EFFECTIVE DATE: This final rule becomes effective on May 1, 2008.
ADDRESSES: This final rule and final economic analysis is available on the Internet at http://www.regulations.gov and http://www.fws.gov/southwest/es/newmexico/. Supporting documentation we used in preparing this final rule will be available for public inspection, by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, New Mexico Ecological Services Field Office, 2105 Osuna Road, NE., Albuquerque, New Mexico 87113; telephone 505-346-2525; facsimile 505-346-2542.
FOR FURTHER INFORMATION CONTACT: Wally "J" Murphy, Field Supervisor, U.S. Fish and Wildlife Service, New Mexico Ecological Services Field Office (see ADDRESSES section). If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-877-8339.
SUPPLEMENTARY INFORMATION: It is our intent to discuss only those topics directly relevant to the development and designation of critical habitat in this final rule. For additional information on Helianthus paradoxus, refer to the proposed critical habitat rule published in the Federal Register on March 27, 2007 (72 FR 14328), the final listing rule published in the Federal Register on October 20, 1999 (64 FR 56582), or the Pecos Sunflower Recovery Plan available on the Internet at http://www.regulations.gov and http://www.ecos.fws.gov/docs/recovery_plans/2005/050915.pdf.
Previous Federal Actions
On March 27, 2007, we published a proposed rule to designate critical habitat for Helianthus paradoxus (72 FR 14328). We solicited data and comments from the public on the proposed rule. The comment period opened on March 27, 2007, and closed on May 29, 2007. On December 11, 2007, we published a notice announcing the availability of the draft economic analysis, draft environmental assessment, and the reopening of the public comment period (72 FR 70269). We also announced a revision to proposed critical habitat Unit 4 and a clarification of Unit 5. Section 4(b)(2) of the Act requires that we consider economic impacts, impacts to national security, and other relevant impacts prior to making a final decision on what areas to designate as critical habitat. We solicited data and comments from the public on these draft documents, as well as on all aspects of our proposal, so that we could consider these in this final determination. This comment period closed on January 10, 2008. For more information on previous Federal actions concerning Helianthus paradoxus, please refer to the proposed critical habitat rule published in the Federal Register on March 27, 2007 (72 FR 14328), and the final listing rule published in the Federal Register on October 20, 1999 (64 FR 56582).
Summary of Comments and Recommendations
We requested comments from the public on the proposed designation of critical habitat for Helianthus paradoxus during two comment periods. The first comment period associated with the publication of the proposed rule (72 FR 14328) opened on March 17, 2007, and closed on May 29, 2007. We did not receive any requests for a public hearing during this comment period. We also requested comments on the proposed critical habitat designation, associated draft economic analysis, and draft environmental assessment during a comment period that opened December 11, 2007, and closed on January 10, 2008 (72 FR 70269). We contacted appropriate Federal, State, and local agencies; scientific organizations; and other interested parties and invited them to comment on the proposed rule and/or draft economic analysis and draft environmental assessment during these two comment periods.
During the first comment period, we received seven comments directly addressing the proposed critical habitat designation: one from a State agency, one from a Federal agency, and five from organizations or individuals. During the second comment period, we received seven comments addressing the proposed critical habitat designation, the draft economic analysis, or the draft environmental assessment. All substantive information provided during both public comment periods has been either incorporated directly into this final determination or addressed below.
Peer Review
In accordance with our policy published on July 1, 1994 (59 FR 34270), we solicited expert opinions from three knowledgeable individuals with scientific expertise that included familiarity with the species, the geographic region in which the species occurs, and conservation biology principles. We received a response from one of the three peer reviewers from which we requested comments. The peer reviewer generally agreed that the physical and biological features identified in the proposed designation for Helianthus paradoxus were accurate. However, the peer reviewer suggested that the designation should be expanded to include additional areas and increase the size of existing units.
We reviewed all comments received from the public and the peer reviewer for substantive issues and new information regarding the designation of critical habitat for Helianthus paradoxus, and address them in the following summary.
Peer Reviewer Comments
1. Comment: The peer reviewer questioned why the proposed critical habitat designation did not include additional sites that were occupied by Helianthus paradoxus at the time of listing.
Our Response: In the notice of availability published on December 11, 2007 (72 FR 70269), we proposed to include two additional sites (Subunits 4a and 4b) within the designation. Nevertheless, we recognize that this critical habitat designation does not include all of the areas that are occupied by H. paradoxus throughout the species' range. Additional sites were not proposed as critical habitat because it is unclear whether they are stable or support sufficient numbers of plants to be considered stable and therefore do not meet our criteria for designation as critical habitat for H. paradoxus (Blue Earth Ecological Consultants, Inc. 2007b, p. 3; Poole 1992, p. 27; 2006, p. 3). These additional areas that were not proposed as critical habitat 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. Please see the "Criteria Used to Identify Critical Habitat" section below for more discussion of stable populations.
2. Comment: The peer reviewer stated that the map of Unit 5 at Diamond Y Spring Preserve in West Texas does not depict proposed critical habitat on the north side of Leon Creek, even though the area is occupied by Helianthus paradoxus.
Our Response: We reviewed the map and description of the boundaries for Unit 5 and found that the map in the proposed rule incorrectly displayed Unit 5. However, the textual description of the boundaries is accurate. We have corrected the map in this final rule. The maps published in the Federal Register are for illustration purposes and the amount of detail that can be published is limited. If additional clarification is necessary, contact the New Mexico Ecological Services Field Office (see ADDRESSES section).
3. Comment: The peer reviewer questioned whether Unit 5 contained a small group of plants downstream of The Nature Conservancy's Diamond Y Spring Preserve at a nearby highway right-of-way.
Our Response: In our notice of availability published on December, 11, 2007 (72 FR 70269), we clarified that the right-of-way site should not have been included in the unit description. Our notice revised proposed Unit 5 and did not include the right-of-way as critical habitat because this small area is not known to be able to support sufficient numbers of plants to be considered stable (Blue Earth Ecological Consultants, Inc. 2007b, p 3; Poole 2006, p. 3). Please see the "Criteria Used to Identify Critical Habitat" section below for more discussion of stable populations.
4. Comment: The peer reviewer questioned whether wetland filling and development has been documented as a threat within Unit 5.
Our Response: Our final economic analysis found that the land area at Diamond Y Spring Preserve proposed as critical habitat in Unit 5 does not face residential development pressure. However, the subsurface mineral rights are not owned by the landowners. Therefore, a future potential threat of wetland filling and development for drilling pads and access roads for oil and gas exists (see pages 3-10 of the final economic analysis). The information in the "Final Critical Habitat Designation" section below has been updated to reflect this information.
5. Comment: The peer reviewer questioned whether landowners were contacted prior to critical habitat being proposed for designation.
Our Response: We attempted to contact all of the private landowners on February 28, 2007, prior to the publication of the proposed rule. Furthermore, we sent the proposed rule and December 11, 2007, notice of availability to all interested parties, including landowners. Additionally, contractors contacted affected private parties during the development of the draft and final economic analyses.
Comments From the Public
6. Comment: The Service should exclude the La Joya Wildlife Management Area (Unit 2) from the final designation.
Our Response: We agree. After conducting an analysis under section 4(b)(2) of the Act, we concluded that the benefits of excluding Unit 2 from the final designation outweigh the benefits of inclusion (see "Exclusions under Section 4(b)(2)" section).
--This is a summary of a Federal Register article originally published on the page number listed below--
Final rule.
CFR Part: "50 CFR Part 17"
RIN Number: "RIN 1018-AV02"
Citation: "73 FR 17762"
Document Number: "FWS-R2-ES-2008-0002; 92210-1117-0000-B4"
Federal Register Page Number: "17762"
"Rules and Regulations"
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