as buildings, aqueducts, runways, airports, roads, and other paved areas, and the land on which such structures are located within the boundaries of a final critical habitat designation that exist on the effective date of a final rule.
This proposed designation is designed for the conservation of PCEs necessary to support the life history functions that are the basis for the proposal and the areas containing those PCEs. Because all of the species' life history functions require all of the PCEs, all proposed critical habitat units contain all PCEs.
Special Management Considerations or Protections
When designating critical habitat, we assess whether the areas determined to be occupied at the time of listing and that contain the primary constituent elements may require special management considerations or protections. Threats to H. paradoxus include drying of wetlands from groundwater depletion, alteration of wetlands (e.g., wetland fills, draining, impoundment, and development), competition from nonnative plant species, overgrazing by livestock during H. paradoxus's flowering season, impacts from recreational activities, mowing, and highway maintenance.
We believe each area included in this proposal requires special management or protections as described in our unit descriptions below.
The loss or alteration of wetland habitat continues to be the main threat to H. paradoxus. The scattered distribution of cienegas makes them aquatic islands of unique habitat in an aridland matrix (Hendrickson and Minckley 1984, p. 169). There is evidence these habitats have been historically, and are presently being, reduced or eliminated by aquifer depletion, and severely impacted by agricultural activities and encroachment by exotic plants (Poole 1992, pp. 12; Sivinski 1995, p. 11). The lowering of water tables through aquifer withdrawals for irrigation and municipal use, diversion of water from wetlands for agriculture and recreational uses, and wetland filling for conversion to dry land uses destroy or degrade desert wetlands.
In Grants, New Mexico, H. paradoxus has been observed to occur in close proximity to building sites that may have contained suitable wetland habitat prior to filling (Service 2005, p. 8). A cienega containing H. paradoxus near Dexter, New Mexico, was dried when a wellhead was placed on the spring and the water diverted for other uses (Service 2005, p. 8). Springs that have fed H. paradoxus habitats have been converted to swimming pools and fishing ponds in the towns of Roswell and Santa Rosa, New Mexico (Service 2005, p. 8). Groundwater withdrawals for agriculture in Pecos and Reeves Counties in Texas have had an especially severe impact on desert springs (Service 2005, p. 8). Of the 61 historical desert springs in these two counties, only 13 were still flowing in 1980 (Brune 1981 in Poole 1992, p. 5). Beginning around 1946, groundwater levels fell as much as 400 ft (120 m) in Pecos County and 500 ft (150 m) in Reeves County. Groundwater pumping has lessened in recent years due to the higher cost of removing water from deeper aquifers, but rising water tables and resumption of spring flows are not expected (Poole 1992, p. 5). Texas water law provides no protection for the remaining springs that support H. paradoxus populations on The Nature Conservancy properties, which limits options for addressing this threat.
Livestock will eat H. paradoxus when other green forage is scarce, and when the buds are developing and abundant (Service 1999, p. 56587). Cattle and horses tend to pull off the flower heads, which can reduce seed production (Bush and Van Auken 1997, p. 416). However, well managed grazing during nonflowering months may have a beneficial effect on H. paradoxus populations by decreasing the density and biomass of potentially competing plant species in these habitats. This sunflower germinates earlier than most associated plants and grows vigorously on wet, bare, highly insolated soils (Service 2005, p. 9). Actions that remove shading grass cover, such as grazing, appear to enhance growth and reproduction of sunflower plants that are later protected from grazing while they are reproductively maturing. Therefore, properly managed livestock grazing is not incompatible with H. paradoxus conservation. Livestock grazing operations that are not managed to protect H. paradoxus occur in populations in the Grants and Roswell areas of New Mexico (Service 2005, p. 9).
The specific threats requiring special management or protections are described in the critical habitat unit descriptions below. Criteria Used To Identify Critical Habitat
We are proposing to designate critical habitat in areas that were
known at the time of listing to be occupied and that contain sufficient
PCEs to support life history functions essential for the conservation
of the species. Lands are proposed for designation based on [[Page 14333]]
sufficient PCEs being present to support the life history processes of the species. All lands contain all PCEs and support multiple life processes. We are also proposing critical habitat in areas that were not known at the time of listing to be occupied. However, we have determined that these areas are currently occupied and are essential to the conservation of the species.
We consider an area to be currently occupied if H. paradoxus was found to be present by species experts within the last 2 years (Hirsch 2006, p. 1; Poole 2006, p. 1; Ulibarri 2006, p. 1; Sivinski 2007, p. 1).
In proposing to designate critical habitat, we considered the stability of the known populations, including size and status over time. According to populationlevel analysis conducted for H. paradoxus, approximately 1,600 or more individuals is a population target that gives a high probability of having a stable population over time (Poole 2004; Sanderson 2006, p. 918). We consider the status of a population to be stable when it appears that (1) the number of new individuals in a population is equal to or greater than the number of individuals dying, and (2) the population occupies a similar or larger area over multiple survey periods. The survey and field data on which this proposed designation is based represent consistently observed populations during the last several years. Most of the sites included in this proposal were visited by species experts four or more times between 1992 and 2007; however, at a minimum each site was visited twice.
By including stable populations, we are proposing to designate currently occupied habitat that provides for important lifehistory functions, such as seed dispersal and genetic exchange, and will contribute to the longterm conservation of the species. Locations that have populations that do not support at least 1,600 individuals are usually either dependent on an inconsistent water supply or rely on small, restricted, or modified habitats. We believe that, by proposing to designate large populations, the species will persist, the potential for successful pollination is high, and genetic exchange will be facilitated.
For areas not known to be occupied at the time of listing, the Service must demonstrate that these areas are essential to the conservation of the species in order to include them in a critical habitat designation. The H. paradoxus critical habitat units shown in Table 1 in New Mexico and west Texas are sufficiently distant (40 to 100 miles (mi) (64 to 161 kilometers (km)) from one another to rule out frequent gene exchange by pollen vectors or seed dispersal. Therefore, we have determined that each of these populations, including any not known to be occupied at the time of listing, is essential to the conservation of the species because they ensure maintenance of the genetic diversity of H. paradoxus. The areas we are proposing for critical habitat designation include populations containing all of the known remaining genetic diversity within the species that are not currently under a management regime that would result in the conservation of H. paradoxus. These areas include representation of each major subbasin in the known historical range of the species (Service 2005, p. 4).
In summary, this proposed critical habitat designation includes populations of H. paradoxus and habitats that possess the physical and biological features essential to the conservation of the species. We believe the proposal: (1) Maintains PCEs in areas where large populations of H. paradoxus are known to occur; (2) maintains the current distribution, thus preserving genetic variation throughout the range of H. paradoxus and minimizing the potential effects of local extinction; (3) minimizes fragmentation within populations by establishing contiguous occurrences and maintaining existing connectivity; (4) includes sufficient pollinators; and (5) protects the seed bank to ensure longterm persistence of the species.
The proposed H. paradoxus critical habitat areas are grouped both spatially and by watershed into five larger units: WestCentral New Mexico, La Joya, Santa Rosa, Roswell/Dexter, and West Texas. The boundaries of the proposed critical habitat designation for each subunit were mapped using global positioning system (GPS) along the outside boundary of the area of occupied habitat (Pittenger 2007). We attempted to encompass only areas that contain all of the PCEs in a year of average rainfall. The elevated water table that provides conditions favorable to H. paradoxus growth is influenced by both past and current precipitation. Groundwater level is often affected by precipitation in the entire watershed from many prior years as water slowly moves through the soil and geologic features into springs and wetlands. The groundwater provides a relatively reliable, stable water source permanently saturating soils adjacent to springs and wetlands. Winter storms and monsoons provide a more dynamic source of precipitation to H. paradoxus habitat. The suitable habitat expands and contracts horizontally and laterally from the groundwaterinfluenced areas depending on the amount of annual precipitation (Sivinski 1992, p. 125). Therefore, in very wet years, suitable H. paradoxus habitat may extend beyond the mapped boundaries for critical habitat and in very dry years may shrink to a smaller area than delineated.
In a few of the subunits we include, narrow dirt roads within the mapped boundaries when these roads were present within the occupied habitat. Due to soil compaction from vehicle tracks, these roads do not provide the PCEs for H. paradoxus. They do, however, represent a small area (2 m (6 ft) wide), and they are directly adjacent to occupied habitat, so we found it too difficult, due to mapping constraints, to exclude them from the maps of proposed critical habitat. To the best of our knowledge, no other areas were included within the mapped boundaries of proposed subunits that do not possess all of the PCEs.
We were not able to obtain physical access to some private lands in order to map the boundaries of H. paradoxus habitat. We utilized U.S. Geological Survey 7.5 minute quadrangle maps to create maps that depict the habitat containing the PCEs. One of the features of 7.5 minute quadrangle maps is their accurate depiction of permanent water sources (e.g., springs and wetlands) associated with these populations. The depiction of the subunits are based on: (1) Map features, (2) limited visual observations, and (3) a knowledge of how spring/wetland habitats influence similar H. paradoxus populations in other geographic areas within the species' range.
With the exception of the narrow dirt roads discussed above, when determining proposed critical habitat boundaries, we made every effort to avoid including (within the boundaries of the map contained within this proposed rule) developed areas such as buildings, paved areas, and other structures that lack PCEs for H. paradoxus. The scale of the maps prepared under the parameters for publication within the Code of Federal Regulations may not reflect the exclusion of such developed areas.
We are proposing to designate critical habitat in areas that we have determined were occupied at the time of listing, and
that contain sufficient PCEs to support life history functions essential for the conservation of the species. Lands are proposed for designation based on sufficient PCEs being present to support the life processes of the species. We are also proposing critical habitat in areas that were not known at the time of listing to be occupied. However, we have determined that these areas are currently occupied and are essential to the conservation of the species.
Proposed Critical Habitat Designation
We are proposing five (5) units as critical habitat for H.
paradoxus. The critical habitat areas described below constitute our
best assessment currently of areas known at the time of listing to be
occupied, that contain the primary constituent elements and may require
special management, and those additional areas that were not known to
be occupied at the time of listing but were found to be essential to
the conservation of H. paradoxus. Table 1 shows the areas that were
known at time of listing to be occupied, those areas that are currently
occupied, and the threats requiring special management or protections.
Table 1.Threats and Occupancy in Areas Containing Features
Essential to the Conservation of H. Paradoxus Threats requiring
Geographic area/unit special management Known to be occupied at Currently occupied or protections the time of listing Unit 1. WestCentral New Mexico Subunit 1a. Rancho del Padre Water withdrawal, Yes....................... Yes. Spring Cienega. wetland filling and
Subunit 1b. Grants Salt Flat Wetland filling and Yes....................... Yes. Wetland. development,
Subunit 1c. Pueblo of Laguna...... Water withdrawal, Yes....................... Yes. incompatible
Unit 2. La Joya La Joya State Wildlife Management Encroachment by No........................ Yes. Area. nonnative vegetation.
Unit 3. Santa Rosa Subunit 3a. Blue Hole Cienega / Encroachment by Yes....................... Yes. Blue Hole Fish Hatchery Ponds. nonnative
vegetation; on City
mowing to edges of
ponds and filling of
Subunit 3b. Westside Spring....... Next to major road, No........................ Yes. water withdrawal,
wetland filling and
Unit 4. Roswell/Dexter Subunit 4a. Bitter Lake National Threats on Refuge Yes....................... Yes. Wildlife Refuge/ City of Roswell lands have been
Land. addressed by CCP; on
City land, water
Subunit 4b. Bitter Lake National Threats have been Yes....................... Yes. Wildlife Refuge Farm. addressed by CCP.
Subunit 4c. Oasis Dairy........... Water withdrawal, Yes....................... Yes. wetland filling and
Subunit 4d. Lea Lake at Bottomless Campgrounds and human Yes....................... Yes. Lakes State Park. trampling,
Subunit 4e. Dexter Cienega........ Water withdrawal Yes....................... Yes. wetland filling and
Unit 5. West Texas Diamond Y Spring.................. Water withdrawal, Yes....................... Yes. wetland filling and
The approximate area encompassed within each proposed critical habitat unit is shown in Table 2.
Table 2.Critical Habitat Units Proposed for H. Paradoxus [Area estimates reflect all land within proposed critical habitat unit boundaries.] Acres (Hectares) for non Geographic area/unit Land ownership inclusion and proposed Proposed critical habitat exclusion acres (hectares) Unit 1. WestCentral New Mexico Subunit 1a. Rancho del Padre Private and Tribal ............................. 25.5 (10.3) Spring Cienega.
Subunit 1b. Grants Salt Flat Private........... ............................. 62.5 (25.3) Wetland.
Subunit 1c. Pueblo of Laguna... Tribal............ undefined.................... undefined Unit 2. La Joya La Joya State Wildlife State of New ............................. 854.3 (345.7) Management Area. Mexico.
Unit 3. Santa Rosa Subunit 3a. Blue Hole Cienega/ State of New ............................. 133.9 (54.2) Blue Hole Fish Hatchery Ponds. Mexico and City
Subunit 3b. Westside Spring.... Private........... ............................. 6.4 (2.6) Unit 4. Roswell/Dexter Subunit 4a. Bitter Lake U.S. Fish and 3,480 (1408.3)............... 92.2 (37.3) National Wildlife Refuge/City Wildlife Service
of Roswell Land. and City of
Subunit 4b. Bitter Lake U.S. Fish and 686.2 (277.7)................ 0 (0) National Wildlife Refuge Farm. Wildlife Service.
Subunit 4c. Oasis Dairy........ Private........... ............................. 103.9 (42.0) Subunit 4d. Lea Lake at State of New ............................. 19.5 (7.9) Bottomless Lakes State Park. Mexico.
Subunit 4e. Dexter Cienega..... Private........... ............................. 41.4 (16.8) Unit 5. West Texas Diamond Y Spring............... Private........... ............................. 239.7 (97.0)
Total Acres (Hectares)..... .................. 4,166.2 (3094.3)............. 1,579.3 (639.1)
Below, we present brief descriptions of all subunits, and reasons why they do or do not meet the definition of critical habitat for H. paradoxus (see ``Criteria Used to Identify Critical Habitat'' section above).
Unit 1: WestCentral New Mexico
Subunit 1a is located at Rancho del Padre Spring Cienega. This subunit is 25.5 ac (10.3 ha) in Cibola County, New Mexico. The subunit consists of an area of Rancho del Padre Spring Cienega from the spring on the south side of I40 then northeast approximately 0.5 mi (0.8 km) to the Rio San Jose.
This population consists of large patches of several thousand plants on areas owned by two private landowners (22.6 ac (9.1 ha)) and the Pueblo of Acoma (2.9 ac (1.2 ha). This site was known to be occupied at the time of listing and has been visited or observed from a public rightofway by species experts during four or more seasons. These experts have found the site occupied by H. paradoxus on every visit (Sivinski 2007a, p. 3). This unit is currently occupied, contains all of the PCEs, and is threatened by water withdrawal, wetland filling and development, and livestock grazing during H. paradoxus's growing and flowering season. Therefore, special management or protections may be required to minimize these threats. At this time, we are not aware of any management plans that address H. paradoxus in this area.
In January 2007, we found that the Pueblo of Acoma owned the land that contained part of this population. Although we are not aware of any management plans that address H. paradoxus in this area, if the Pueblo or other landowners request, we will provide technical assistance on management of the species and the development of a management plan. We will consult with the Pueblo and other landowners during the proposal period to evaluate whether these lands should be considered for exclusion in the final designation. As such, we may consider excluding this area, including lands owned by the Pueblo of Acoma, from the final critical habitat designation pursuant to section 4(b)(2) of the Act (see ``Application of Section 4(b)(2) of the Act'' section below for additional information).
Subunit 1b is located at Grants Salt Flat Wetland. This subunit is 62.5 ac (25.3 ha) in Cibola County, New Mexico. The subunit consists of an area of wet alkaline playa between railroad tracks and I40 and west of Hwy 122 (Road from Interstate to downtown Grants). Playas are nearly level areas at the bottom of undrained desert basins that are sometimes covered in water.
This population consists of large patches of several thousand plants mostly on private property. This site was known to be occupied at the time of listing and has been visited or observed from a public rightofway by species experts during four or more seasons. These experts have found the site occupied by H. paradoxus on every visit (Sivinski 2007). This unit is currently occupied, contains all of the PCEs, and is threatened by wetland filling and development, encroachment by nonnative vegetation, and livestock management not compatible with H. paradoxus physiology. Therefore, special management or protections may be required to minimize these threats. At this time, we are not aware of any management plans that address H. paradoxus in this area.
Subunit 1c is located at the Pueblo of Laguna. This subunit's acreage is undefined in Valencia County, New Mexico. The subunit consists of an area along the Rio San Jose, South Garcia, New Mexico.
At this site, H. paradoxus plants are located in patches at springs along the Rio San Jose. Each patch consists of several hundred to several thousand plants, and a few scattered plants grow along the river (Sivinski 1995, p. 4). The entire site belongs to the Pueblo of Laguna. This site was known to be occupied at the time of listing, is currently occupied, contains all of the PCEs, and is threatened by water withdrawal, encroachment by nonnative vegetation, and livestock grazing during the H. paradoxus's growing and flowering season. The Pueblo is developing a management plan for H. paradoxus. On the basis of this plan and our partnership with the Pueblo of Laguna, we anticipate excluding this area from the final critical habitat designation pursuant to section 4(b)(2) of the Act (see ``Application of Section 4(b)(2) of the Act'' section below for additional information).
Unit 2: La Joya
Unit 2 is located in the La Joya State Wildlife Management Area. This unit is 854.3 ac (345.7 ha) in Socorro County, New Mexico. This population is located about 7 mi (11 km) south of Bernardo within Socorro County near the confluence of the Rio Grande and the Rio Puerco. The La Joya population is bounded to the west by I25 and to the east by the Unit 7 Drain. The north boundary is adjacent to River Mile 126 of the Rio Grande and the south boundary is adjacent to River Mile 123.
One of the largest populations of H. paradoxus occurs on the Rio Grande at La Joya. This Rio Grande population consists of 100,000 to 1,000,000 plants and occurs on the La Joya State Waterfowl Management Area (Service 2005, p. 4). It is within the La Joya Unit of the Ladd S. Gordon Waterfowl Complex. This property is owned by the New Mexico State Game Commission. It is managed by the New Mexico Department of Game and Fish for migratory waterfowl habitat, which is compatible with preservation of wetlands for H. paradoxus.
This area was not known to be occupied at the time of listing. It was discovered in 2004. This site has been found to be occupied every year since then by one of the largest populations of H. paradoxus in the range of the species (Hirsch 2006, p. 1). This unit is currently occupied by a stable population (Blue Earth Ecological Consultants, Inc. 2007c, p. 3), contains all of the PCEs, and is threatened by encroachment of nonnative vegetation.
We have determined this site to be essential to the conservation of the species because it is currently occupied by a stable, very large population of H. paradoxus, and is sufficiently distant (over 40 mi (64 km)) from other populations to serve as an additional locality that contributes to the conservation of genetic variation. This population may prevent extirpation of the species resulting from encroachment of nonnative species, degradation of habitat, or a catastrophic event because it is the sole representative located in an area distinct from any other population in the range of the species. As such, it may contain genetic variation not found anywhere else in the range of the species. Because the water source for this population is very stable, this population can be expected to persist in very large numbers every year.
Unit 3: Santa Rosa
Subunit 3a is located at Blue Hole Cienega/Blue Hole Fish Hatchery Ponds. This subunit is 127.6 ac (51.6 ha) in Guadalupe County, New Mexico. The Blue Hole Fish Hatchery Ponds population of H. paradoxus is part of the same population as and nearly contiguous with the Blue Hole Cienega in Santa Rosa, New Mexico. The Blue Hole Fish Hatchery Ponds is immediately north of Blue Hole Road and the Blue Hole Cienega is immediately south.
This subunit was known to be occupied at the time of listing and has been visited by species experts during four or more seasons. These experts found the subunit to be occupied by H. paradoxus on every visit (Sivinski 2007a, p. 2). This subunit is currently occupied (Blue Earth Ecological Consultants, Inc. 2006, p.1), contains all of the PCEs, and is threatened by encroachment by nonnative vegetation, wetland filling, and park maintenance activities. Therefore, special management or protections may be required to minimize these threats. At this time, we are not aware of any management plans that address H. paradoxus in this area.
The part of this population at Blue Hole Cienega consists of 100,000 to 1,000,000 plants and is the largest population of H. paradoxus in the upper Pecos River basin. A nontraditional section 6 grant was awarded to the State of New Mexico in 2004 for acquisition of the Blue Hole Cienega, which was finalized in July 2005. At this site, shallow ground water seeps to the surface to create cienega communities. This subunit is currently occupied, contains all of the PCEs, and is threatened by encroachment by nonnative vegetation. Therefore, special management or protections may be required to minimize these threats. At this time, we are not aware of any management plans that address H. paradoxus in this area.
The part of this population at the Blue Hole Fish Hatchery Ponds is owned and administered by the City of Santa Rosa and consists of approximately 1,000 plants. This site is maintained as a recreational area. Park maintenance staff have voluntarily stopped mowing and cutting the sunflower during the months of August and September. An information kiosk on endangered wetland plants is being planned for the bike/foot path along the creek at Blue Hole Park.
This subunit was confirmed to be occupied in 2006 (Blue Earth Ecological Consultants, Inc. 2006, p. 4), contains all of the PCEs, and is threatened by encroachment from nonnative vegetation, wetland filling, and park maintenance activities. Therefore, special management or protections may be required to minimize these threats. The City of Santa Rosa is willing to participate in the development of a conservation plan. We will work with the City in this effort to develop and implement a plan to conserve this population.
Subunit 3b is located at Westside Spring. This subunit is 6.4 ac (2.6 ha) in Santa Rosa, Guadalupe County, New Mexico. The subunit consists of an area along an unnamed spring on west side of Pecos River, located to the west of River Road and 1 mi (1.6 km) east of Highway 54.
This area was not known to be occupied at the time of listing. It was discovered in 2005, and contained thousands of plants. This site was found to be occupied again in 2006 by a species expert observing from a public rightofway (Sivinski 2007). This subunit is currently occupied by a stable population, contains all of the PCEs, and is threatened by proximity to a major road, water withdrawal, wetland filling and development, and encroachment of nonnative vegetation. Therefore, special management or protections may be required to minimize these threats. At this time, we are not aware of any management plans that address H. paradoxus in this area.
We have determined this site to be essential to the conservation of
the species because it is currently occupied by a stable, large
population of H. paradoxus, and is one of only two stable, large populations in Unit 3. This
subunit is sufficiently distant (over 40 mi (64 km)) from other populations to serve as an additional locality that contributes to the conservation of genetic variation. This population may prevent extirpation of the species resulting from encroachment of nonnative species, degradation of habitat, or a catastrophic event that could occur to the other subunit in Unit 3. It may also contain genetic variation specific to this Unit. Because the water source for this population is very stable, this population can be expected to persist in large numbers every year.
Unit 4: Roswell/Dexter
Subunit 4a is located at Bitter Lake National Wildlife Refuge/ City of Roswell Land. The subunit is 3,572.2 ac (1,445.6 ha) in Chaves County, New Mexico. This subunit is located approximately 5 mi (8 km) northeast of Roswell.
One of the largest H. paradoxus populations occurs on the Bitter Lake National Wildlife Refuge in New Mexico on Federal lands managed by the Service. Several hundred thousand to a few million plants occur nearly continuously along the shores and small islands of all the artificial lakes in the southern unit of the refuge. Also a few small patches of plants occur on the west side of Bitter Lake Playa and adjacent springs on Lost River.
This area was known to be occupied at the time of listing and has been visited by species experts during four or more seasons. These experts found the site occupied by H. paradoxus on every visit (Ulibarri 2006a, p. 1; Sivinski 2007a, p. 2; Blue Earth Ecological Consultants, Inc. 2007a, p. 3). This area is currently occupied and contains all of the PCEs. However, this area is covered by a final Comprehensive Conservation Plan (CCP) that manages H. paradoxus in a manner that provides a conservation benefit to the species; therefore, we believe this area does not require special management or protections. As this area does not meet the definition of critical habitat, the portion of this subunit within Bitter Lake National Wildlife Refuge has not been included in this critical habitat proposal. Please see ``Application of Section 3(5)(a) of the Act'' below for additional discussion.
Approximately 92.2 ac (37.3 ha) of land adjacent to the southwest boundary of Bitter Lake National Wildlife Refuge is owned by the City of Roswell. There are a few thousand H. paradoxus on this land. It is located on a large alkaline cienega adjoining the Bitter Lake National Wildlife Refuge population. This site was known to be occupied at the time of listing and has been visited by species experts during at least two seasons. These experts have found it occupied by H. paradoxus on both visits (Sivinski 2007a, p. 2). This unit is currently occupied (Blue Earth Ecological Consultants, Inc. 2007c, p. 3), contains all of the PCEs, and is threatened by water withdrawal, wetland filling and development, and livestock grazing during H. paradoxus's growing and flowering season. Therefore, special management or protections may be required to minimize these threats. At this time, we are not aware of any management plans that address H. paradoxus in this portion of the subunit.
Subunit 4b is located at Bitter Lake National Wildlife Refuge (Refuge) Farm. This subunit is 686.2 ac (277.7 ha) in Chaves County, New Mexico. The subunit is located approximately 5 mi (8 km) east of Roswell on the west side of the Pecos River.
This area consists of a few large patches with several thousand plants on alkaline
FOR FURTHER INFORMATION CONTACT
Wally ``J'' Murphy, Field Supervisor, New Mexico Ecological Services Field Office, 2105 Osuna Rd NE, Albuquerque, NM 87113; telephone 505/3462525; facsimile 505/3462542. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 8008778339.