[Federal Register Volume 72, Number 58 (Tuesday, March 27, 2007)]
[Proposed Rules]
[Pages 14328-14366]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-1396]



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Part II





Department of the Interior





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50 CFR Part 17



 Endangered and Threatened Wildlife and Plants; Proposed Designation of 
Critical Habitat for the Pecos Sunflower (Helianthus paradoxus); 
Proposed Rule

Federal Register / Vol. 72, No. 58 / Tuesday, March 27, 2007 / 
Proposed Rules

[[Page 14328]]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AV02


Endangered and Threatened Wildlife and Plants; Proposed 
Designation of Critical Habitat for the Pecos Sunflower (Helianthus 
paradoxus)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: 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.

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.

ADDRESSES: If you wish to comment, you may submit your comments and 
materials concerning this proposal by any one of several methods:
    1. Submit written comments and information by mail or hand-delivery 
to Wally ``J'' Murphy, Field Supervisor, U.S. Fish and Wildlife 
Service, New Mexico Ecological Services Field Office, 2105 Osuna Rd NE, 
Albuquerque, NM 87113.
    2. Send comments by electronic mail (e-mail) to: <a href="/cdn-cgi/l/email-protection#7e2c4c38293b213f323e18090d50191108"><span class="__cf_email__" data-cfemail="f6a4c4b0a1b3a9b7bab6908185d8919980">[email protected]</span></a>.
    Please see the Public Comments Solicited section below for file 
format and other information about electronic filing.
    3. Fax your comments to 505/346-2542.
    4. Go to the Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
    Comments and materials received, as well as supporting 
documentation used in the preparation of this proposed rule, will be 
available for public inspection, by appointment, during normal business 
hours at the New Mexico Ecological Services Field Office, 2105 Osuna Rd 
NE, Albuquerque, NM 87113 (telephone 505/346-2525).

FOR FURTHER INFORMATION CONTACT: Wally ``J'' Murphy, Field Supervisor, 
New Mexico Ecological Services Field Office, 2105 Osuna Rd NE, 
Albuquerque, NM 87113; telephone 505/346-2525; facsimile 505/346-2542. 
Persons who use a telecommunications device for the deaf (TDD) may call 
the Federal Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

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 e-mail 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 505/346-2525. Please note that the e-mail 
address <a href="/cdn-cgi/l/email-protection#4f1d7d09180a100e030f29383c61282039"><span class="__cf_email__" data-cfemail="d684e490819389979a96b0a1a5f8b1b9a0">[email protected]</span></a> will be closed out at the termination of the 
public comment period.
    Before including your address, phone number, e-mail address, or 
other personal identifying information in your comment, you should be 
aware that your entire comment--including your personal identifying 
information--may 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 decision-making 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,

[[Page 14329]]

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, time-consuming, 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 ever-increasing series of court orders and 
court-approved 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 court-ordered designations have left 
the Service with limited ability to provide for public participation or 
to ensure a defect-free 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.

Background

    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. 272-274). 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 west-central and eastern New Mexico and adjacent 
Trans-Pecos 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 
right-of-way. 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

[[Page 14330]]

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 medium-sized 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 re-evaluate 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

    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. 106-554; 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 peer-reviewed 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. 
106-554; 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.

[[Page 14331]]

    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 peer-reviewed 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 peer-reviewed 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. 1-6; Sivinski 1992, pp. 124-126; Sivinski 
1995, pp. 1-11).

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 re-establish 
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, well-defined 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. 
1-2; 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 ray-like 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 northern-most New Mexico 
populations. The peak flowering time for the southern-most population 
in West Texas is later in October. Seeds fill and mature during October 
and November and then require a 2- to 3-month after-ripening 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.

[[Page 14332]]

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 sub-irrigated 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 arid-land 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. 1-2; 
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 non-flowering 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.

Occupancy

    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).

Stability

    In proposing to designate critical habitat, we considered the 
stability of the known populations, including size and status over 
time. According to population-level 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 life-history 
functions, such as seed dispersal and genetic exchange, and will 
contribute to the long-term 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.

Essential

    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 long-term persistence of the species.

Mapping

    The proposed H. paradoxus critical habitat areas are grouped both 
spatially and by watershed into five larger units: West-Central 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 groundwater-influenced 
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

[[Page 14334]]

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. West-Central New Mexico
----------------------------------------------------------------------------------------------------------------
Subunit 1a. Rancho del Padre        Water withdrawal,      Yes.......................  Yes.
 Spring Cienega.                     wetland filling and
                                     development,
                                     incompatible
                                     livestock management.
Subunit 1b. Grants Salt Flat        Wetland filling and    Yes.......................  Yes.
 Wetland.                            development,
                                     encroachment by
                                     nonnative
                                     vegetation,incompati
                                     ble livestock
                                     management.
Subunit 1c. Pueblo of Laguna......  Water withdrawal,      Yes.......................  Yes.
                                     incompatible
                                     livestock
                                     management,
                                     encroachment by
                                     nonnative vegetation.
----------------------------------------------------------------------------------------------------------------
                                                 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
                                     land, wetland
                                     filling and
                                     recreation use,
                                     mowing to edges of
                                     ponds, dredging
                                     ponds and filling of
                                     wetlands.
Subunit 3b. Westside Spring.......  Next to major road,    No........................  Yes.
                                     water withdrawal,
                                     wetland filling and
                                     development,
                                     encroachment by
                                     nonnative vegetation.
----------------------------------------------------------------------------------------------------------------
                                             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
                                     withdrawal, wetland
                                     filling and
                                     development,
                                     incompatible
                                     livestock management.
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
                                     development,
                                     incompatible
                                     livestock management.
Subunit 4d. Lea Lake at Bottomless  Campgrounds and human  Yes.......................  Yes.
 Lakes State Park.                   trampling,
                                     encroachment by
                                     nonnative vegetation.
Subunit 4e. Dexter Cienega........  Water withdrawal       Yes.......................  Yes.
                                     wetland filling and
                                     development,
                                     incompatible
                                     livestock management.
----------------------------------------------------------------------------------------------------------------
                                               Unit 5. West Texas
----------------------------------------------------------------------------------------------------------------
Diamond Y Spring..................  Water withdrawal,      Yes.......................  Yes.
                                     wetland filling and
                                     development,
                                     incompatible
                                     livestock management.
----------------------------------------------------------------------------------------------------------------

    The approximate area encompassed within each proposed critical 
habitat unit is shown in Table 2.

[[Page 14335]]



                           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. West-Central 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
                                  of Roswell.
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
                                  Roswell.
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: West-Central 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 I-40 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 right-of-way 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 I-40 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 
right-of-way 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.

[[Page 14336]]

    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 I-25 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 non-traditional 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 right-of-way (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

[[Page 14337]]

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 seeps behind the dikes on the western edge of the 
Refuge Farm south of Highway 380. This land is owned and managed by the 
Service as a grain farm and feeding area for migratory birds. The 
eastern portion of the Refuge Farm is a marshy spring-seep area that 
contains a large population of H. paradoxus. The wet soils in this 
population are not cultivated.
    This site was known to be occupied at the time of listing and has 
been visited by species experts during four or more seasons. The 
experts found the site occupied by H. paradoxus on every visit 
(Ulibarri 2006b, p. 1; Sivinski 2007a, p. 2; Blue Earth Ecological 
Consultants, Inc. 2007a, p. 3). This subunit is currently occupied and 
contains all of the PCEs. However, this area is covered by a final 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, it has not been included in the 
critical habitat proposal. Please see ``Application of Section 3(5)(a) 
of the Act'' below for additional discussion.
    Subunit 4c is located at the Oasis Dairy. This subunit is 103.9 ac 
(42.0 ha) Chaves County, New Mexico. The subunit is located on the east 
side of Roswell, west side of Pecos River Valley, approximately 4.5 mi 
(7.2 km) southeast of the Hwy 380 bridge, and beside an unnamed spring 
approximately 0.6 mi (1 km) west of the Pecos River and 5.5 mi (8.9 km) 
south of Highway 380.
    This site contains a very large, dense patch of several thousand H. 
paradoxus in a low alkaline sink area approximately 0.5 mi (0.8 km) 
west of the Pecos River on private land. It also contains a large patch 
with many thousands of H. paradoxus in a low area below a spring, also 
on private land. This site was known to be occupied at the time of 
listing and has been visited by species experts during at least three 
seasons. These experts found the site occupied by H. paradoxus on every 
visit (Sivinski 2007a, p. 3). This subunit is currently occupied, 
contains all of the PCEs, and is threatened by livestock grazing during 
H. paradoxus's growing and flowering season, water withdrawal, and 
wetland filling and development. 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 4d is located at Lea Lake at Bottomless Lakes State Park. 
This subunit is 19.5 ac (7.9 ha) in Chaves County, New Mexico. It 
includes the wet margins of Lea Lake.
    This site contains a few thousand plants on the riparian margins of 
Lea Lake. This land belongs to the State of New Mexico and is managed 
by the New Mexico Parks and Recreation Division. Lea Lake is used as a 
picnic area and campground for the State Park. This site 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 (Sivinski 2007a, p. 3). This 
subunit is currently occupied (Sivinski 2007a, p. 3; Blue Earth 
Ecological Consultants, Inc. 2007a, p. 3), contains all of the PCEs, 
and is threatened by encroachment of nonnative vegetation, and 
recreational 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.
    Subunit 4e is located at Dexter Cienega. This subunit is 41.4 ac 
(16.8 ha) in Chaves County, New Mexico. The subunit is located in a 
small valley west of the Pecos River, east of the Hagerman Irrigation 
Canal, and 2.9 mi (4.7 km) north of Dexter.
    This site consists of several thousand plants on private land along 
a wide, boggy drainage bottom. This site was known to be occupied at 
the time of listing based upon observations from a public right-of-way 
by species experts during at least three seasons (Sivinski 2007a, p. 
2). This subunit is currently occupied, contains all of the PCEs, and

[[Page 14338]]

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.

Unit 5: West Texas

    This unit is located at Diamond Y Spring. It is 239.7 ac (97.0 ha) 
in Pecos County, Texas. This unit is located approximately 12 mi (20 
km) north-northwest of Fort Stockton, Texas.
    The Nature Conservancy owns a very large area of habitat for H. 
paradoxus that contains 100,000 to 1,000,000 plants within its Diamond 
Y Spring Preserve near Fort Stockton, Pecos County, Texas. This is the 
type locality, or location from which the species was first described. 
It consists of a large population with several hundred thousand to one 
million plants at The Nature Conservancy's Diamond Y Spring Preserve, 
and a small group of plants downstream at a nearby highway right-of-
way, and another small group of plants on adjacent private land. This 
site 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 (Poole 2006, p. 
2). This unit is currently occupied (Blue Earth Ecological Consultants, 
Inc. 2007b, p. 3) and contains all of the PCEs. On The Nature 
Conservancy land, H. paradoxus is threatened by water withdrawal. The 
Nature Conservancy land was purchased to protect this plant and other 
rare or endangered aquatic species in the Diamond Y Spring system. This 
habitat is managed for conservation of these species (Service 2005, p. 
12). Diamond Y Spring Preserve recently expanded from 1,500 to 4,000 
acres. On the private land, H. paradoxus has the same threat as above, 
plus 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 completed management plans that address H. 
paradoxus in this area.
    Table 3 below provides approximate area of lands containing 
features essential to the conservation of the species, lands not 
included in proposed critical habitat, lands considered for exclusion 
from the final critical habitat rule, and reasons why we are not 
including those lands in proposed critical habitat or considering those 
lands for exclusion from the final critical habitat rule.

                           Table 3.--Non-inclusions and Proposed Exclusions by Subunit
----------------------------------------------------------------------------------------------------------------
                                   Reason for non-
   Subunit/geographical area        inclusion or           Acres  (hectares)          Proposed exclusion acres
                                 proposed exclusion                                          (hectares)
----------------------------------------------------------------------------------------------------------------
Subunit 1c. Pueblo of Laguna...  Section 4(b)(2) of  Undefined....................  Undefined
                                  the Act.
Subunit 4a. Bitter Lake          Section 3(5)(a) of  3,480.0 (1,408.3)............  3,480.0 (1,408.3)
 National Wildlife Refuge.        the Act.
Subunit 4b. Bitter Lake          Section 3(5) (a)    686.2 (277.7)................  686.2 (277.7)
 National Wildlife Refuge Farm.   of the Act.
----------------------------------------------------------------------------------------------------------------

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7 of the Act requires Federal agencies, including the 
Service, to ensure that actions they fund, authorize, or carry out are 
not likely to destroy or adversely modify critical habitat. In our 
regulations at 50 CFR 402.02, we define destruction or adverse 
modification as ``a direct or indirect alteration that appreciably 
diminishes the value of critical habitat for both the survival and 
recovery of a listed species. Such alterations include, but are not 
limited to, alterations adversely modifying any of those physical or 
biological features that were the basis for determining the habitat to 
be critical.'' However, recent decisions by the 5th and 9th Circuit 
Court of Appeals have invalidated this definition (see Gifford Pinchot 
Task Force v. U.S. Fish and Wildlife Service, 378 F. 3d 1059 (9th Cir 
2004) and Sierra Club v. U.S. Fish and Wildlife Service et al., 245 
F.3d 434, 442F (5th Cir 2001)). Pursuant to current national policy and 
the statutory provisions of the Act, destruction or adverse 
modification is determined on the basis of whether, with implementation 
of the proposed Federal action, the affected critical habitat would 
remain functional (or retain the current ability for the primary 
constituent elements to be functionally established) to serve the 
intended conservation role for the species.
    Section 7(a) of the Act requires Federal agencies, including the 
Service, 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 proposed or designated. Regulations 
implementing this interagency cooperation provision of the Act are 
codified at 50 CFR part 402.
    Section 7(a)(4) of the Act requires Federal agencies to confer with 
us on any action that is likely to jeopardize the continued existence 
of a proposed species or result in destruction or adverse modification 
of proposed critical habitat. This is a procedural requirement only. 
However, once a proposed species becomes listed, or proposed critical 
habitat is designated as final, the full prohibitions of section 
7(a)(2) apply to any Federal action. The primary utility of the 
conference procedures is to maximize the opportunity for a Federal 
agency to adequately consider proposed species and critical habitat and 
avoid potential delays in implementing their proposed action because of 
the section 7(a)(2) compliance process, should those species be listed 
or the critical habitat designated.
    Under conference procedures, the Service may provide advisory 
conservation recommendations to assist the agency in eliminating 
conflicts that may be caused by the proposed action. The Service may 
conduct either informal or formal conferences. Informal conferences are 
typically used if the proposed action is not likely to have any adverse 
effects to the proposed species or proposed critical habitat. Formal 
conferences are typically used when the Federal agency or the Service 
believes the proposed action is likely to cause adverse effects to 
proposed species or critical habitat, inclusive of those that may cause 
jeopardy or adverse modification.
    The results of an informal conference are typically transmitted in 
a conference report, while the results of a formal conference are 
typically transmitted in a conference opinion. Conference opinions on 
proposed critical habitat are

[[Page 14339]]

typically prepared according to 50 CFR 402.14, as if the proposed 
critical habitat were designated. We may adopt the conference opinion 
as the biological opinion when the critical habitat is designated, if 
no substantial new information or changes in the action alter the 
content of the opinion (see 50 CFR 402.10(d)). As noted above, any 
conservation recommendations in a conference report or opinion are 
strictly advisory.
    If a species is listed or critical habitat is designated, section 
7(a)(2) of the Act 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 (action agency) 
must enter into consultation with us. As a result of this consultation, 
compliance with the requirements of section 7(a)(2) will be documented 
through the Service's issuance of: (1) A concurrence letter for Federal 
actions that may affect, but are not likely to adversely affect, listed 
species or critical habitat; or (2) a biological opinion for Federal 
actions that may affect, and are likely to adversely affect, listed 
species or critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to result in jeopardy to a listed species or the destruction or 
adverse modification of critical habitat, we also provide reasonable 
and prudent alternatives to the project, if any are identifiable. 
``Reasonable and prudent alternatives'' are defined at 50 CFR 402.02 as 
alternative actions identified during consultation that can be 
implemented in a manner consistent with the intended purpose of the 
action, that are consistent with the scope of the Federal agency's 
legal authority and jurisdiction, that are economically and 
technologically feasible, and that the Director believes would avoid 
jeopardy to the listed species or destruction or adverse modification 
of critical habitat. Reasonable and prudent alternatives can vary from 
slight project modifications to extensive redesign or relocation of the 
project. Costs associated with implementing a reasonable and prudent 
alternative are similarly variable.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where a new 
species is listed or critical habitat is subsequently designated that 
may be affected and the Federal agency has retained discretionary 
involvement or control over the action or such discretionary 
involvement or control is authorized by law. Consequently, some Federal 
agencies may request reinitiation of consultation with us on actions 
for which formal consultation has been completed, if those actions may 
affect subsequently listed species or designated critical habitat or 
adversely modify or destroy proposed critical habitat.
    Federal activities that may affect H. paradoxus or its designated 
critical habitat will require section 7 consultation under the Act. 
Activities on State, Tribal, local or private lands requiring a Federal 
permit (such as a permit from the U.S. Army Corps of Engineers under 
section 404 of the Clean Water Act or a permit under section 
10(a)(1)(B) of the Act from the Service) or involving some other 
Federal action (such as funding from the Federal Highway 
Administration, Federal Aviation Administration, or the Federal 
Emergency Management Agency) will also be subject to the section 7 
consultation process. Federal actions not affecting listed species or 
critical habitat, and actions on State, Tribal, local or private lands 
that are not federally funded, authorized, or permitted, do not require 
section 7 consultations.

Application of the Jeopardy and Adverse Modification Standards for 
Actions Involving Effects to Helianthus paradoxus and Its Critical 
Habitat

Jeopardy Standard
    The Service has applied an analytical framework for H. paradoxus 
jeopardy analyses that relies heavily on the importance of core area 
populations to the survival and recovery of H. paradoxus. The section 
7(a)(2) analysis is focused not only on these populations but also on 
the habitat conditions necessary to support them.
    The jeopardy analysis usually expresses the survival and recovery 
needs of H. paradoxus in a qualitative fashion without making 
distinctions between what is necessary for survival and what is 
necessary for recovery. Generally, if a proposed Federal action is 
incompatible with the viability of the affected core area 
population(s), inclusive of associated habitat conditions, a jeopardy 
finding is warranted because of the relationship of each core area 
population to the survival and recovery of the species as a whole.
Adverse Modification Standard
    For the reasons described in the Director's December 9, 2004 
memorandum, the key factor related to the adverse modification 
determination is whether, with implementation of the proposed Federal 
action, the affected critical habitat would remain functional (or 
retain the current ability for the primary constituent elements to be 
functionally established) to serve the intended conservation role for 
the species. Generally, the conservation role of H. paradoxus critical 
habitat units is to support viable core area populations.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
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 may also jeopardize the continued existence of the species.
    Activities that may destroy or adversely modify critical habitat 
are those that alter the PCEs to an extent that the conservation value 
of critical habitat for the species is appreciably reduced. Activities 
that, when carried out, funded, or authorized by a Federal agency, may 
affect critical habitat and therefore should result in consultation for 
H. paradoxus include, but are not limited to:
    (1) Projects that physically alter permanently saturated saline or 
alkaline soils (e.g., salt deposits or crusts present) or result in the 
loss and degradation of H. paradoxus habitat. Such activities could 
include, but are not limited to, drying of wetlands from groundwater 
depletion, alteration of wetlands (e.g., wetland fills, draining, 
impoundment wetland filling and development), livestock management not 
compatible with H. paradoxus's physiology, clearing, introducing or 
encouraging the spread of nonnative plants, and recreational use (such 
as the use of off-road vehicles);
    (2) Removing, thinning, or destroying H. paradoxus plants. This may 
occur through plowing, grading, wetland filling and development, road 
building, burning, mechanical weed control, herbicide application, and 
activities associated with firefighting (e.g., staging areas, surface 
disturbance); and
    (3) Activities that appreciably diminish habitat value or quality 
through indirect effects (e.g., encroachment of nonnative plants or 
animals, or fragmentation).
    We consider all of the units proposed as critical habitat, as well 
as those that have been proposed for exclusion or not included due to 
special management, to contain features essential to the conservation 
of H. paradoxus. All units

[[Page 14340]]

are within the geographic range of the species, all except two were 
known at the time of listing to be occupied by the species (based on 
observations made within the last 14 seasons (Ulibarri 2006; Kargas 
2007; Sivinski 2007)), and are likely to be used by H. paradoxus. 
Federal agencies already consult with us on activities in areas 
currently occupied by H. paradoxus, or if the species may be affected 
by the action, to ensure that their actions do not jeopardize the 
continued existence of H. paradoxus.
Application of Section 3(5)(A) of the Act
    Section 3(5)(A) of the Act defines critical habitat as the specific 
areas within the geographic area occupied by the species on which are 
found those physical and biological features (i) essential to the 
conservation of the species, and (ii) which may require special 
management considerations or protection. Therefore, areas known at the 
time of listing to be occupied by the species that do not contain the 
features essential to the conservation of the species are not, by 
definition, critical habitat. Similarly, areas known at the time of 
listing to be occupied by the species that require no special 
management or protection also are not, by definition, critical habitat.
    There are multiple ways to provide management for species habitat. 
Statutory and regulatory frameworks that exist at a local level can 
provide such protection and management, as can lack of pressure for 
change, such as areas too remote for anthropogenic disturbance. 
Finally, State, local, or private management plans, as well as 
management under Federal agencies' jurisdictions, can provide 
protection and management to avoid the need for designation of critical 
habitat. When we consider a plan to determine its adequacy in 
protecting habitat, we consider whether the plan, as a whole, will 
provide the same level of protection that designation of critical 
habitat would provide. The plan need not lead to exactly the same 
result as a designation in every individual application, as long as the 
protection it provides is equivalent overall. In making this 
determination, we examine whether the plan provides management, 
protection, or enhancement of the PCEs that is at least equivalent to 
that provided by a critical habitat designation, and whether there is a 
reasonable expectation that the management, protection, or enhancement 
actions will continue into the foreseeable future. Each review is 
particular to the species and the plan, and some plans may be adequate 
for some species and inadequate for others.
    Within the areas known to be occupied by H. paradoxus at the time 
of listing and containing sufficient PCEs to support H. paradoxus's 
life processes, we have identified the Bitter Lake National Wildlife 
Refuge (portion of subunit 4a) and the associated Refuge Farm (subunit 
4b) as areas that do not require special management or protections. Our 
preliminary analysis of section 3(5)(a) of the Act and special 
management on these Refuge lands follows.
    Bitter Lake National Wildlife Refuge: Lands within the Service's 
Bitter Lake National Wildlife Refuge and the Refuge Farm are considered 
to be occupied and contain the necessary features that are essential 
for the conservation of H. paradoxus. Below, we provide general 
background information on the Refuge and CCP, followed by an analysis 
pursuant to section 3(5)(a) of the Act of the current management 
provisions on the Refuge.
    The Bitter Lake National Wildlife Refuge was established on October 
8, 1937, by Executive Order 7724 ``as a refuge and breeding ground for 
migratory birds and other wildlife.'' The Refuge Recreation Act (16 
U.S.C. 460k et seq.) identifies the refuge as being suitable for 
incidental fish and wildlife-oriented recreational development, the 
protection of natural resources, and the conservation of endangered 
species or threatened species. The Wilderness Act of 1964 (16 U.S.C. 
1131*1136) directs the Service to ``maintain wilderness as a naturally 
functioning ecosystem'' on portions of the Refuge. While the Refuge was 
originally established to save wetlands vital to the perpetuation of 
migratory birds, the isolated gypsum springs, seeps, and associated 
wetlands protected by the Refuge have been recognized as providing the 
last known habitats in the world for several unique species. Management 
emphasis of the Refuge is placed on the protection and enhancement of 
habitat for endangered species and Federal candidate species, 
maintenance and improvement of wintering crane and waterfowl habitat, 
and monitoring and maintenance of natural ecosystem values.
    The Refuge sits at a juncture between the Roswell Artesian 
Groundwater Basin and the Pecos River. These two systems and their 
interactions account for the diversity of water resources on the 
Refuge, including sinkholes, springs, wetlands, oxbow lakes, and 
riverine habitats. The federally reserved water right for Bitter Lake 
National Wildlife Refuge has been signed by the State of New Mexico, 
but awaits final approval by the Federal government, a procedural 
process. The Refuge is currently in negotiations with the New Mexico 
Office of the State Engineer, a State agency responsible for 
administering New Mexico's water resources, to quantify these reserved 
rights. This water right allows for an in-stream flow in Bitter Creek 
and allows the Refuge to manage impounded springs for the benefit of 
many species, including H. paradoxus. This water right protects against 
the threat of a future water user purchasing a Pecos River Basin water 
right and moving the use to a location that would be detrimental to the 
Refuge's ability to manage for the conservation of H. paradoxus. While 
the water right does not specifically protect water for the purposes of 
H. paradoxus conservation, it combines with management under the 
Refuge's CCP (discussed below) to remove the threat of water withdrawal 
on Refuge lands.
    The National Wildlife Refuge System Improvement Act of 1997 (Pub. 
L. 105-57) (Refuge Improvement Act) establishes a conservation mission 
for refuges, gives policy direction to the Secretary of the Interior 
and refuge managers, and contains other provisions such as the 
requirement to integrate scientific principles into the management of 
the Refuges. According to section 7(e)(1)(E) of the Refuge Improvement 
Act, all lands of the Refuge System are to be managed in accordance 
with an approved CCP that will guide management decisions and set forth 
strategies for achieving refuge purposes. In general, the purpose of 
the CCP is to provide long-range guidance for the management of 
National Wildlife Refuges. The Refuge Improvement Act requires all 
refuges to have a CCP and provides the following legislative mandates 
to guide the development of the CCP: (1) Wildlife has first priority in 
the management of refuges; (2) wildlife-dependent recreation, including 
hunting, fishing, wildlife observation, wildlife photography, 
environmental education, and environmental interpretation, are the 
priority public uses of the refuge system, and shall be allowed when 
compatible with the refuge purpose; and (3) other uses have lower 
priority in the refuge system and are only allowed if not in conflict 
with any of the priority uses and determined appropriate and compatible 
with the refuge purpose.
    The CCP must also be revised if the Secretary determines that 
conditions that affect the refuge or planning unit have changed 
significantly. In other words, a CCP must be followed once it is 
approved, and regularly updated in response to environmental changes or 
new scientific information.

[[Page 14341]]

    The Bitter Lake National Wildlife Refuge has a final CCP that was 
approved in September 1998. The CCP serves as a management tool to be 
used by the Refuge staff and its partners in the preservation and 
restoration of the ecosystem's natural resources. The plan is intended 
to guide management decisions for 15 years after the plan is made 
final, and sets forth strategies for achieving Refuge goals and 
objectives within that timeframe. In 2013, the plan will not expire, 
but will undergo review, and any needed revisions will be incorporated 
at that time. Key goals of the CCP related to H. paradoxus include the 
following: (1) To restore, enhance, and protect the natural diversity 
on the Refuge including threatened and endangered species by (a) 
appropriate management of habitat and wildlife resources on refuge 
lands and (b) strengthening existing and establishing new cooperative 
efforts with public and private stakeholders and partners; and (2) To 
restore and maintain selected portions of a hydrological system that 
more closely mimics the natural processes along the reach of the Pecos 
River adjacent to the Refuge by (a) restoration of the river channel, 
as well as restoration of threatened, endangered, and special concern 
species, and (b) control of exotic species and managment of trust 
responsibilities for maintenance of plant and animal communities and to 
satisfy traditional recreational demands (Service 1998, pp. 5, 46-52). 
Specific objectives related to these goals include: (1) The restoration 
of populations of aquatic species designated as endangered, threatened, 
or of special concern to a sustainable level (H. paradoxus is 
specifically mentioned in this goal); and (2) following existing 
recovery plan objectives to monitor and study threatened or endangered 
species, their habitat requirements, exotic species encroachment, and 
human-induced impacts to prevent further decline and loss (Service 
1998, pp. 49-52).
    In summary, we believe that the Refuge lands are being adequately 
protected and managed for the conservation of H. paradoxus and that 
special management consideration or protections are not required. 
Therefore, we have determined that the Refuge lands do not meet the 
definition of critical habitat under section 3(5)(a) of the Act, and we 
are not proposing to designate critical habitat for H. paradoxus within 
Bitter Lake National Wildlife Refuge or the Refuge farm.

Application of Section 4(b)(2) of the Act

    Section 4(b)(2) of the Act states that critical habitat shall be 
designated, and revised, on the basis of the best available scientific 
data after taking into consideration the economic impact, national 
security impact, and any other relevant impact, of specifying any 
particular area as critical habitat. The Secretary may exclude an area 
from critical habitat if he determines that the benefits of such 
exclusion outweigh the benefits of specifying such area as part of the 
critical habitat, unless he determines, based on the best scientific 
data available, that the failure to designate such area as critical 
habitat will result in the extinction of the species. In making that 
determination, the Congressional record is clear that the Secretary is 
afforded broad discretion regarding which factor(s) to use and how much 
weight to give to any factor.
    Under section 4(b)(2), in considering whether to exclude a 
particular area from the designation, we must identify the benefits of 
including the area in the designation, identify the benefits of 
excluding the area from the designation, and determine whether the 
benefits of exclusion outweigh the benefits of inclusion. If an 
exclusion is contemplated, then we must determine whether excluding the 
area would result in the extinction of the species. In the following 
sections, we address a number of general issues that are relevant to 
the exclusions we are considering. In addition, the Service is 
conducting an economic analysis of the impacts of the proposed critical 
habitat designation and related factors, which will be available for 
public review and comment. Based on public comment on that document, 
the proposed designation itself, and the information in the final 
economic analysis, additional areas beyond those identified in this 
assessment may be excluded from final critical habitat by the Secretary 
under the provisions of section 4(b)(2) of the Act. This is provided 
for in the Act and in our implementing regulations at 50 CFR 424.19.

Benefits of Designating Critical Habitat

Educational Benefits
    A benefit of including lands in critical habitat is that the 
designation of critical habitat serves to educate landowners, State and 
local governments, and the public regarding the potential conservation 
value of an area. This helps focus and promote conservation efforts by 
other parties by clearly delineating areas of high conservation value 
for H. paradoxus. In general, the educational benefit of a critical 
habitat designation always exists, although in some cases it may be 
redundant with other educational effects. For example, Habitat 
Conservation Plans (HCPs) have significant public input and may largely 
duplicate the educational benefit of a critical habitat designation. 
This benefit is closely related to a second, more indirect benefit: 
that the designation of critical habitat would inform State agencies 
and local governments about areas that could be conserved under State 
laws or local ordinances.

Conservation Partnerships on Non-Federal Lands

    Most federally listed species in the United States will not recover 
without the cooperation of non-Federal landowners. More than 60 percent 
of the United States is privately owned (National Wilderness Institute 
1995), and at least 80 percent of endangered or threatened species 
occur either partially or solely on private lands (Crouse et al. 2002). 
Stein et al. (1995) found that only about 12 percent of listed species 
were found almost exclusively on Federal lands (90 to 100 percent of 
their known occurrences restricted to Federal lands) and that 50 
percent of federally listed species are not known to occur on Federal 
lands at all.
    Given the distribution of listed species with respect to land 
ownership, conservation of listed species in many parts of the United 
States is dependent upon working partnerships with a wide variety of 
entities and the voluntary cooperation of many non-Federal landowners 
(Wilcove and Chen 1998; Crouse et al. 2002; James 2002). Building 
partnerships and promoting voluntary cooperation of landowners is 
essential to understanding the status of species on non-Federal lands 
and is necessary to implement recovery actions such as reintroducing 
listed species, habitat restoration, and habitat protection.
    Many non-Federal landowners derive satisfaction in contributing to 
endangered species' recovery. The Service promotes these private-sector 
efforts through the Department of the Interior's Cooperative 
Conservation philosophy. This philosophy is evident in Service programs 
such as HCPs, Safe Harbor Agreements, Candidate Conservation 
Agreements, Candidate Conservation Agreements with Assurances, and 
conservation challenge cost-share. Many private landowners, however, 
are wary of the possible consequences of encouraging endangered species 
to their property, and there is mounting evidence that some regulatory 
actions by the Federal government, while well-intentioned and required 
by law, can (under certain

[[Page 14342]]

circumstances) have unintended negative consequences for the 
conservation of species on private lands (Wilcove et al. 1996; Bean 
2002; Conner and Mathews 2002; James 2002; Koch 2002; Brook et al. 
2003). Many landowners fear a decline in their property value due to 
real or perceived restrictions on land-use options where threatened or 
endangered species are found. Consequently, harboring endangered 
species is viewed by many landowners as a liability, resulting in anti-
conservation incentives because maintaining habitats that harbor 
endangered species represents a risk to future economic opportunities 
(Main et al. 1999; Brook et al. 2003).
    The Department of the Interior's Cooperative Conservation 
philosophy is the foundation for developing the tools of conservation. 
These tools include conservation grants, funding for Partners for Fish 
and Wildlife Program, the Coastal Program, and cooperative-conservation 
challenge cost-share grants. Our Private Stewardship Grant program and 
Landowner Incentive Program provide assistance to private landowners in 
their voluntary efforts to protect threatened, imperiled, and 
endangered species, including the development and implementation of 
Habitat Conservation Plans (HCPs). Conservation agreements with non-
Federal landowners (HCPs, contractual conservation agreements, 
easements, and stakeholder-negotiated State regulations) enhance 
species conservation by extending species protections beyond those 
available through section 7 consultations. In the past decade, we have 
encouraged non-Federal landowners to enter into conservation 
agreements, based on a view that we can achieve greater species 
conservation on non-Federal land through such partnerships than we can 
through coercive methods. We invite discussion with all landowners 
within the proposed critical habitat that have an interest in 
developing conservation strategies that we would evaluate to determine 
if they provide a greater benefit to H. paradoxus than could be 
achieved through the final designation of critical habitat.
    The purpose of designating critical habitat is to contribute to the 
conservation of threatened and endangered species and the ecosystems 
upon which they depend. The outcome of the designation, triggering 
regulatory requirements for actions funded, authorized, or carried out 
by Federal agencies under section 7 of the Act, can sometimes be 
counterproductive to its intended purpose on non-Federal lands. 
According to some researchers, the designation of critical habitat on 
private lands significantly reduces the likelihood that landowners will 
support and carry out conservation actions (Main et al. 1999; Bean 
2002; Brook et al. 2003). The magnitude of this negative outcome is 
greatly amplified in situations where active management measures (such 
as reintroduction, fire management, control of invasive species) are 
necessary for species conservation (Bean 2002). The Service believes 
that the judicious use of excluding specific areas of non-federally 
owned lands from critical habitat designations can contribute to 
species recovery and provide a superior level of conservation than 
critical habitat alone.

General Principles of Section 7 Consultations Used in the 4(b)(2) 
Balancing Process

    The most direct, and potentially largest, regulatory benefit of 
critical habitat is that federally authorized, funded, or carried out 
activities require consultation under section 7 of the Act to ensure 
that they are not likely to destroy or adversely modify critical 
habitat. There are two limitations to this regulatory effect. First, it 
only applies where there is a Federal nexus--if there is no Federal 
nexus, designation itself does not restrict actions that destroy or 
adversely modify critical habitat. Second, it only limits destruction 
or adverse modification. By its nature, the prohibition on adverse 
modification is designed to ensure those areas that contain the 
physical and biological features essential to the conservation of the 
species or unoccupied areas that are essential to the conservation of 
the species are not eroded. Critical habitat designation alone, 
however, does not require specific steps toward recovery.
    Once consultation under section 7 of the Act is triggered, the 
process may conclude informally when the Service concurs in writing 
that the proposed Federal action is not likely to adversely affect the 
listed species or its critical habitat. However, if the Service 
determines through informal consultation that adverse impacts are 
likely to occur, then formal consultation would be initiated. Formal 
consultation concludes with a biological opinion issued by the Service 
on whether the proposed Federal action is likely to jeopardize the 
continued existence of a listed species or result in destruction or 
adverse modification of critical habitat, with separate analyses being 
made under both the jeopardy and the adverse modification standards. 
For critical habitat, a biological opinion that concludes in a 
determination of no destruction or adverse modification may contain 
discretionary conservation recommendations to minimize adverse effects 
to primary constituent elements, but it would not contain any mandatory 
reasonable and prudent measures or terms and conditions. Mandatory 
measures and terms and conditions to implement such measures are only 
specified when the proposed action would result in the incidental take 
of a listed animal. Reasonable and prudent alternatives to the proposed 
Federal action would only be suggested when the biological opinion 
results in a jeopardy or adverse modification conclusion.
    We also note that for 30 years prior to the Ninth Circuit Court's 
decision in Gifford Pinchot, the Service combined the jeopardy standard 
with the standard for destruction or adverse modification of critical 
habitat when evaluating Federal actions that affect currently-occupied 
critical habitat. The Court ruled that the two standards are distinct 
and that adverse modification evaluations require consideration of 
impacts on the recovery of species. Thus, under the Gifford Pinchot 
decision, critical habitat designations may provide greater benefits to 
the recovery of a species. However, we believe the conservation 
achieved through implementing habitat conservation plans (HCPs) or 
other habitat management plans is typically greater than would be 
achieved through multiple site-by-site, project-by-project, section 7 
consultations involving consideration of critical habitat. Management 
plans commit resources to implement long-term management and protection 
to particular habitat for at least one and possibly other listed or 
sensitive species. Section 7 consultations only commit Federal agencies 
to prevent adverse modification to critical habitat caused by the 
particular project, and agencies do not have to commit to provide 
conservation or long-term benefits to areas not affected by the 
proposed project. Thus, any HCP or management plan that considers 
enhancement or recovery as the management standard will often provide 
as much or more benefit than a consultation for critical habitat 
designation conducted under the standards required by the Ninth Circuit 
in the Gifford Pinchot decision.
    The information provided in this section applies to all the 
discussions below that discuss the benefits of inclusion and exclusion 
of critical habitat in that it provides the framework for the 
consultation process.

[[Page 14343]]

Benefits of Excluding Lands With Approved Management Plans From 
Critical Habitat

    The benefits of excluding lands with approved management plans from 
critical habitat designation include relieving landowners, communities, 
and counties of any additional regulatory burden that might be imposed 
by a critical habitat designation. Most conservation plans take many 
years to develop and, upon completion, are consistent with the recovery 
objectives for listed species that are covered within the plan area. 
Many conservation plans also provide conservation benefits to unlisted 
sensitive species. Imposing an additional regulatory review as a result 
of the designation of critical habitat may undermine these conservation 
efforts and partnerships designed to proactively protect species to 
ensure that listing under the Act will not be necessary. Designation of 
critical habitat within the boundaries of management plans that provide 
conservation measures for a species could be viewed as a disincentive 
to those entities currently developing these plans or contemplating 
them in the future, because one of the incentives for undertaking 
conservation is greater ease of permitting where listed species are 
affected. Addition of a new regulatory requirement would remove a 
significant incentive for undertaking the time and expense of 
management planning. In fact, designating critical habitat in areas 
covered by a pending conservation plan could result in the loss of some 
species' benefits if participants abandon the planning process, in part 
because of the strength of the perceived additional regulatory 
compliance that such designation would entail. The time and cost of 
regulatory compliance for a critical habitat designation do not have to 
be quantified for them to be perceived as additional Federal regulatory 
burden sufficient to discourage continued participation in plans 
targeting listed species' conservation.
    A related benefit of excluding lands within management plans from 
critical habitat designation is the unhindered, continued ability to 
seek new partnerships with future plan participants including States, 
counties, local jurisdictions, conservation organizations, and private 
landowners, which together can implement conservation actions that we 
would be unable to accomplish otherwise. If lands within approved 
management plan areas are designated as critical habitat, it would 
likely have a negative effect on our ability to establish new 
partnerships to develop these plans, particularly plans that address 
landscape-level conservation of species and habitats. By preemptively 
excluding these lands, we preserve our current partnerships and 
encourage additional conservation actions in the future.

Relationship of Critical Habitat to Tribal Lands

    In accordance with the Secretarial Order 3206, ``American Indian 
Tribal Rights, Federal-Tribal Trust Responsibilities, and the 
Endangered Species Act'' (June 5, 1997); the President's memorandum of 
April 29, 1994, ``Government-to-Government Relations with Native 
American Tribal Governments'' (59 FR 22951); Executive Order 13175; and 
the relevant provision of the Departmental Manual of the Department of 
the Interior (512 DM 2), we believe that fish, wildlife, and other 
natural resources on tribal lands are better managed under tribal 
authorities, policies, and programs than through Federal regulation 
wherever possible and practicable. Based on this philosophy, we believe 
that, in many cases, designation of tribal lands as critical habitat 
provides very little additional benefit to threatened and endangered 
species. Conversely, such designation is often viewed by tribes as an 
unwanted intrusion into tribal self governance, thus compromising the 
government-to-government relationship essential to achieving our mutual 
goals of managing for healthy ecosystems upon which the viability of 
threatened and endangered species populations depend.
    In our critical habitat designations, we use the provision outlined 
in section 4(b)(2) of the Act to evaluate those specific areas that 
contain the features essential to the conservation of the species to 
determine which areas to propose and subsequently finalize (i.e., 
designate) as critical habitat. On the basis of our preliminary 
evaluation, discussed in detail below, we are proposing to exclude 
certain lands from the final designation of critical habitat for H. 
paradoxus. In the development of our final designation, we will 
incorporate or address any new information received during the public 
comment periods, and from our evaluation of the potential economic and 
or other relevant impacts of this proposal. As such, we may revise this 
proposal to address new information and/or exclude additional areas 
that may warrant exclusion pursuant to section 4(b)(2) of the Act.
Pueblo of Acoma
    The Pueblo of Acoma has lands containing features essential to the 
conservation of H. paradoxus. In making our decision on the final 
critical habitat designation with regard to these lands, we will be 
considering several factors, including our relationship with the Pueblo 
and whether a management plan has been developed for the conservation 
of H. paradoxus on their lands. Currently, we are not aware of a 
management plan for H. paradoxus. As noted above, if the Pueblo 
requests, we will provide technical assistance on management of the 
species and the development of a management plan. We also note that 
lands of the Pueblo of Acoma could be considered for exclusion in the 
final determination or designation under section 4(b)(2) of the Act and 
that any exclusions made in the final determination or designation will 
be the result of an analysis of any new information received.
Pueblo of Laguna
    The Pueblo of Laguna has lands containing features essential to the 
conservation of H. paradoxus. In making our final decision with regard 
to Pueblo lands, we will consider several factors, including our 
relationship with the Pueblo and whether a management plan has been 
developed for the conservation of H. paradoxus on their lands. On 
August 2, 2004, in a letter to the New Mexico Ecological Services Field 
Office from Pueblo of Laguna Governor Johnson, we learned that the 
Pueblo has developed a draft management plan for H. paradoxus and has 
been managing Pueblo land consistent with the protection and recovery 
of the sunflower. We received the Pecos Sunflower (Helianthus 
paradoxus) Draft Management Plan, Pueblo of Laguna, 2007, for review on 
February 8, 2007, and we are working with the Pueblo on finalizing the 
management plan for their lands. On the basis of our partnership with 
the Pueblo, and in anticipation of completion of a management plan, the 
populations of H. paradoxus associated with spring habitats along the 
Rio San Jose belonging to the Pueblo of Laguna may be excluded from 
final critical habitat designation pursuant to section 4(b)(2) of the 
Act (see ``Relationship of Critical Habitat to Tribal Lands'' section 
below for additional information).

Economic Analysis

    An analysis of the economic impacts of proposing critical habitat 
for H. paradoxus is being prepared. We will announce the availability 
of the draft economic analysis as soon as it is completed, at which 
time we will seek public review and comment. At that time, copies of 
the draft economic

[[Page 14344]]

analysis will be available for downloading from the Internet at http://www.fws.gov/southwest/es/newmexico/ or by contacting the New Mexico 
Ecological Services Field Office directly (see ADDRESSES).

Peer Review

    In accordance with our joint policy published in the Federal 
Register on July 1, 1994 (59 FR 34270), we will seek the expert 
opinions of at least three appropriate and independent specialists 
regarding this proposed rule. The purpose of such review is to ensure 
that our critical habitat designation is based on scientifically sound 
data, assumptions, and analyses. We will send copies of this proposed 
rule to these peer reviewers immediately following publication in the 
Federal Register. We will invite these peer reviewers to comment during 
the public comment period on the specific assumptions and conclusions 
regarding the proposed designation of critical habitat.
    We will consider all comments and information received during the 
comment period on this proposed rule during preparation of a final 
determination. Accordingly, the final decision may differ from this 
proposal.

Public Hearings

    The Act provides for one or more public hearings on this proposal, 
if requested. Requests for public hearings must be made in writing at 
least 15 days prior to the close of the public comment period (see 
DATES). We will schedule public hearings on this proposal, if any are 
requested, and announce the dates, times, and places of those hearings 
in the Federal Register and local newspapers at least 15 days prior to 
the first hearing.
Clarity of the Rule
    Executive Order 12866 (Regulatory Planning and Review) requires 
each agency to write regulations and notices that are easy to 
understand. We invite your comments on how to make this proposed rule 
easier to understand, including answers to questions such as the 
following: (1) Are the requirements in the proposed rule clearly 
stated? (2) Does the proposed rule contain technical jargon that 
interferes with the clarity? (3) Does the format of the proposed rule 
(grouping and order of the sections, use of headings, paragraphing, and 
so forth) aid or reduce its clarity? (4) Is the description of the 
notice in the SUPPLEMENTARY INFORMATION section of the preamble helpful 
in understanding the proposed rule? (5) What else could we do to make 
this proposed rule easier to understand?
    Send a copy of any comments on how we could make this proposed rule 
easier to understand to: Office of Regulatory Affairs, Department of 
the Interior, Room 7229, 1849 C Street, NW., Washington, DC 20240. You 
may e-mail your comments to this address: <a href="/cdn-cgi/l/email-protection#8dc8f5fee8eecde4e2fea3e9e2e4a3eae2fb"><span class="__cf_email__" data-cfemail="c782bfb4a2a487aea8b4e9a3a8aee9a0a8b1">[email protected]</span></a>.

Required Determinations

Regulatory Planning and Review

    In accordance with Executive Order 12866, this document is a 
significant rule in that it may raise novel legal and policy issues, 
but it is not anticipated to have an annual effect on the economy of 
$100 million or more or affect the economy in a material way. Due to 
the tight timeline for publication in the Federal Register, the Office 
of Management and Budget (OMB) has not formally reviewed this rule. We 
are preparing a draft economic analysis of this proposed action, which 
will be available for public comment, to determine the economic 
consequences of designating the specific area as critical habitat. This 
economic analysis also will be used to determine compliance with 
Executive Order 12866, Regulatory Flexibility Act, Small Business 
Regulatory Enforcement Fairness Act, Executive Order 12630, Executive 
Order 13211, and Executive Order 12875.
    Further, Executive Order 12866 directs Federal agencies 
promulgating regulations to evaluate regulatory alternatives (OMB, 
Circular A-4, September 17, 2003). Pursuant to Circular A-4, once it 
has been determined that the Federal regulatory action is appropriate, 
then the agency will need to consider alternative regulatory 
approaches. Since the determination of critical habitat is a statutory 
requirement under the Act (16 U.S.C. 1531 et seq.), we must then 
evaluate alternative regulatory approaches, where feasible, when 
promulgating a designation of critical habitat.
    In developing our designations of critical habitat, we consider 
economic impacts, impacts to national security, and other relevant 
impacts pursuant to section 4(b)(2) of the Act. Based on the discretion 
allowable under this provision, we may exclude any particular area from 
the designation of critical habitat providing that the benefits of such 
exclusion outweigh the benefits of specifying the area as critical 
habitat and that such exclusion would not result in the extinction of 
the species. As such, we believe that the evaluation of the inclusion 
or exclusion of particular areas, or combination thereof, in a 
designation constitutes our regulatory alternative analysis.
    When it is completed, the draft economic analysis will be made 
available through an announcement in the Federal Register and in local 
newspapers. At that time, we will seek public review and comment on the 
draft economic analysis. The draft economic analysis will also be 
available on our Web site at http://www.fws.gov/southwest/es/newmexico/ 
or by contacting the New Mexico Ecological Services Field Office 
directly (see ADDRESSES).

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

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996), whenever an agency is required to publish a notice 
of rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the effects of the rule on small entities (small businesses, 
small organizations, and small government jurisdictions). However, no 
regulatory flexibility analysis is required if the head of the agency 
certifies the rule will not have a significant economic impact on a 
substantial number of small entities. The SBREFA amended the Regulatory 
Flexibility Act (RFA) to require Federal agencies to provide a 
statement of the factual basis for certifying that the rule will not 
have a significant economic impact on a substantial number of small 
entities.
    At this time, the Service lacks the available economic information 
necessary to provide an adequate factual basis for the required RFA 
finding. Therefore, the RFA finding is deferred until completion of the 
draft economic analysis prepared under section 4(b)(2) of the Act and 
E.O. 12866. This draft economic analysis will provide the required 
factual basis for the RFA finding. Upon completion of the draft 
economic analysis, the Service will publish a notice of availability of 
the draft economic analysis of the proposed designation and reopen the 
public comment period for the proposed designations. The Service will 
include with the notice of availability, as appropriate, an initial 
regulatory flexibility analysis or a certification that the rule will 
not have a significant economic impact on a substantial number of small 
entities accompanied by the factual basis for that determination. The 
Service has

[[Page 14345]]

concluded that deferring the RFA finding until completion of the draft 
economic analysis is necessary to meet the purposes and requirements of 
the RFA. Deferring the RFA finding in this manner will ensure that the 
Service makes a sufficiently informed determination based on adequate 
economic information and provides the necessary opportunity for public 
comment.

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

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 
1501), the Service makes the following findings:
    (a) This rule will not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute, or regulation 
that would impose an enforceable duty upon State, local, or Tribal 
governments, or the private sector and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or tribal governments'' with two 
exceptions. It excludes ``a condition of Federal assistance.'' It also 
excludes ``a duty arising from participation in a voluntary Federal 
program,'' unless the regulation ``relates to a then-existing Federal 
program under which $500,000,000 or more is provided annually to State, 
local, and tribal governments under entitlement authority,'' if the 
provision would ``increase the stringency of conditions of assistance'' 
or ``place caps upon, or otherwise decrease, the Federal Government's 
responsibility to provide funding,'' and the State, local, or Tribal 
governments ``lack authority'' to adjust accordingly. At the time of 
enactment, these entitlement programs were: Medicaid; AFDC work 
programs; Child Nutrition; Food Stamps; Social Services Block Grants; 
Vocational Rehabilitation State Grants; Foster Care, Adoption 
Assistance, and Independent Living; Family Support Welfare Services; 
and Child Support Enforcement. ``Federal private sector mandate'' 
includes a regulation that ``would impose an enforceable duty upon the 
private sector, except (i) a condition of Federal assistance or (ii) a 
duty arising from participation in a voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. While non-Federal entities that receive 
Federal funding, assistance, or permits, or that otherwise require 
approval or authorization from a Federal agency for an action may be 
indirectly impacted by the designation of critical habitat, the legally 
binding duty to avoid destruction or adverse modification of critical 
habitat rests squarely on the Federal agency. Furthermore, to the 
extent that non-Federal entities are indirectly impacted because they 
receive Federal assistance or participate in a voluntary Federal aid 
program, the Unfunded Mandates Reform Act would not apply, nor would 
critical habitat shift the costs of the large entitlement programs 
listed above on to State governments.
    (b) We recognize that some areas within the proposed critical 
habitat designation are within the City of Santa Rosa. As we conduct 
our draft economic analysis, we will complete a comprehensive 
assessment of the effect of designating critical habitat on these small 
governmental jurisdictions.

Executive Order 13211

    On May 18, 2001, the President issued an Executive Order (E.O. 
13211; Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use) on regulations that significantly affect 
energy supply, distribution, and use. Executive Order 13211 requires 
agencies to prepare Statements of Energy Effects when undertaking 
certain actions. Although this proposed rule to designate critical 
habitat for H. paradoxus is a significant regulatory action under 
Executive Order 12866 in that it may raise novel legal and policy 
issues, it is not expected to significantly affect energy supplies, 
distribution, or use. Therefore, this action is not a significant 
energy action, and no Statement of Energy Effects is required. However, 
we will further evaluate this issue as we conduct our economic analysis 
and review and revise this assessment as warranted.

Takings

    In accordance with Executive Order 12630 (``Government Actions and 
Interference with Constitutionally Protected Private Property 
Rights''), we have analyzed the potential takings implications of 
designating critical habitat for H. paradoxus in a takings implications 
assessment. The takings implications assessment concludes that this 
designation of critical habitat for H. paradoxus does not pose 
significant takings implications. However, we will further evaluate 
this issue as we conduct our economic analysis and review and revise 
this assessment as warranted.

Federalism

    In accordance with Executive Order 13132 (Federalism), the rule 
does not have significant Federalism effects. A Federalism assessment 
is not required. In keeping with Department of the Interior and 
Department of Commerce policy, we requested information from, and 
coordinated development of, this proposed critical habitat designation 
with appropriate State resource agencies in New Mexico and Texas. The 
designation of critical habitat in areas currently occupied by H. 
paradoxus imposes no additional restrictions to those currently in 
place and, therefore, has little incremental impact on State and local 
governments and their activities. The designation may have some benefit 
to these governments in that the areas that contain the features 
essential to the conservation of the species are more clearly defined, 
and the primary constituent elements of the habitat necessary to the 
conservation of the species are specifically identified. While making 
this definition and identification does not alter where and what 
federally sponsored activities may occur, it may assist these local 
governments in long-range planning (rather than waiting for case-by-
case section 7 consultations to occur).

Civil Justice Reform

    In accordance with Executive Order 12988 (Civil Justice Reform), 
the Office of the Solicitor has determined that the rule does not 
unduly burden the judicial system and meets the requirements of 
sections 3(a) and 3(b)(2) of the Order. We propose designating critical 
habitat in accordance with the provisions of the Endangered Species 
Act. This proposed rule uses standard property descriptions and 
identifies the primary constituent elements within the designated areas 
to assist the public in understanding the habitat needs of H. 
paradoxus.

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

    This rule does not contain any new collections of information that 
require approval by OMB under the Paperwork Reduction Act. This rule 
will not impose recordkeeping or reporting requirements on State or 
local governments, individuals, businesses, or organizations. An agency 
may not conduct or sponsor, and a person is not required to respond to, 
a collection of information unless it displays a currently valid OMB 
control number.

[[Page 14346]]

National Environmental Policy Act (NEPA) (42 U.S.C. 4321 et. seq.)

    It is our position that, outside the Jurisdiction of the Tenth 
Federal Circuit, we do not need to prepare environmental analyses as 
defined by NEPA in connection with designating critical habitat under 
the Endangered Species Act of 1973, as amended. We published a notice 
outlining our reasons for this determination in the Federal Register on 
October 25, 1983 (48 FR 49244). This assertion was upheld by the Ninth 
Circuit (Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. Ore. 1995), 
cert. denied 516 U.S. 1042 (1996)). However, when the range of the 
species includes States within the Tenth Circuit, such as that of H. 
paradoxus, under the Tenth Circuit ruling in Catron County Board of 
Commissioners v. U.S. Fish and Wildlife Service, 75 F.3d 1429 (10th 
Cir. 1996), we will undertake a NEPA analysis for critical habitat 
designation and notify the public of the availability of the draft 
environmental assessment for this proposal when it is completed.

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), Executive Order 13175, and the Department 
of Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. In accordance with 
Secretarial Order 3206 of June 5, 1997, ``American Indian Tribal 
Rights, Federal--Tribal Trust Responsibilities, and the Endangered 
Species Act,'' we readily acknowledge our responsibilities to work 
directly with tribes in developing programs for healthy ecosystems, to 
acknowledge that tribal lands are not subject to the same controls as 
Federal public lands, to remain sensitive to Indian culture, and to 
make information available to tribes. If requested by the Pueblo of 
Acoma, we will provide technical assistance on management of the 
species and the development of a management plan. We will also continue 
to work with the Pueblo of Laguna on the development of a final 
management plan for their lands. We note that lands of the Pueblos of 
Acoma and Laguna may be considered for exclusion in the final 
designation or determination pursuant to section 4(b)(2) of the Act and 
that any exclusions made in the final designation or determination will 
be the result of an analysis of any new information received.

References Cited

    A complete list of all references cited in this rulemaking is 
available upon request from the Field Supervisor, New Mexico Ecological 
Services Field Office (see ADDRESSES).

Author(s)

    The primary authors of this package are staff of the New Mexico 
Ecological Services Field Office.

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

Proposed Regulation Promulgation

    Accordingly, we propose to amend part 17, subchapter B of chapter 
I, title 50 of the Code of Federal Regulations, 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 ``Helianthus paradoxus'' 
under ``FLOWERING PLANTS'' in the List of Threatened and Endangered 
Plants to read as follows:


Sec.  17.12  Endangered and threatened plants.

* * * * *
    (h) * * *

------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                        Species
--------------------------------------------------------         Historic range                   Family                 Status          When      Critical     Special rules
         Scientific name                Common name                                                                                     listed      habitat
-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
FLOWERING PLANTS
 
                                                                                          * * * * * * *
Helianthus paradoxus.............  Pecos (=puzzle,       U.S.A. (NM, TX)..............  Asteraceae...............  T................         667    17.96(a)  NA
                                    =paradox) sunflower.
 
                                                                                          * * * * * * *
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

    3. In Sec.  17.96(a), add an entry for ``Helianthus paradoxus 
(Pecos sunflower)'' in alphabetical order under Family Asteraceae to 
read as follows:


Sec.  17.96  Critical habitat--plants.

    (a) Flowering plants.
* * * * *
    Family Asteraceae: Helianthus paradoxus (Pecos sunflower)
    (1) Critical habitat units are depicted for Chaves, Cibola, 
Guadalupe, Socorro, and Valencia Counties, New Mexico, and for Pecos 
County, Texas, on the maps below.
    (2) Within critical habitat units, the primary constituent elements 
of critical habitat for the Helianthus paradoxus are the desert wetland 
or riparian habitat components that provide:
    (i) 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 (19.7 in) of the soil profile), and have salinity 
levels ranging from 10 to 40 parts per thousand; and
    (ii) A low proportion (less than 10 percent) of woody shrub or 
canopy cover directly around the plant.
    (3) Critical habitat does not include manmade structures, such as 
buildings, aqueducts, airports, and roads, and the land on which such 
structures are located, existing on the effective date of this rule and 
not containing one or more of the primary constituent elements.
    (4) Critical habitat map units. Data layers defining map units were 
created on a base of USGS 1:24,0000 maps, and critical habitat units 
were then mapped using Universal Transverse Mercator (UTM) coordinates.
    (5) Note: Index map of Pecos sunflower critical habitat units (map 
1) follows:
BILLING CODE 4310-55-P

[[Page 14347]]

[GRAPHIC] [TIFF OMITTED] TP27MR07.000

BILLING CODE 4310-55-C

[[Page 14348]]

    (6) Unit 1: West-Central New Mexico, Cibola and Valencia Counties, 
New Mexico.
    (i) Subunit 1a for Helianthus paradoxus, Rancho del Padre Spring 
Cienega, Cibola County, New Mexico. From USGS 1:24,000 quadrangle 
Grants SE, lands bounded by the following UTM NAD83 coordinates (meters 
E, meters N): 243145, 3889604; 243025, 3889705; 243053, 3889708; 
243097, 3889700; 243141, 3889702; 243201, 3889703; 243246, 3889703; 
243286, 3889703; 243342, 3889708; 243377, 3889712; 243402, 3889704; 
243441, 3889707; 243441, 3889707; 243472, 3889710; 243490, 3889709; 
243518, 3889707; 243577, 3889698; 243626, 3889686; 243657, 3889669; 
243683, 3889642; 243706, 3889616; 243729, 3889590; 243765, 3889564; 
243794, 3889545; 243826, 3889535; 243863, 3889518; 243888, 3889519; 
243932, 3889513; 243966, 3889506; 243991, 3889508; 244056, 3889504; 
244120, 3889510; 244157, 3889513; 244196, 3889517; 244242, 3889530; 
244282, 3889546; 244325, 3889560; 244359, 3889575; 244388, 3889592; 
244423, 3889592; 244410, 3889576; 244393, 3889566; 244362, 3889539; 
244322, 3889506; 244278, 3889486; 244244, 3889470; 244209, 3889467; 
244155, 3889466; 244126, 3889461; 244088, 3889450; 244057, 3889453; 
244019, 3889457; 243982, 3889456; 243923, 3889459; 243879, 3889459; 
243824, 3889470; 243779, 3889490; 243752, 3889510; 243726, 3889522; 
243689, 3889537; 243653, 3889566; 243604, 3889594; 243573, 3889612; 
243515, 3889637; 243471, 3889643; 243427, 3889641; 243376, 3889630; 
243325, 3889625; 243265, 3889619; 243224, 3889611; 243169, 3889606; 
thence returning to 243145, 3889604.
    (ii) Subunit 1b for Helianthus paradoxus, Grants Salt Flat 
Wetlands, Cibola County, New Mexico. From USGS 1:24,000 quadrangle 
Grants, lands bounded by the following UTM NAD83 coordinates (meters E, 
meters N): 241567, 3891788; 241548, 3891788; 241521, 3891788; 241509, 
3891801; 241493, 3891806; 241482, 3891812; 241460, 3891822; 241448, 
3891840; 241440, 3891865; 241445, 3891886; 241449, 3891910; 241445, 
3891930; 241456, 3891947; 241463, 3891957; 241484, 3891960; 241499, 
3891965; 241517, 3891962; 241531, 3891941; 241534, 3891918; 241543, 
3891893; 241551, 3891866; 241560, 3891846; 241568, 3891825; 241582, 
3891801; 241602, 3891789; 241636, 3891777; 241670, 3891770; 241691, 
3891774; 241714, 3891774; 241733, 3891785; 241751, 3891795; 241751, 
3891785; 241762, 3891765; 241775, 3891750; 241798, 3891741; 241812, 
3891747; 241825, 3891755; 241850, 3891755; 241876, 3891751; 241901, 
3891738; 241917, 3891731; 241934, 3891717; 241942, 3891694; 241952, 
3891679; 241959, 3891662; 241979, 3891648; 242003, 3891648; 242025, 
3891648; 242045, 3891648; 242071, 3891659; 242100, 3891656; 242122, 
3891641; 242135, 3891629; 242168, 3891604; 242175, 3891585; 242186, 
3891578; 242196, 3891570; 242215, 3891570; 242234, 3891570; 242252, 
3891554; 242288, 3891527; 242295, 3891507; 242295, 3891482; 242288, 
3891465; 242283, 3891452; 242239, 3891452; 242191, 3891452; 242178, 
3891441; 242171, 3891432; 242169, 3891409; 242172, 3891391; 242172, 
3891378; 242171, 3891358; 242169, 3891344; 242165, 3891323; 242155, 
3891303; 242154, 3891285; 242142, 3891252; 242141, 3891232; 242128, 
3891205; 242114, 3891194; 242097, 3891188; 242080, 3891180; 242062, 
3891179; 242052, 3891190; 242040, 3891204; 242023, 3891225; 241999, 
3891240; 241984, 3891255; 241975, 3891262; 241971, 3891278; 241972, 
3891293; 241964, 3891308; 241944, 3891322; 241911, 3891325; 241879, 
3891325; 241836, 3891326; 241811, 3891335; 241785, 3891350; 241768, 
3891359; 241755, 3891360; 241728, 3891356; 241706, 3891357; 241680, 
3891357; 241666, 3891373; 241662, 3891403; 241664, 3891455; 241666, 
3891502; 241666, 3891544; 241657, 3891574; 241650, 3891611; 241612, 
3891644; 241567, 3891688; thence returning to 241567, 3891788.
    (iii) Note: Map of Subunits 1a and 1b for Helianthus paradoxus (Map 
2) follows:
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    (iv) Subunit 1c for Helianthus paradoxus, Pueblo of Laguna, 
Valencia County, New Mexico. From USGS 1:24,000 quadrangles Correo and 
South Garcia, springs along the Rio San Jose south of Interstate 40, 
and the areas immediately surrounding these springs.
    (v) Note: Map of Subunit 1b (West-Central New Mexico--Pueblo of 
Laguna Subunit) of Helianthus paradoxus critical habitat (Map 3) 
follows:
[GRAPHIC] [TIFF OMITTED] TP27MR07.002

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    (7) Unit 2: La Joya, Socorro County, New Mexico.
    (i) Unit 2 for Helianthus paradoxus, La Joya State Wildlife 
Management Area, Socorro County, New Mexico. From USGS 1:24,000 
quadrangle La Joya, lands bounded by the following UTM NAD83 
coordinates (meters E, meters N): 327938, 3803771; 328008, 3803841; 
328017, 3803889; 327974, 3803950; 327921, 3803981; 327906, 3804024; 
327900, 3804069; 327929, 3804128; 327953, 3804169; 328019, 3804191; 
328076, 3804209; 328129, 3804211; 328192, 3804189; 328237, 3804185; 
328306, 3804204; 328353, 3804256; 328416, 3804317; 328493, 3804315; 
328575, 3804293; 328654, 3804268; 328744, 3804240; 328809, 3804227; 
328891, 3804221; 328978, 3804221; 329007, 3804221; 329002, 3804151; 
329007, 3804081; 328943, 3803853; 328884, 3803635; 328854, 3803517; 
328795, 3803310; 328756, 3803178; 328739, 3803098; 328730, 3803069; 
328716, 3803028; 328698, 3802962; 328686, 3802913; 328669, 3802848; 
328662, 3802791; 328654, 3802744; 328651, 3802687; 328649, 3802547; 
328649, 3802336; 328619, 3802307; 328559, 3802294; 328514, 3802292; 
328352, 3802301; 328237, 3802318; 328166, 3802369; 328126, 3802370; 
328104, 3802335; 328123, 3802292; 328137, 3802262; 328123, 3802215; 
328115, 3802167; 328112, 3802126; 328115, 3802093; 328142, 3802036; 
328156, 3802004; 328126, 3801971; 328025, 3801950; 327961, 3801941; 
327897, 3801940; 327881, 3801959; 327845, 3802076; 327843, 3802138; 
327847, 3802172; 327830, 3802196; 327824, 3802226; 327817, 3802269; 
327815, 3802305; 327847, 3802363; 327849, 3802406; 327847, 3802448; 
327864, 3802483; 327875, 3802517; 327871, 3802547; 327854, 3802572; 
327813, 3802589; 327785, 3802607; 327788, 3802637; 327815, 3802687; 
327828, 3802722; 327822, 3802771; 327805, 3802818; 327773, 3802833; 
327740, 3802854; 327738, 3802884; 327751, 3802923; 327762, 3802967; 
327766, 3803012; 327796, 3803064; 327820, 3803117; 327858, 3803158; 
327895, 3803209; 327914, 3803265; 327928, 3803309; 327929, 3803359; 
327958, 3803460; 327978, 3803524; 327995, 3803612; 328003, 3803685; 
327976, 3803721; 327948, 3803730; thence returning to 327938, 3803771.
    327683, 3800456; 327686, 3800538; 327717, 3800591; 327740, 3800627; 
327757, 3800689; 327762, 3800723; 327743, 3800777; 327726, 3800820; 
327722, 3800890; 327715, 3800947; 327735, 3800983; 327791, 3801036; 
327872, 3801083; 327917, 3801107; 327973, 3801164; 328021, 3801220; 
328071, 3801278; 328114, 3801381; 328117, 3801417; 328133, 3801417; 
328183, 3801359; 328186, 3801340; 328201, 3801308; 328230, 3801280; 
328255, 3801276; 328283, 3801262; 328307, 3801232; 328329, 3801131; 
328320, 3801039; 328302, 3800977; 328267, 3800885; 328272, 3800815; 
328285, 3800744; 328311, 3800674; 328351, 3800590; 328403, 3800529; 
328483, 3800459; 328531, 3800401; 328606, 3800340; 328658, 3800252; 
328663, 3800195; 328654, 3800120; 328619, 3800010; 328597, 3799947; 
328579, 3799881; 328553, 3799819; 328504, 3799779; 328465, 3799718; 
328456, 3799643; 328417, 3799555; 328408, 3799459; 328381, 3799358; 
328359, 3799278; 328368, 3799217; 328359, 3799151; 328355, 3799094; 
328430, 3798975; 328474, 3798923; 328509, 3798788; 328527, 3798757; 
328553, 3798727; 328544, 3798661; 328553, 3798625; 328579, 3798590; 
328592, 3798559; 328588, 3798502; 328588, 3798463; 328557, 3798401; 
328544, 3798349; 328579, 3798274; 328645, 3798212; 328649, 3798169; 
328641, 3798120; 328623, 3798063; 328623, 3798001; 328610, 3797918; 
328610, 3797865; 328623, 3797761; 328658, 3797664; 328654, 3797616; 
328582, 3797604; 328520, 3797699; 328497, 3797746; 328491, 3797783; 
328485, 3797841; 328477, 3797877; 328462, 3797893; 328464, 3797913; 
328469, 3797944; 328466, 3797990; 328470, 3798038; 328483, 3798093; 
328496, 3798128; 328503, 3798162; 328513, 3798192; 328509, 3798209; 
328496, 3798209; 328474, 3798249; 328456, 3798271; 328452, 3798324; 
328440, 3798362; 328447, 3798381; 328456, 3798420; 328483, 3798456; 
328500, 3798486; 328501, 3798520; 328493, 3798536; 328464, 3798536; 
328445, 3798539; 328443, 3798562; 328431, 3798594; 328419, 3798630; 
328413, 3798658; 328405, 3798677; 328402, 3798701; 328399, 3798716; 
328392, 3798725; 328370, 3798733; 328360, 3798733; 328342, 3798748; 
328322, 3798765; 328309, 3798775; 328308, 3798793; 328308, 3798821; 
328302, 3798837; 328301, 3798861; 328306, 3798879; 328303, 3798898; 
328293, 3798911; 328279, 3798917; 328262, 3798938; 328240, 3798967; 
328215, 3798987; 328186, 3799000; 328164, 3799007; 328158, 3799014; 
328161, 3799027; 328174, 3799051; 328188, 3799082; 328195, 3799097; 
328194, 3799114; 328182, 3799123; 328168, 3799127; 328149, 3799122; 
328140, 3799117; 328127, 3799112; 328122, 3799116; 328117, 3799139; 
328096, 3799178; 328038, 3799245; 328002, 3799293; 327989, 3799302; 
327972, 3799331; 327962, 3799355; 327956, 3799383; 327945, 3799400; 
327931, 3799414; 327916, 3799417; 327906, 3799418; 327898, 3799427; 
327883, 3799430; 327867, 3799434; 327854, 3799454; 327851, 3799475; 
327852, 3799498; 327850, 3799528; 327839, 3799553; 327833, 3799563; 
327810, 3799598; 327803, 3799622; 327797, 3799653; 327794, 3799688; 
327790, 3799711; 327783, 3799722; 327768, 3799731; 327761, 3799737; 
327755, 3799745; 327759, 3799761; 327752, 3799774; 327730, 3799811; 
327712, 3799844; 327694, 3799873; 327685, 3799893; 327678, 3799936; 
327664, 3799973; 327658, 3800004; 327663, 3800029; 327674, 3800049; 
327685, 3800106; 327693, 3800146; 327717, 3800188; 327737, 3800226; 
327758, 3800262; 327761, 3800294; 327748, 3800325; 327697, 3800375; 
327674, 3800398; 327671, 3800427; thence returning to 327683, 3800456.
    (ii) Note: Map of Unit 2 for Helianthus paradoxus (Map 4) follows:
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    (8) Unit 3: Santa Rosa, Guadalupe County, New Mexico.
    (i) Subunit 3a for Helianthus paradoxus, Blue Hole Cienega / Blue 
Hole Fish Hatchery Ponds, Guadalupe County, New Mexico. From USGS 
1:24,000 quadrangle Santa Rosa, lands bounded by the following UTM 
NAD83 coordinates (meters E, meters N):
    529408, 3865628; 529431, 3865639; 529449, 3865654; 529468, 3865681; 
529481, 3865715; 529491, 3865773; 529491, 3865792; 529478, 3865810; 
529467, 3865832; 529465, 3865863; 529472, 3865903; 529484, 3865943; 
529494, 3866006; 529507, 3866073; 529505, 3866104; 529497, 3866123; 
529484, 3866171; 529479, 3866207; 529483, 3866245; 529489, 3866310; 
529489, 3866366; 529640, 3866364; 529771, 3866366; 529910, 3866363; 
529980, 3866361; 529991, 3866355; 529996, 3866347; 529991, 3866329; 
529988, 3866289; 529980, 3866217; 529967, 3866125; 529959, 3866012; 
529957, 3865985; 529887, 3865918; 529859, 3865879; 529876, 3865756; 
529962, 3865656; 530041, 3865519; 530099, 3865390; 530105, 3865209; 
530091, 3865144; 529784, 3865313; 529705, 3865355; 529593, 3865417; 
529522, 3865456; 529550, 3865504; 529505, 3865533; 529524, 3865564; 
thence returning to 529408, 3865628.
    529555, 3866753; 529618, 3866754; 529654, 3866751; 529702, 3866748; 
529706, 3866687; 529712, 3866651; 529713, 3866618; 529717, 3866581; 
529717, 3866559; 529652, 3866555; 529640, 3866558; 529638, 3866609; 
529634, 3866613; 529590, 3866609; 529556, 3866611; 529556, 3866639; 
529555, 3866683; thence returning to 529555, 3866753.
    (ii) Note: Map of Subunit 3a for Helianthus paradoxus (Map 5) 
follows:

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    (iii) Subunit 3b for Helianthus paradoxus, Westside Spring, 
Guadalupe County, New Mexico. From USGS 1:24,000 quadrangle Santa Rosa, 
lands bounded by the following UTM NAD83 coordinates (meters E, meters 
N): 527977, 3864746; 527990, 3864762; 527999, 3864783; 528009, 3864801; 
528033, 3864823; 528054, 3864837; 528079, 3864848; 528103, 3864852; 
528121, 3864843; 528125, 3864832; 528125, 3864813; 528123, 3864796; 
528118, 3864780; 528108, 3864756; 528095, 3864734; 528072, 3864717; 
528047, 3864697; 528018, 3864676; 527987, 3864654; 527961, 3864633; 
527932, 3864613; 527906, 3864594; 527886, 3864575; 527866, 3864561; 
527850, 3864551; 527836, 3864552; 527838, 3864566; 527852, 3864585; 
527869, 3864606; 527886, 3864626; 527903, 3864648; 527921, 3864672; 
527938, 3864694; 527957, 3864716; 527961, 3864722; 527975, 3864743; 
thence returning to 527977, 3864746.
    (iv) Note: Map of Subunit 3b for Helianthus paradoxus (Map 6) 
follows:

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    (9) Unit 4: Roswell/Dexter, Chaves County, New Mexico.
    (i) Subunit 4a for Helianthus paradoxus, Bitter Lake National 
Wildlife Refuge/City of Roswell Land, Chaves County, New Mexico. From 
USGS 1:24,000 quadrangle Bitter Lake, lands bounded by the following 
UTM NAD83 coordinates (meters E, meters N):
    553930, 3697605; 553934, 3697207; 554338, 3697211; 554336, 3696806; 
554330, 3696733; 554330, 3696665; 554327, 3696605; 554268, 3696635; 
554205, 3696666; 554127, 3696699; 554092, 3696768; 554089, 3696787; 
554084, 3696811; 554048, 3696856; 554021, 3696861; 553990, 3696861; 
553957, 3696849; 553925, 3696849; 553881, 3696851; 553847, 3696860; 
553809, 3696885; 553793, 3696903; 553765, 3696930; 553751, 3696954; 
553740, 3696972; 553738, 3696995; 553733, 3697019; 553718, 3697038; 
553716, 3697053; 553710, 3697067; 553702, 3697088; 553691, 3697115; 
553689, 3697128; 553684, 3697150; 553673, 3697170; 553652, 3697201; 
553624, 3697231; 553617, 3697248; 553614, 3697266; 553601, 3697291; 
553600, 3697304; 553580, 3697324; 553571, 3697335; 553567, 3697359; 
553567, 3697381; 553569, 3697402; 553577, 3697416; 553587, 3697427; 
553601, 3697453; 553627, 3697474; 553647, 3697485; 553663, 3697495; 
553689, 3697518; 553709, 3697535; 553731, 3697546; 553765, 3697552; 
553808, 3697556; 553866, 3697558; 553895, 3697563; 553916, 3697574; 
553923, 3697590; thence returning to 553930, 3697605.
    (ii) Note: Map of Subunit 4a for Helianthus paradoxus (Map 7) 
follows:

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    (iii) Subunit 4c for Helianthus paradoxus, Oasis Dairy Subunit, 
Chaves County, New Mexico. From USGS 1:24,000 quadrangles Bottomless 
Lakes and South Spring, lands bounded by the following UTM NAD83 
coordinates (meters E, meters N): 559225, 3688383; 559265, 3688370; 
559292, 3688339; 559312, 3688333; 559335, 3688294; 559348, 3688262; 
559355, 3688228; 559377, 3688207; 559420, 3688160; 559431, 3688128; 
559436, 3688078; 559458, 3688030; 559492, 3687977; 559523, 3687927; 
559548, 3687893; 559579, 3687870; 559595, 3687851; 559617, 3687819; 
559638, 3687777; 559649, 3687709; 559647, 3687656; 559636, 3687605; 
559608, 3687555; 559584, 3687497; 559559, 3687483; 559533, 3687486; 
559506, 3687488; 559486, 3687523; 559475, 3687573; 559474, 3687634; 
559481, 3687686; 559480, 3687729; 559469, 3687782; 559446, 3687826; 
559433, 3687871; 559412, 3687924; 559385, 3687977; 559365, 3688014; 
559345, 3688040; 559325, 3688077; 559305, 3688122; 559282, 3688159; 
559238, 3688182; 559204, 3688219; 559184, 3688267; 559184, 3688314; 
559199, 3688359; thence returning to 559225, 3688383.
    558767, 3686447; 558771, 3686449; 558790, 3686451; 558823, 3686444; 
558852, 3686446; 558879, 3686451; 558899, 3686458; 558917, 3686464; 
558932, 3686466; 558952, 3686459; 558963, 3686453; 558977, 3686433; 
558986, 3686422; 558997, 3686411; 559012, 3686407; 559030, 3686392; 
559038, 3686377; 559038, 3686361; 559035, 3686343; 559031, 3686291; 
559031, 3686253; 559026, 3686238; 559014, 3686223; 558985, 3686205; 
558960, 3686191; 558934, 3686182; 558915, 3686177; 558884, 3686164; 
558866, 3686152; 558839, 3686137; 558817, 3686127; 558804, 3686124; 
558795, 3686123; 558772, 3686135; 558745, 3686144; 558722, 3686150; 
558700, 3686157; 558678, 3686161; 558650, 3686157; 558621, 3686154; 
558589, 3686153; 558561, 3686152; 558534, 3686153; 558498, 3686144; 
558467, 3686137; 558439, 3686122; 558415, 3686108; 558398, 3686086; 
558385, 3686058; 558380, 3686024; 558387, 3685985; 558396, 3685944; 
558404, 3685914; 558408, 3685894; 558404, 3685879; 558387, 3685862; 
558363, 3685843; 558338, 3685818; 558318, 3685805; 558305, 3685787; 
558290, 3685762; 558284, 3685734; 558286, 3685712; 558292, 3685684; 
558294, 3685662; 558288, 3685634; 558286, 3685609; 558276, 3685584; 
558262, 3685566; 558253, 3685552; 558232, 3685540; 558208, 3685531; 
558183, 3685532; 558148, 3685542; 558126, 3685553; 558099, 3685568; 
558086, 3685583; 558073, 3685608; 558071, 3685633; 558079, 3685654; 
558095, 3685671; 558115, 3685672; 558132, 3685672; 558150, 3685666; 
558163, 3685655; 558192, 3685654; 558209, 3685658; 558221, 3685671; 
558221, 3685689; 558221, 3685714; 558220, 3685738; 558211, 3685759; 
558209, 3685781; 558207, 3685799; 558218, 3685819; 558232, 3685829; 
558250, 3685836; 558262, 3685843; 558270, 3685859; 558275, 3685880; 
558273, 3685888; 558255, 3685909; 558253, 3685931; 558252, 3685946; 
558256, 3685956; 558259, 3685975; 558260, 3685989; 558258, 3686009; 
558256, 3686024; 558250, 3686035; 558240, 3686046; 558233, 3686056; 
558223, 3686065; 558221, 3686071; 558220, 3686078; 558224, 3686092; 
558227, 3686102; 558227, 3686119; 558219, 3686147; 558215, 3686174; 
558216, 3686193; 558228, 3686212; 558243, 3686232; 558267, 3686257; 
558281, 3686271; 558297, 3686283; 558315, 3686290; 558338, 3686302; 
558355, 3686314; 558368, 3686325; 558393, 3686346; 558406, 3686362; 
558423, 3686381; 558432, 3686397; 558438, 3686423; 558437, 3686445; 
558425, 3686461; 558410, 3686475; 558392, 3686490; 558373, 3686507; 
558364, 3686529; 558413, 3686519; 558466, 3686502; 558514, 3686488; 
558558, 3686475; 558601, 3686470; 558635, 3686457; 558667, 3686443; 
558689, 3686445; 558720, 3686431; thence returning to 558767, 3686447.
    (iv) Note: Map of Subunit 4c for Helianthus paradoxus (Map 8) 
follows:

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    (v) Subunit 4d for Helianthus paradoxus, Lea Lake at Bottomless 
Lakes State Park, Chaves County, New Mexico. From USGS 1:24,000 
quadrangle Bottomless Lakes, lands bounded by the following UTM NAD83 
coordinates (meters E, meters N): 562371, 3687020; 562381, 3687019; 
562402, 3687011; 562419, 3686993; 562437, 3686976; 562464, 3686956; 
562476, 3686950; 562499, 3686947; 562515, 3686938; 562519, 3686919; 
562520, 3686895; 562511, 3686875; 562495, 3686857; 562483, 3686851; 
562471, 3686849; 562453, 3686850; 562442, 3686836; 562432, 3686814; 
562420, 3686784; 562409, 3686747; 562410, 3686718; 562402, 3686690; 
562391, 3686663; 562366, 3686642; 562325, 3686637; 562286, 3686639; 
562276, 3686652; 562230, 3686695; 562216, 3686715; 562203, 3686732; 
562200, 3686752; 562201, 3686770; 562203, 3686791; 562208, 3686818; 
562221, 3686835; 562225, 3686852; 562222, 3686868; 562216, 3686888; 
562217, 3686914; 562230, 3686939; 562250, 3686958; 562270, 3686978; 
562293, 3686992; 562323, 3687006; 562351, 3687016; thence returning to 
562371, 3687020.
    (vi) Note: Map of Subunit 4d for Helianthus paradoxus (Map 9) 
follows:

[[Page 14362]]

[GRAPHIC] [TIFF OMITTED] TP27MR07.008


[[Page 14363]]


    (vii) Subunit 4e for Helianthus paradoxus, Dexter Cienega, Chaves 
County, New Mexico. From USGS 1:24,000 quadrangle Dexter East, lands 
bounded by the following UTM NAD83 coordinates (meters E, meters N): 
559316, 3678509; 559316, 3678510; 559329, 3678521; 559339, 3678530; 
559355, 3678547; 559372, 3678557; 559402, 3678565; 559412, 3678566; 
559432, 3678560; 559452, 3678542; 559471, 3678532; 559508, 3678527; 
559525, 3678528; 559567, 3678532; 559595, 3678535; 559622, 3678521; 
559635, 3678495; 559645, 3678472; 559648, 3678443; 559642, 3678414; 
559630, 3678392; 559622, 3678376; 559606, 3678361; 559582, 3678344; 
559549, 3678334; 559519, 3678314; 559493, 3678303; 559464, 3678290; 
559439, 3678280; 559410, 3678271; 559381, 3678263; 559358, 3678260; 
559329, 3678249; 559293, 3678233; 559265, 3678223; 559234, 3678215; 
559205, 3678201; 559177, 3678193; 559160, 3678178; 559132, 3678157; 
559111, 3678136; 559083, 3678118; 559048, 3678097; 559012, 3678082; 
558980, 3678067; 558948, 3678058; 558915, 3678047; 558884, 3678045; 
558855, 3678046; 558830, 3678054; 558801, 3678062; 558776, 3678067; 
558754, 3678070; 558732, 3678071; 558714, 3678078; 558703, 3678089; 
558702, 3678101; 558703, 3678116; 558711, 3678128; 558728, 3678126; 
558757, 3678122; 558776, 3678124; 558812, 3678130; 558833, 3678134; 
558843, 3678141; 558856, 3678145; 558869, 3678166; 558895, 3678186; 
558906, 3678205; 558926, 3678207; 558948, 3678215; 558966, 3678227; 
558976, 3678240; 558995, 3678256; 559017, 3678272; 559038, 3678284; 
559074, 3678307; 559099, 3678323; 559124, 3678334; 559157, 3678352; 
559185, 3678364; 559210, 3678373; 559242, 3678378; 559260, 3678389; 
559269, 3678401; 559268, 3678424; 559272, 3678437; 559285, 3678457; 
559299, 3678486; thence returning to 559316, 3678509.
    (viii) Note: Map of Subunit 4e for Helianthus paradoxus (Map 10) 
follows:

[[Page 14364]]

[GRAPHIC] [TIFF OMITTED] TP27MR07.009


[[Page 14365]]


    (10) Unit 5: West Texas--Diamond Y Springs, Pecos County, Texas.
    (i) Unit 5 for Helianthus paradoxus, West Texas--Diamond Y Spring, 
Pecos County, Texas. From USGS 1:24,000 quadrangles Diamond Y Spring 
and Fort Stockton West, lands bounded by the following UTM NAD83 
coordinates (meters E, meters N): 699410, 3432430; 699368, 3432356; 
699338, 3432300; 699323, 3432253; 699323, 3432205; 699328, 3432141; 
699320, 3432086; 699291, 3432054; 699243, 3432009; 699185, 3431996; 
699137, 3431991; 699068, 3431999; 698992, 3431993; 698941, 3431977; 
698883, 3431961; 698849, 3431935; 698793, 3431924; 698719, 3431906; 
698679, 3431901; 698616, 3431884; 698565, 3431825; 698552, 3431741; 
698542, 3431685; 698539, 3431606; 698523, 3431558; 698486, 3431510; 
698425, 3431455; 698391, 3431420; 698362, 3431378; 698348, 3431325; 
698333, 3431296; 698295, 3431288; 698240, 3431291; 698200, 3431330; 
698168, 3431405; 698163, 3431479; 698190, 3431561; 698237, 3431624; 
698280, 3431680; 698274, 3431751; 698303, 3431839; 698325, 3431900; 
698346, 3431952; 698356, 3432021; 698333, 3432058; 698253, 3432048; 
698126, 3432003; 698044, 3431995; 697994, 3432011; 697933, 3432019; 
697877, 3432040; 697831, 3432050; 697785, 3432055; 697785, 3432459; 
697841, 3432429; 697913, 3432408; 697990, 3432391; 698060, 3432384; 
698110, 3432373; 698173, 3432366; 698237, 3432370; 698321, 3432366; 
698371, 3432377; 698417, 3432387; 698459, 3432384; 698519, 3432380; 
698565, 3432380; 698607, 3432380; 698653, 3432387; 698710, 3432401; 
698759, 3432426; 698830, 3432461; 698872, 3432497; 698918, 3432532; 
698978, 3432592; 699059, 3432656; 699119, 3432691; 699183, 3432726; 
699262, 3432748; 699299, 3432756; 699405, 3432732; 699463, 3432674; 
699473, 3432613; 699484, 3432525; 699468, 3432494; thence returning to 
699410, 3432430.
    (ii) Note: Map of Unit 5 for Helianthus paradoxus (Map 11) follows:

[[Page 14366]]

[GRAPHIC] [TIFF OMITTED] TP27MR07.010

* * * * *

    Dated: March 15, 2007.
Todd Willens,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 07-1396 Filed 3-26-07; 8:45 am]
BILLING CODE 4310-55-C


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