Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Suwannee Moccasinshell
| Published date | 27 November 2019 |
| Citation | 84 FR 65325 |
| Record Number | 2019-25598 |
| Section | Proposed rules |
| Court | Fish And Wildlife Service |
Federal Register, Volume 84 Issue 229 (Wednesday, November 27, 2019)
[Federal Register Volume 84, Number 229 (Wednesday, November 27, 2019)]
[Proposed Rules]
[Pages 65325-65345]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-25598]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R4-ES-2019-0059; 4500030114]
RIN 1018-BD09
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for Suwannee Moccasinshell
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 Suwannee moccasinshell (Medionidus
walkeri) under the Endangered Species Act (Act). The Suwannee
moccasinshell is a freshwater mussel species from the Suwannee River
Basin in Florida and Georgia. In total, approximately 306 kilometers
(190 miles) of stream channels in Alachua, Bradford, Columbia, Dixie,
Gilchrist, Hamilton, Lafayette, Madison, Suwannee, and Union Counties,
Florida, and Brooks and Lowndes Counties, Georgia, fall within the
boundaries of the proposed critical habitat designation. If we finalize
this rule as proposed, it would extend the Act's protections to this
species' critical habitat. The effect of this regulation is to
designate critical habitat for the Suwannee moccasinshell under the
Act. We also announce the availability of a draft economic analysis of
the proposed designation.
DATES: We will accept comments on the proposed rule or draft economic
analysis that are received or postmarked on or before January 27, 2020.
Comments submitted electronically using the Federal eRulemaking Portal
(see ADDRESSES below) must be received by 11:59 p.m. Eastern Time on
the closing date. We must receive requests for public hearings, in
writing, at the address shown in ADDRESSES by January 13, 2020.
ADDRESSES: You may submit comments on the proposed rule or draft
economic analysis by one of the following methods:
(1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Keyword box, enter FWS-R4-ES-2019-0059,
which is the docket number for this rulemaking. Then, in the Search
panel on the left side of the screen, under the Document Type heading,
click on the Proposed Rules link to locate this document. You may
submit a comment by clicking on ``Comment Now!''
(2) By hard copy: Submit by U.S. mail or hand-delivery to: Public
Comments Processing, Attn: FWS-R4-ES-2019-0059; U.S. Fish and Wildlife
Service Headquarters, MS: JAO/1N, 5275 Leesburg Pike, Falls Church, VA
22041-3803.
We request that you send comments only by the methods described
above. We will post all comments on http://www.regulations.gov. This
generally means that we will also include any personal information you
provide during the comment period (see the Information Requested
section below for more information).
Document availability: The DEA is available at http://www.fws.gov/PanamaCity and at http://www.regulations.gov at Docket No. FWS-R4-ES-
2019-0059, and at the Panama City Ecological Services Field Office (see
FOR FURTHER INFORMATION CONTACT).
The coordinates from which the maps are generated are included in
the critical habitat unit descriptions of this document and are
available at http://www.fws.gov/PanamaCity, and at http://www.regulations.gov at Docket No. FWS-R4-ES-2019-0059 and at the Panama
City Ecological Services Field Office (see FOR FURTHER INFORMATION
CONTACT). Additional tools or supporting information that we may
[[Page 65326]]
develop for this critical habitat designation will be available at the
Fish and Wildlife Service website and Field Office set out above, and
may also be included in the preamble and/or at http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Sean M. Blomquist, Acting Field
Supervisor, U.S. Fish and Wildlife Service, Panama City Ecological
Services Field Office, 1601 Balboa Avenue, Panama City, FL 32405; by
telephone 850-769-0552; or by facsimile at 850-763-2177. If you use a
telecommunications device for the deaf, call the Federal Relay Service
at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. Under the Endangered Species Act,
when we list any species as threatened or endangered we must designate
critical habitat to the maximum extent prudent and determinable.
Designation of critical habitat can only be completed by issuing a
rule.
What this document does. This document is a proposed rule for
designation of critical habitat for the Suwannee moccasinshell in the
Suwannee River Basin in Florida and Georgia. It provides our rationale
for pursuing this rulemaking action.
The basis for our action. Under the Endangered Species Act, when we
determine that a species is threatened or endangered, we must, to the
maximum extent prudent and determinable, designate critical habitat.
Section 4(b)(2) of the Endangered Species Act states that the Secretary
shall designate critical habitat 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.
Economic impacts. We have prepared an analysis of the economic
impacts of the proposed critical habitat designation and related
factors. We hereby announce the availability of the draft economic
analysis and seek additional public review and comment.
We will seek peer review. We are seeking comments from independent
specialists to ensure that our listing proposal is based on
scientifically sound data and analyses. We have invited these peer
reviewers to comment on our specific assumptions and conclusions in
this listing proposal.
Information Requested
We intend that any final action resulting from this proposed rule
will be based on the best scientific and commercial data available and
be as accurate and as effective as possible. Therefore, we request
comments or information from other concerned government agencies, the
scientific community, industry, or any other interested party
concerning this proposed rule. We particularly seek comments
concerning:
(1) The reasons why we should or should not designate habitat as
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et
seq.) including information to inform the following factors such that a
designation of critical habitat may be determined to be not prudent:
(a) The species is threatened by taking or other human activity and
identification of critical habitat can be expected to increase the
degree of such threat to the species;
(b) The present or threatened destruction, modification, or
curtailment of a species' habitat or range is not a threat to the
species, or threats to the species' habitat stem solely from causes
that cannot be addressed through management actions resulting from
consultations under section 7(a)(2) of the Act;
(c) Areas within the jurisdiction of the United States provide no
more than negligible conservation value, if any, for a species
occurring primarily outside the jurisdiction of the United States; or
(d) No areas meet the definition of critical habitat.
(2) Specific information on:
(a) The amount and distribution of Suwannee moccasinshell habitat,
(b) What areas, that were occupied at the time of listing and that
contain the physical or biological features essential to the
conservation of the species, should be included in the designation and
why,
(c) Special management considerations or protection that may be
needed in critical habitat areas we are proposing, including managing
for the potential effects of climate change, and
(d) What areas not occupied at the time of listing are essential
for the conservation of the species. We particularly seek comments
regarding:
(i) Whether occupied areas are inadequate for the conservation of
the species; and,
(ii) Specific information that supports the determination that
unoccupied areas will, with reasonable certainty, contribute to the
conservation of the species and, contain at least one physical or
biological feature essential to the conservation of the species.
(3) Land use designations and current or planned activities in the
subject areas and their possible impacts on proposed critical habitat.
(4) Information on the projected and reasonably likely impacts of
climate change on the Suwannee moccasinshell and proposed critical
habitat.
(5) Any probable economic, national security, or other relevant
impacts of designating any area that may be included in the final
designation and the benefits of including or excluding areas that
exhibit these impacts.
(6) Information on the extent to which the description of economic
impacts in the draft economic analysis is a reasonable estimate of the
likely economic impacts.
(7) Whether we could improve or modify our approach to designating
critical habitat in any way to provide for greater public participation
and understanding, or to better accommodate public concerns and
comments.
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in ADDRESSES. We request that you
send comments only by the methods described in ADDRESSES.
All comments submitted electronically via http://www.regulations.gov will be presented on the website in their entirety
as submitted. For comments submitted via hard copy, we will post your
entire comment--including your personal identifying information--on
http://www.regulations.gov. You may request at the top of your document
that we withhold personal information such as your street address,
phone number, or email address from public review; however, we cannot
guarantee that we will be able to do so.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection on http://www.regulations.gov, or by
appointment, during normal business hours, at the U.S. Fish and
Wildlife Service, Panama City Ecological Services Office, Panama City,
FL (see FOR FURTHER INFORMATION CONTACT). Because we will consider all
comments and information received during the
[[Page 65327]]
comment period, our final determinations may differ from this proposal.
Previous Federal Actions
On October 6, 2015, we published a proposed rule to list the
Suwannee moccasinshell as threatened (80 FR 60335) under the Endangered
Species Act of 1973, as amended (ESA or Act; 16 U.S.C. 1531 et seq.).
Publication of the proposed rule opened a 60-day comment period, which
closed on December 7, 2015. On October 6, 2016, we published the final
rule listing the species as threatened (81 FR 69417). Federal actions
prior to October 6, 2016, affecting the species are outlined in the
proposed listing rule.
Critical Habitat
Background
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features.
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Our regulations at 50 CFR 424.02 define the geographical area
occupied by the species as: An area that may generally be delineated
around species' occurrences, as determined by the Secretary (i.e.,
range). Such areas may include those areas used throughout all or part
of the species' life cycle, even if not used on a regular basis (e.g.,
migratory corridors, seasonal habitats, and habitats used periodically,
but not solely by vagrant individuals).
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
an endangered or threatened species to the point at which the measures
provided pursuant to 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 requirement that Federal agencies ensure, in consultation
with the Service, that any action they authorize, fund, or carry out is
not 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 the government
or public to access private lands. Such designation does not require
implementation of restoration, recovery, or enhancement measures by
non-Federal landowners. Where a landowner requests Federal agency
funding or authorization for an action that may affect a listed species
or critical habitat, the consultation requirements of section 7(a)(2)
of the Act would apply, but even in the event of a destruction or
adverse modification finding, the obligation of the Federal action
agency and the landowner is not to restore or recover the species, but
to implement reasonable and prudent alternatives to avoid destruction
or adverse modification of critical habitat.
Under the first prong of the Act's definition of critical habitat,
areas within the geographical area occupied by the species at the time
it was listed are included in a critical habitat designation if they
contain physical or biological features (1) which are essential to the
conservation of the species and (2) which may require special
management considerations or protection. For these areas, critical
habitat designations identify, to the extent known using the best
scientific and commercial data available, those physical or biological
features that are essential to the conservation of the species (such as
space, food, cover, and protected habitat). In identifying those
physical or biological features that occur in specific areas, we focus
on the specific features that are essential to support the life-history
needs of the species, including but not limited to, water
characteristics, soil type, geological features, prey, vegetation,
symbiotic species, or other features. A feature may be a single habitat
characteristic, or a more complex combination of habitat
characteristics. Features may include habitat characteristics that
support ephemeral or dynamic habitat conditions. Features may also be
expressed in terms relating to principles of conservation biology, such
as patch size, distribution distances, and connectivity.
Under the second prong of the Act's definition of critical habitat,
we can designate critical habitat in areas outside the geographical
area occupied by the species at the time it is listed, upon a
determination that such areas are essential for the conservation of the
species. When designating critical habitat, the Secretary will first
evaluate areas occupied by the species. The Secretary will only
consider unoccupied areas to be essential where a critical habitat
designation limited to geographical areas occupied by the species would
be inadequate to ensure the conservation of the species. In addition,
for an unoccupied area to be considered essential, the Secretary must
determine that there is a reasonable certainty both that the area will
contribute to the conservation of the species and that the area
contains one or more of those physical or biological features essential
to the conservation of the species.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific data available. Further, our Policy on
Information Standards Under the Endangered Species Act (published in
the Federal Register on July 1, 1994 (59 FR 34271)), the Information
Quality Act (section 515 of the Treasury and General Government
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)),
and our associated Information Quality Guidelines, provide criteria,
establish procedures, and provide guidance to ensure that our decisions
are based on the best scientific data available. They require our
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 we are determining which areas should be designated as
critical habitat, our primary source of information is generally the
information developed during the listing process 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, other unpublished materials, or
experts' opinions or personal knowledge.
Habitat is dynamic, and species may move from one area to another
over time. We recognize that critical habitat designated at a
particular point in time may not include all of the habitat areas
[[Page 65328]]
that we may later determine are necessary for the recovery of the
species. For these reasons, a critical habitat designation does not
signal that habitat outside the designated area is unimportant or may
not be needed for recovery of the species. Areas that are important to
the conservation of the species, both inside and outside the critical
habitat designation, will continue to be subject to: (1) Conservation
actions implemented under section 7(a)(1) of the Act, (2) regulatory
protections afforded by the requirement in section 7(a)(2) of the Act
for Federal agencies to ensure their actions are not likely to
jeopardize the continued existence of any endangered or threatened
species, and (3) section 9 of the Act's prohibitions on taking any
individual of the species, including taking caused by actions that
affect habitat. Federally funded or permitted projects affecting listed
species outside their designated critical habitat areas may still
result in jeopardy findings in some cases. These protections and
conservation tools will continue to contribute to recovery of this
species. 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 (HCPs), or other species conservation planning
efforts if new information available at the time of these planning
efforts calls for a different outcome.
Prudency Determination
Section 4(a)(3) of the Act, as amended, and implementing
regulations (50 CFR 424.12), require that the Secretary shall designate
critical habitat at the time the species is determined to be an
endangered or threatened species to the maximum extent prudent and
determinable. Our regulations (50 CFR 424.12(a)(1)) state that the
Secretary may, but is not required to, determine that a designation
would not be prudent in the following circumstances:
(i) The species is threatened by taking or other human activity and
identification of critical habitat can be expected to increase the
degree of such threat to the species;
(ii) The present or threatened destruction, modification, or
curtailment of a species' habitat or range is not a threat to the
species, or threats to the species' habitat stem solely from causes
that cannot be addressed through management actions resulting from
consultations under section 7(a)(2) of the Act;
(iii) Areas within the jurisdiction of the United States provide no
more than negligible conservation value, if any, for a species
occurring primarily outside the jurisdiction of the United States;
(iv) No areas meet the definition of critical habitat; or
(v) The Secretary otherwise determines that designation of critical
habitat would not be prudent based on the best scientific data
available.
As discussed in the final rule listing this species as threatened,
at the time of listing, there was no imminent threat of take attributed
to collection or vandalism of this species; and in the years since
listing, no threat of taking or vandalism have emerged. Identification
and mapping of critical habitat is not expected to initiate any such
threat. In our final listing rule, we determined that the present or
threatened destruction, modification, or curtailment of habitat or
range is a threat to the Suwannee moccasinshell and those threats may
be addressed by section 7(a)(2) consultation measures. The species
occurs wholly in the jurisdiction of the United States and we are able
to identify areas that meet the definition of critical habitat.
Therefore, because none of the circumstances enumerated in our
regulations at 50 CFR 424.12(a)(1) have been met and because there are
no other circumstances the Secretary has identified for which this
designation of critical habitat would be not prudent we have determined
that the designation of critical habitat is prudent for the Suwannee
moccasinshell.
Critical Habitat Determinability
Having determined that designation is prudent, under section
4(a)(3) of the Act we must find whether critical habitat for the
Suwannee moccasinshell is determinable. Our regulations at 50 CFR
424.12(a)(2) state that critical habitat is not determinable when one
or both of the following situations exist:
(i) Data sufficient to perform required analyses are lacking, or
(ii) The biological needs of the species are not sufficiently well
known to identify any area that meets the definition of ``critical
habitat.''
We reviewed the available information pertaining to the biological
needs of the species and habitat characteristics where the species is
located. This and other information represent the best scientific data
available and lead us to conclude that the designation of critical
habitat is determinable for the Suwannee moccasinshell.
Physical or Biological Features Essential to the Conservation of the
Species
In accordance with section 3(5)(A)(i) of the Act and regulations at
50 CFR 424.12(b), in determining which areas we will designate as
critical habitat from within the geographical area occupied by the
species at the time of listing, we consider the physical or biological
features that are essential to the conservation of the species and that
may require special management considerations or protection. We have
defined physical or biological features essential to the conservation
of the species in 50 CFR 424.02. Categories of physical or biological
features 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, or 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.
Summary of Essential Physical or Biological Features
We derive the specific physical or biological features essential
for the Suwannee moccasinshell from studies of its habitat, ecology,
and life history as described below. Additional information can be
found in the final listing rule published in the Federal Register on
October 6, 2016 (81 FR 69417).
Space for Individual and Population Growth and for Normal Behavior
Mussels generally live embedded in the bottom of stable streams and
other bodies of water, in areas where flow velocities are sufficient to
remove finer sediments and provide well-oxygenated waters. The Suwannee
moccasinshell inhabits creeks and rivers where it is found in
substrates of sand or a mixture of sand and gravel, and in areas with
slow to moderate current (Williams 2015, p. 2). The Suwannee
moccasinshell, similar to other mussels, is dependent on areas with
flow refuges, where shear stress is relatively low and sediments remain
stable during high flow events (Strayer 1999, pp. 468, 472; Hastie et
al. 2001, pp. 111-114; Gangloff and Feminella 2007, p. 71). The species
is often associated with large woody material embedded in the
substrate, which may help stabilize substrates and
[[Page 65329]]
act as a flow refuge. Substrates that remain stable in high flows
conceivably allow these relatively sedentary animals to remain in the
same general location throughout their entire lives. These habitat
conditions not only provide space for Suwannee moccasinshell
populations, but also provide cover and shelter and sites for breeding,
reproduction, and growth of offspring.
Food, Water, Air, Light, Minerals, or Other Nutritional or
Physiological Requirements
Freshwater mussels, such as the Suwannee moccasinshell, siphon
water into their shells and across four gills that are specialized for
respiration, food collection, and brooding larvae in females. Food
items include fine detritus (particles of organic debris), algae,
diatoms, and bacteria (Strayer et al. 2004, pp. 430-431, Vaughn et al.
2008, p. 410). Adult mussels obtain food items both from the water
column and from the sediment, either by taking water in through the
incurrent siphon or by moving material extracted from sediments into
their shell using cilia (hair-like structures) on their foot. For the
first several months, juvenile mussels feed primarily with their foot,
although they also may filter interstitial (pore) water (Yeager et al.
1994, pp. 217-221). Food availability and quality for the Suwannee
moccasinshell is affected by habitat stability, floodplain
connectivity, flow, and water and sediment quality. Adequate food
availability and quality is essential for normal behavior, growth, and
viability during all life stages of this species.
The Suwannee moccasinshell is a riverine species that depends upon
adequate amounts of flowing water. Flowing water transports food items
to the sedentary juvenile and adult life stages, provides oxygen for
respiration, removes wastes, transports sperm to females, and maintains
the stream bottom habitats where the species is found (the effects of
flow alteration on habitat is discussed below under Habitats Protected
from Disturbance). A sufficient amount of continuously flowing water is
a feature essential to this species.
The ranges of standard water quality characteristics (such as
temperature, dissolved oxygen, pH, and conductivity) required by the
Suwannee moccasinshell for normal behavior, growth, and viability of
all life stages have not been investigated or are poorly understood.
However, as relatively sedentary animals, mussels must tolerate the
full range of physical and chemical conditions that occur naturally
within the streams where they persist. The physical and chemical
conditions (water quality) within the Suwannee moccasinshell's
historical range may vary according to season, geology, climate events,
and human activities within the watershed. The combined effects of
groundwater pumping and drought can lower groundwater levels in the
basin, which can result in severely reduced stream flows for extended
periods (Grubbs and Crandall 2007, p. 78; Torak et al. 2010, pp. 46-
47). Moreover, increased stream temperatures and decreased dissolved
oxygen concentrations are important secondary effects associated with
flow reduction and cessation. Sensitive mussel species like the
Suwannee moccasinshell may suffer lethal and non-lethal effects to low
dissolved oxygen levels and elevated stream temperatures (Johnson et
al. 2001, pp. 5-8; Golladay et al. 2004, p. 501; Haag and Warren 2008,
pp. 1174-1176), and is particularly susceptible to these conditions
during its early life stages (Sparks and Strayer 1998, pp. 132-133;
Pandolfo et al. 2010, p. 965; Archambault et al. 2013, p. 247).
Although specific physical and chemical tolerance ranges are not known
for the Suwannee moccasinshell, we believe that current numeric
standards for water quality criteria that have been adopted by the
States under the Clean Water Act (CWA) represent levels that are
essential to the conservation of the species.
Sites for Breeding, Reproduction, or Rearing (or Development) of
Offspring
Sites for breeding, reproduction, and development are tied to areas
in stable rivers and creeks where flow velocities are sufficient to
maintain habitats, and bottom substrates are composed of sand or a
mixture of sand and gravel (see Space for Individual and Population
Growth and for Normal Behavior above). Juvenile mussels depend upon
areas where substrates remain stable during high flow events. The
presence of large embedded logs may contribute to substrate stability
and act as flow refuges. The larvae of most freshwater mussels are
parasitic, requiring a period of encystment on a fish host in order to
transform into juvenile mussels. Thus, the presence of appropriate host
fishes to complete its reproductive life cycle is essential to the
Suwannee moccasinshell. In laboratory host trials, Suwannee
moccasinshell larvae transformed primarily on the blackbanded darter
(Percina nigrofasciata) and to a lesser extent on the brown darter
(Etheostoma edwini) (Johnson et al. 2016, p. 171). The blackbanded
darter is one of the most abundant darter species in coastal plain
streams, and the distribution of both fish species overlap with the
historical distribution of the Suwannee moccasinshell (Kuehne and
Barbour 1983, pp. 29-30; Robins et al. 2018, pp. 317, 336).
Habitats Protected From Disturbance
The Suwannee moccasinshell's habitat has been impacted by pollution
and reduced flows throughout its range, and by channel instability and
excessive sedimentation in portions of its range (see Factor A. The
Present or Threatened Destruction, Modification, or Curtailment of Its
Habitat or Range of the proposed listing rule).
An environment free from toxic levels of pollutants is essential to
the Suwannee moccasinshell, especially to its early life stages. There
is no specific information on the sensitivity of the species to common
municipal, agricultural, and industrial pollutants. However, as a
group, freshwater mussels are more sensitive to pollution than many
other aquatic organisms, and are one of the first species to respond to
water quality impacts (Haag 2012, p. 355) (see Pollution discussion
under Factor A of the final listing rule). We currently believe that
most numeric standards for pollutants that have been adopted by the
States under the CWA represent levels that are essential to the
conservation of the Suwannee moccasinshell. However, some standards may
not adequately protect sensitive mollusks like the Suwannee
moccasinshell, or are not being appropriately measured, monitored, or
achieved in some reaches (see Factor D. The Inadequacy of Existing
Regulatory Mechanisms section of the final listing rule).
The Suwannee moccasinshell is a riverine species that depends upon
a natural flow regime to maintain the benthic habitats where it lives.
A natural hydrologic regime is critical for the exchange of nutrients,
movement and spawning activities of potential fish hosts, and
maintenance of habitats. Altered flow regimes (including higher peak
flows, lower base flows, and changes to seasonal flow pulses) can
physically alter stream habitats. For example, increases in the amount
and rate at which stormwater runoff enters stream channels can erode
the stream bed and banks and cause sedimentation in downstream areas.
Reductions in stream flow can alter hydraulically mediated sediment
sorting throughout the river, which may displace or otherwise alter
habitat for the Suwannee moccasinshell and its host fishes. Changes in
flow regimes are attributable
[[Page 65330]]
to factors such as lowering of the groundwater table due to pumping,
changes in land use, and impoundments.
The Suwannee moccasinshell requires geomorphically stable stream
channels to maintain its habitats. Channel instability occurs when the
natural erosion process is accelerated leading to erosion (degradation)
and sediment deposition (aggradation), and can eventually lead to
channel incision (lowering of the streambed). Channel instability can
lead to profound changes to mussel habitats due to scouring and
sediment deposition (Hartfield 1993, p. 138). Stream channels can
become destabilized as a result of physical alterations to the channel
(such as dredging, straightening, impounding, and hardening), altered
stormwater runoff patterns, and disturbance to riparian areas. Natural
stream channel stability is achieved by allowing the river or creek to
develop a stable dimension, pattern, and profile such that, over time,
channel features are maintained and the stream channel neither degrades
nor aggrades. Stable rivers and creeks consistently transport their
sediment load, both in size and type, associated with local deposition
and scour (Rosgen 1996, pp. 1-3). These habitats are dynamic and are
formed and maintained by water quantity, channel features (dimension,
pattern, and profile), and natural sediment input to the system through
periodic flooding, which maintains connectivity and interaction with
the floodplain.
The Suwannee moccasinshell requires habitats that are free from
excessive sedimentation. Although sediment deposition is a normal
stream process, habitat may be degraded or destroyed in areas where
excessive amounts of sediment accumulate and smother habitat. Sediments
that enter via stormwater runoff, may also serve to transport
pollutants (like pesticides and surfactants) into streams (Haag 2012,
p. 378). Heavy accumulations of unconsolidated sediments can alter
bottom substrates to such a degree that it becomes uninhabitable for
mussels, particularly juveniles.
In conclusion, based on the analysis above, we have determined that
the following physical or biological features are essential to support
the Suwannee moccasinshell:
(1) Geomorphically stable stream channels (channels that maintain
lateral dimensions, longitudinal profiles, and sinuosity patterns over
time without an aggrading or degrading bed elevation).
(2) Stable substrates of muddy sand or mixtures of sand and gravel,
and with little to no accumulation of unconsolidated sediments and low
amounts of filamentous algae.
(3) A natural hydrologic flow regime (magnitude, frequency,
duration, and seasonality of discharge over time) necessary to maintain
benthic habitats where the species is found, and connectivity of stream
channels with the floodplain, allowing the exchange of nutrients and
sediment for habitat maintenance, food availability, and spawning
habitat for native fishes.
(4) Water quality conditions needed to sustain healthy Suwannee
moccasinshell populations, including low pollutant levels (not less
than State criteria), a natural temperature regime, pH (between 6.0 to
8.5), adequate oxygen content (not less than State criteria), hardness,
turbidity, and other chemical characteristics necessary for normal
behavior, growth, and viability of all life stages.
(5) The presence of abundant fish hosts necessary for recruitment
of the Suwannee moccasinshell. The presence of blackbanded darters
(Percina nigrofasciata) and brown darters (Etheostoma edwini) will
serve as an indication of fish host presence.
Special Management Considerations or Protection
When designating critical habitat, we assess whether the specific
areas within the geographical area occupied by the species at the time
of listing contain features that are essential to the conservation of
the species and which may require special management considerations or
protection. All three units that we are proposing for designation,
including the unit that was occupied by the species at the time of
listing, have mixed ownership of adjacent riparian lands with mainly
private (72 percent) and State (27 percent) lands (table 1). All State-
owned riparian lands are in Florida, and the majority are managed by
Florida's Suwannee River Water Management District (SRWMD). Tracts are
managed to maintain adequate water supply and water quality for natural
systems by preserving riparian habitats and restricting development
(SRWMD 2014, p. 3). The SRWMD also established minimum flows and levels
for the river channel in the lower basin, downstream of Fanning
Springs. Minimum flow and level criteria establish a limit at which
further withdrawals would be detrimental to water resources, taking
into consideration fish and wildlife habitats, the passage of fish,
sediment loads, and water quality, among others (SRWMD 2005, pp. 6-8).
In addition, the Suwannee River and Santa Fe River system have been
designated Outstanding Florida Waters (OFW), which prevents the
permitted discharge of pollutants that would lower existing water
quality of, or significantly degrade, the OFW. While these programs may
indirectly alleviate some detrimental impacts on aquatic habitats,
there currently are no plans or agreements designed specifically for
the conservation of the Suwannee moccasinshell or for freshwater
mussels in general.
The features essential to the conservation of the Suwannee
moccasinshell may require special management considerations or
protection to ameliorate the following threats: Reduced flows, nonpoint
source pollution (from stormwater runoff or infiltration), point source
pollution (from wastewater discharges or accidental releases), and
physical alterations to the stream channel (for example, dredging,
straightening, impounding, etc.). Special management considerations or
protection are required within critical habitat areas to ameliorate
these threats, and include (but are not limited to): (1) Moderation of
surface and ground water withdrawals; (2) improvement of the treatment
of wastewater discharged from permitted facilities and the operation of
those facilities; (3) reductions in pesticide and fertilizer use
especially in groundwater recharge areas and near stream channels; (4)
use of best management practices (BMPs) designed to reduce
sedimentation, erosion, and stream bank alteration; (5) protection and
restoration of riparian buffers; and (6) avoidance of physical
alternations to the stream channel. This only applies to federal
actions (see the Application of the ``Adverse Modification'' Standard
below for more information).
Criteria Used To Identify Critical Habitat
As required by section 4(b)(2) of the Act, we use the best
scientific data available to designate critical habitat. In accordance
with the Act and our implementing regulations at 50 CFR 424.12(b), we
review available information pertaining to the habitat requirements of
the species and identify specific areas within the geographical area
occupied by the species at the time of listing and any specific areas
outside the geographical area occupied by the species to be considered
for designation as critical habitat.
The current distribution of the species is much reduced from its
historical range. We anticipate that recovery will require continued
protection of the existing population and its habitat, as
[[Page 65331]]
well as reintroduction of Suwannee moccasinshell into historically
occupied areas, ensuring there are viable populations and that they
occur over a wide geographic area. Rangewide recovery considerations,
such as maintaining existing genetic diversity and striving for
representation of all major portions of the species' current range,
were considered in formulating this proposed critical habitat.
For this proposed rule, we completed the following steps to
delineate critical habitat (specific methods follow below):
(1) We compiled all available occurrence data records.
(2) We used confirmed presences from June 2001-March 2016 as the
foundation for identifying areas currently occupied.
(3) We evaluated habitat suitability of stream segments currently
occupied by the species, and retained all occupied stream segments.
(4) We evaluated unoccupied stream segments for suitability,
connectivity, and expansion, and identified areas containing the
components comprising the physical or biological features that may
require special management considerations or protection.
(5) We omitted some unoccupied areas that are highly degraded and
are not likely restorable (e.g., insufficient flowing water, channel
destabilized), and, therefore, are not considered essential for the
conservation of the species.
(6) We delineated boundaries of potential proposed critical habitat
units based on the above information.
Specific criteria and methodology used to determine proposed
critical habitat unit boundaries are discussed below.
Sources of data for this proposed critical habitat designation
include multiple databases maintained by Florida Fish and Wildlife
Conservation Commission, Dr. James D. Williams, Florida Museum of
Natural History, and U.S. Geological Survey; verified museum records
from multiple institutions (see Methods in Johnson et al. 2016, pp.
164-165); and a status report by Blalock-Herod and Williams (2001,
entire). Occurrence data included records collected from May 1916 to
March 2016. A large number of surveys were conducted throughout the
Suwannee River basin by Florida Fish and Wildlife Conservation
Commission biologists during 2012-2016, and all sites with historical
occurrences of Suwannee moccasinshell were sampled during this period.
Sources of information pertaining to habitat requirements of the
Suwannee moccasinshell include observations recorded during surveys and
information contained in Blalock-Herod and Williams (2001, entire) and
Williams et al. (2014, pp. 278-280).
Areas Occupied at the Time of Listing
We define ``currently occupied'' as river reaches with positive
surveys from 2000 to 2016. In making these determinations, we
recognized that known occurrences for some mussel species are extremely
localized, and rare mussels can be difficult to locate. In addition,
stream habitats are highly dependent upon upstream and downstream
channel habitat conditions for their maintenance. Therefore, we
considered the entire reach between the uppermost and lowermost
currently occupied locations to delineate the probable upstream and
downstream extent of the Suwannee moccasinshell's distribution. Within
the current range of the species, some habitats may or may not be
actively utilized by individuals, but we consider these areas to be
occupied at the scale of the geographic range of the species.
We propose to designate one occupied unit as critical habitat for
the Suwannee moccasinshell in the Suwannee River and lower Santa Fe
River. This area contains one or more of the physical or biological
features to support life-history processes essential to the
conservation of the Suwannee moccasinshell, and those physical or
biological features require special management conditions or
protections. This remaining population provides little redundancy for
the species, and a series of back-to-back stochastic events or a single
catastrophic event could significantly reduce or extirpate the
remaining population. Consequently, we have determined that the
occupied area is inadequate to ensure the conservation of the species.
Therefore, we have also identified, and are proposing for designation
of critical habitat, unoccupied areas that are essential for the
conservation of the species.
Areas Unoccupied at the Time of Listing
Because we have determined occupied areas alone are not adequate
for the conservation of the species, we have evaluated whether any
unoccupied areas are essential for the conservation of the species. We
are proposing as critical habitat two units that are currently
unoccupied. The units have at least one of the physical or biological
features essential to the conservation of the species and we are
reasonably certain that each will contribute to the conservation of the
species. Our specific rationale for each unit can be found below in the
unit descriptions below.
An examination of all available collection data shows that the
Suwannee moccasinshell's range and numbers have declined over time (see
``Distribution and Abundance'' discussion in the final listing rule).
For example, despite considerable survey effort, the species has not
been collected in the lower Suwannee River or Withlacoochee River
subbasins since the 1960s, and was last collected in the upper Santa Fe
River subbasin in 1996 (Johnson et al. 2016, p. 170). There has also
been a reduction in numbers, with fewer individuals encountered during
recent surveys than were collected historically (Johnson et al. 2016,
pp. 166, 170).
The Suwannee moccasinshell's reduced range and small population
size may increase its vulnerability to many threats. Aquatic species
with small ranges, few populations, and small or declining population
sizes are the most vulnerable to extinction (Primack 2008, p. 137; Haag
2012, p. 336). The effects of certain environmental pressures,
particularly habitat degradation and loss, catastrophic weather events,
and introduced species, are greater when population size is small
(Soul[eacute] 1980, pp. 33, 71; Primack 2008, pp. 133-137, 152).
Threats to the Suwannee moccasinshell are compounded by its reduced and
linear distribution, with nearly the entire population presently
distributed within the Suwannee River mainstem. A small population also
occurs in the lower Santa Fe River, however, only 5 recent collections
(3 of which are relic shell) have been reported in this subbasin
(Johnson et al. 2016, p. 171).
A larger population of Suwannee moccasinshell occurring over a wide
geographic area can have higher resilience. A large population is
better able to return to pre-disturbance numbers after stochastic
events, and also has increased availability of mates and reduced risk
of genetic drift and inbreeding depression. The minimum viable
population size needed to withstand stochastic events is not known for
mussels. However, for species with complex life histories like
freshwater mussels, maximizing the chances of persistence over the
long-term, likely requires a population of considerable size (Haag
2012, p. 371). Reestablishing viable populations in the Withlacoochee
and upper Santa Fe River subbasins increases Suwannee moccasinshell
resiliency by expanding its range into historically occupied areas,
potentially increasing population size, and providing refuge from
[[Page 65332]]
catastrophic events (for example, flooding and spills) in the Suwannee
River.
We determined the Withlacoochee and upper Santa Fe River subbasins
have the potential for future reoccupation by the species, provided
that stressors are managed and mitigated. These specific areas
encompass the minimum area of the species' historical range within the
proposed critical habitat designation, while still providing ecological
diversity so that the species has the ability to evolve and adapt over
time (representation) to ensure that the species has an adequate level
of redundancy to guard against future catastrophic events. These areas
also represent the stream reaches within the historical range with the
best potential for recovery of the species due to their current
conditions and likely suitability for reintroductions. Accordingly, we
propose to designate one unoccupied unit in the upper Santa Fe River
and one unoccupied unit in the Withlacoochee River. As described below
in the individual unit descriptions, each unit contains one or more of
the physical or biological features and are reasonably certain to
contribute to the conservation of the species.
General Information on the Maps of the Proposed Critical Habitat
Designation
The critical habitat streams were mapped with USGS National
Hydrography Dataset GIS data. The high-resolution 1:24,000 flowlines
were used to delineate the upstream and downstream boundaries of the
proposed critical habitat units and to calculate river kilometers and
miles, according to the criteria explained below. The downstream
boundary of a unit is the confluence of a named tributary stream or
spring, below the farthest downstream occurrence record. The upstream
boundary is the confluence of the first major tributary, road-crossing
bridge, or a permanent barrier to fish passage above the farthest
upstream occurrence record. The confluence of a large tributary
typically marks a significant change in the size of the stream and is a
logical and recognizable upstream terminus. Likewise, a dam or other
barrier to fish passage marks the upstream extent to which mussels may
disperse via their fish hosts. In the unit descriptions, distances
between landmarks marking the upstream or downstream extent of a stream
segment are given in river kilometers (km) and equivalent miles (mi),
as measured tracing the course of the stream, not straight-line
distance.
The areas proposed as critical habitat include only stream channels
within the ordinary high-water line. There are no developed areas
within the critical habitat boundaries except for transportation
crossings, which do not remove the suitability of these areas for this
species. The scale of the maps we prepared under the parameters for
publication within the Code of Federal Regulations may not reflect the
exclusion of such developed lands. Any such lands inadvertently left
inside critical habitat boundaries shown on the maps of this proposed
rule have been excluded by text in the proposed rule and are not
proposed for designation as critical habitat. Therefore, if the
critical habitat is finalized as proposed, a Federal action involving
these lands would not trigger section 7 consultation with respect to
critical habitat and the requirement of no adverse modification unless
the specific action would affect the physical or biological features in
the adjacent critical habitat.
The critical habitat designation is defined by the maps, as
modified by any accompanying regulatory text, presented at the end of
this document in the rule portion. We include more detailed information
on the boundaries of the critical habitat designation in the preamble
of this document. The coordinates on which each map is based are
provided in the critical habitat unit descriptions at the end of this
document, and are available at the Service's internet site, (http://
www.fws.gov/panamacity), (http://www.regulations.gov) at Docket No.
FWS-R4-ES-2019-0059, and at the field office responsible for this
designation (see FOR FURTHER INFORMATION CONTACT above).
Proposed Critical Habitat Designation
We are proposing to designate approximately 306 km (190 mi) of
stream channel in three units as critical habitat for the Suwannee
moccasinshell. The three units we propose as critical habitat are: Unit
1: Suwannee River, Unit 2: Upper Santa Fe River, and Unit 3:
Withlacoochee River. Overall, about 81 percent of critical habitat
proposed for the Suwannee moccasinshell is already designated as
critical habitat for either of two ESA-listed species: The oval pigtoe
(Pleurobema pyriforme) or Gulf sturgeon (Acipenser oxyrinchus desotoi).
Table 1 shows the proposed critical habitat units for the Suwannee
moccasinshell and ownership of riparian lands adjacent to the units.
Table 1--Proposed Critical Habitat Units for the Suwannee Moccasinshell
[Ownership of riparian lands adjacent to the units is given for each streambank in kilometers (km) and miles
(mi). Lengths greater than 10 kilometers are rounded to the nearest whole kilometer and mile]
----------------------------------------------------------------------------------------------------------------
Private km Unit length km
Bank (mi) State km (mi) County km (mi) (mi)
----------------------------------------------------------------------------------------------------------------
Unit 1: Suwannee River, FL...................... .............. .............. .............. 187 (116.2)
Right descending bank *..................... 133 (83) 51 (31) 3.1 (1.9) ..............
Left descending bank *...................... 133 (83) 53 (33) 1.5 (0.9) ..............
---------------------------------------------------------------
Total................................... 266 (165) 103 (64) 4.6 (2.9) ..............
Unit 2: Upper Santa Fe River, FL................ .............. .............. .............. 43 (26.7)
Right descending bank....................... 34 (21) 8.4 (5.2) 0.4 (0.3) ..............
Left descending bank........................ 26 (16) 13 (8) 3.6 (2.2) ..............
---------------------------------------------------------------
Total................................... 61 (38) 22 (13) 4 (2.5) ..............
Unit 3: Withlacoochee River, FL and GA.......... .............. .............. .............. 75.5 (46.9)
Right descending bank....................... 58 (36) 17 (11) 0 ..............
Left descending bank........................ 53 (33) 22 (14) 0 ..............
---------------------------------------------------------------
Total................................... 112 (69) 39 (25) 0 ..............
----------------------------------------------------------------------------------------------------------------
Note: Totals may not sum due to rounding.
* Right and left descending bank is that bank of a stream when facing in the direction of flow or downstream.
[[Page 65333]]
We present brief descriptions of all units, and reasons why they
meet the definition of critical habitat for the Suwannee moccasinshell,
below.
Unit 1: Suwannee River, Florida
Unit 1 consists of approximately 187 km (116 mi) of the Suwannee
River and lower Santa Fe River in Alachua, Columbia, Dixie, Gilchrist,
Lafayette, Madison, and Suwannee Counties, Florida. The unit includes
the Suwannee River mainstem from the confluence of Hart Springs (near
river kilometer 71) in Dixie-Gilchrist Counties, upstream 137 km (85
mi) to the confluence of the Withlacoochee River in Madison-Suwannee
Counties; and the Santa Fe River from its confluence with the Suwannee
River in Suwannee-Gilchrist Counties, upstream 50 km (31 mi) to the
river's rise in Alachua County. The Santa Fe River flows underground
for about 5 km (3.1 mi), ``sinking'' at O'Leno State Park and
``rising'' at River Rise Preserve State Park. The lower and upper
portions of the Santa Fe are intermittently connected during high flow
event. The riparian lands along stream reaches in this unit are
generally privately owned agricultural or silvicultural lands, or
State-owned or -managed conservation lands (Table 1). The Suwannee
moccasinshell occupies all stream reaches in this unit, which contains
most of the physical or biological features essential to the
conservation of the Suwannee moccasinshell. However, in the Santa Fe
River, flow levels have declined over time, and excessive sedimentation
and algae growth are a problem; therefore, physical or biological
features 1 and 3 are not consistently present in this portion of the
unit. Currently, 73 percent of Unit 1 is designated critical habitat
for the Gulf sturgeon (a migratory fish). Some small urban areas also
exist near the two rivers. Special management considerations and
protections that may be required to address threats within the unit
include: Minimizing ground and surface water withdrawals or other
actions that alter stream hydrology; reducing the use of fertilizers
and pesticides, especially in spring recharge areas and near stream
channels; improving treatment of wastewater discharged from permitted
facilities and the operation of those facilities; implementing
practices that protect or restore riparian buffer areas along stream
corridors; prohibiting the removal of pre-cut submerged timber
(deadhead logs); establishing and enforcing restrictions on boat speed
and length, especially in the lower Santa Fe River. Many of these
measures must also be implemented in areas upstream of the unit to
adequately protect habitat within the unit.
Unit 2: Upper Santa Fe River, Florida
Unit 2 consists of approximately 43 km (27 mi) of the Santa Fe
River and New River in Alachua, Bradford, Columbia, and Union Counties,
Florida. The unit includes the Santa Fe River from the river's sink in
Alachua County, upstream 36.5 km (23 mi) to the confluence of Rocky
Creek in Bradford-Alachua Counties; and the New River from its
confluence with the Santa Fe River, upstream 6.5 km (4 mi) to the
confluence of Five Mile Creek in Union-Bradford Counties. Unit 2 is
within the historical range of the Suwannee moccasinshell but is not
currently occupied by the species. The riparian lands along stream
channels in this unit are generally privately owned agricultural or
silvicultural lands, or are State-owned or -managed conservation lands
(Table 1). All of Unit 2 is already designated critical habitat for the
oval pigtoe (a freshwater mussel). The Suwannee moccasinshell was
routinely represented in historical collections in the upper Santa Fe
subbasin, however, it is the only mussel species not detected in
contemporary surveys. Currently, the unit supports a diverse mussel
fauna, including several species that ordinarily co-occur with the
Suwannee moccasinshell. This unit has at least one of the physical or
biological features essential to the conservation of the species and we
are reasonably certain that this area will contribute to the
conservation of the species. Our specific rationale for this unit can
be found below.
This area is essential to the conservation of the species because
it would improve the resiliency and redundancy of the species, which is
necessary to conserve and recover the Suwannee moccasinshell. For
species resiliency and redundancy, it is important to reestablish
Suwannee moccasinshell populations in Unit 2. Presently, nearly the
entire population is linearly distributed within the mainstem Suwannee
River and vulnerable to catastrophic events (for example, contaminant
spills or severe floods) as well as to random fluctuations in
population size or environmental conditions (Haag and Williams 2014, p.
48). Reestablishing viable populations in the Santa Fe River subbasin
would reduce its extinction risk by expanding its current range into
areas beyond the mainstem by providing connectivity to already occupied
areas, space for growth and population expansion in portions of
historical habitat, and refugia areas from threats in the Suwannee
River mainstem.
Although it is considered unoccupied, portions of this unit contain
some or all of the physical or biological features essential for the
conservation of the species. Unit 2 possesses those characteristics as
described by physical or biological features 1 and 2 and stable stream
channels and suitable substrates are present throughout much of the
unit. Unit 2 retains the features of a natural stream channel and
presently supports a diverse mussel fauna, including several mussel
species that ordinarily co-occur with the Suwannee moccasinshell. Both
fish species found to serve as larval hosts for the Suwannee
moccasinshell occur within the unit (Robins et al. 2018, pp. 317, 336).
Physical or biological features 3 and 4 are degraded in the unit
during some times of the year. Flow levels in the upper Santa Fe River
have declined over time, and the river has ceased to flow multiple
times since 2000 (Johnson et al. 2016, p. 170). An important effect of
reduced flows is altered water quality, especially depressed dissolved
oxygen levels and elevated water temperatures (discussed above under
``Physical or Biological Features''). In 2007, the SRWMD developed
minimum flow levels to establish flows protective of ``fish and
wildlife habitats and the passage of fish'' in the upper Santa Fe River
(SRWMD 2007, entire). The restoration of natural flow levels is a
complex issue that will require considerable involvement and
collaboration of Federal, State, and local governments and private
landowners to implement projects that reduce groundwater pumping in
order to recover aquifer levels and sustain base flows in the upper
Santa Fe River subbasin. However, if implemented, water management
strategies would improve physical or biological features 3 and 4.
The need for conservation efforts is recognized by our conservation
partners, and methods for restoring and reintroducing the species into
unoccupied habitat are being developed. The Florida Fish and Wildlife
Conservation Commission has expressed support for including this area
in a critical habitat designation (Florida Fish and Wildlife
Conservation Commission 2019). Accordingly, we are reasonably certain
this unit will contribute to the conservation of the species.
Unit 3: Withlacoochee River, Georgia and Florida
Unit 3 consists of approximately 75.5 km (47 mi) of the
Withlacoochee River
[[Page 65334]]
in Madison and Hamilton Counties, Florida, and Brooks and Lowndes
Counties, Georgia. The unit includes the Withlacoochee River from its
confluence with the Suwannee River in Madison-Hamilton Counties, FL,
upstream 75.5 km (47 mi) to the confluence of Okapilco Creek in Brooks-
Lowndes Counties, GA. Unit 3 is within the historical range of the
Suwannee moccasinshell but is not currently occupied by the species.
The riparian lands along stream channels in this unit are generally
agricultural or silvicultural lands (Table 1). Upstream of the unit,
urban areas associated with the City of Valdosta, GA are present near
the Withlacoochee River. Twenty-five percent of Unit 3 is already
designated critical habitat for the Gulf sturgeon. Currently, the unit
supports a diverse mussel fauna, however, the Suwannee moccasinshell is
the only species not detected in contemporary surveys. This unit has at
least one of the physical or biological features essential to the
conservation of the species and we are reasonably certain that this
area will contribute to the conservation of the species. Our specific
rationale for this unit can be found below.
This area is essential to the conservation of the species because
it would improve the resiliency and redundancy of the species, which is
necessary to conserve and recover the Suwannee moccasinshell. For
species resiliency and redundancy, it is important to reestablish
Suwannee moccasinshell populations in Unit 3. Presently, nearly the
entire population is linearly distributed within the mainstem Suwannee
River and vulnerable to catastrophic events (for example, contaminant
spills or severe floods) as well as to random fluctuations in
population size or environmental conditions (Haag and Williams 2014, p.
48). Reestablishing viable populations in the Withlacoochee River
subbasin would reduce its extinction risk by expanding its current
range into areas beyond the mainstem by providing connectivity to
already occupied areas, space for growth and population expansion in
portions of historical habitat, and refugia areas from threats in the
Suwannee River mainstem.
Although it is considered unoccupied, portions of this unit contain
some or all of the physical or biological features essential for the
conservation of the species. Unit 3 possesses those characteristics as
described by physical or biological features 1 and 2, and long reaches
of stable stream channel with suitable substrates are present within
the unit. Unit 3 retains the features of a natural stream channel and
supports a diverse mussel fauna, including several mussel species that
ordinarily co-occur with the Suwannee moccasinshell. Both fish species
found to serve as larval hosts for the Suwannee moccasinshell occur
within the unit (Robins et al. 2018, pp. 317, 336). Therefore, we
believe the unit has the potential to support the species' life-history
functions.
Physical or biological feature 4 is in degraded condition, and
pollution may have contributed to the Suwannee moccasinshell's decline
in Unit 3. The domestic wastewater treatment plant for the city of
Valdosta, GA is approximately 14 river miles upstream of the unit, and
has a history of untreated sewage releases to the Withlacoochee River
after heavy rain events. However, major renovations to the city's sewer
system were completed in June 2016 with the construction of a new
treatment plant. Additional projects to address continued problems with
sewage spills are ongoing, and the construction of a large retention
basin is planned. If these improvements are realized, water quality
could be restored to levels necessary to support the species.
The need for conservation efforts is recognized by our conservation
partners, and methods for restoring and reintroducing the species into
unoccupied habitat are being developed. The Florida Fish and Wildlife
Conservation Commission and Georgia Department of Natural Resources
have expressed support for including this area in a critical habitat
designation (Florida Fish and Wildlife Conservation Commission 2019;
Georgia Department of Natural Resources 2018). Accordingly, we are
reasonably certain this unit will contribute to the conservation of the
species.
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that any action they fund, authorize, or carry out
is not likely to jeopardize the continued existence of any endangered
species or threatened species or result in the destruction or adverse
modification of designated critical habitat of such species. In
addition, section 7(a)(4) of the Act requires Federal agencies to
confer with the Service on any agency action that is likely to
jeopardize the continued existence of any species proposed to be listed
under the Act or result in the destruction or adverse modification of
proposed critical habitat.
We published a final regulation with a revised definition of
destruction or adverse modification on August 27, 2019 (84 FR 44976).
Destruction or adverse modification means a direct or indirect
alteration that appreciably diminishes the value of critical habitat as
a whole for the conservation of a listed species.
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. Examples of actions that are subject to the
section 7 consultation process are actions on State, tribal, local, or
private lands that require a Federal permit (such as a permit from the
U.S. Army Corps of Engineers under section 404 of the CWA or a permit
from the Service under section 10 of the Act) or that involve some
other Federal action (such as funding from the Federal Highway
Administration, Federal Aviation Administration, or the Federal
Emergency Management Agency). Federal actions not affecting listed
species or critical habitat, and actions on State, tribal, local, or
private lands that are not federally funded, or authorized or carried
out by a Federal agency, do not require section 7 consultation.
Compliance with the requirements of section 7(a)(2), is documented
through our 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 jeopardize the continued existence of a listed species and/or
destroy or adversely modify critical habitat, we provide reasonable and
prudent alternatives to the project, if any are identifiable, that
would avoid the likelihood of jeopardy and/or destruction or adverse
modification of critical habitat. We define ``reasonable and prudent
alternatives'' (at 50 CFR 402.02) as alternative actions identified
during consultation that:
(1) Can be implemented in a manner consistent with the intended
purpose of the action,
(2) Can be implemented consistent with the scope of the Federal
agency's legal authority and jurisdiction,
(3) Are economically and technologically feasible, and
(4) Would, in the Director's opinion, avoid the likelihood of
jeopardizing the continued existence of the listed species
[[Page 65335]]
and/or avoid the likelihood of destroying or adversely modifying
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 we have
listed a new species or subsequently designated critical habitat that
may be affected and the Federal agency has retained discretionary
involvement or control over the action (or the agency's discretionary
involvement or control is authorized by law). Consequently, Federal
agencies sometimes may need to request reinitiation of consultation
with us on actions for which formal consultation has been completed, if
those actions with discretionary involvement or control may affect
subsequently listed species or designated critical habitat. The
regulations also specify some exceptions to this requirement for
specific land management plans. See the regulations for a description
of those exceptions.
Overall, about 81 percent of critical habitat proposed for the
Suwannee moccasinshell is already designated as critical habitat for
either the oval pigtoe or Gulf sturgeon. For Federal actions within
areas already designated as critical habitat for these species,
conservation measures we would recommend for the Suwannee moccasinshell
are likely to be the same or very similar to those we already recommend
for the oval pigtoe and Gulf sturgeon. New additional conservation
measures will, however, likely be needed within that portion of Unit 3
that is unoccupied by the Suwannee moccasinshell but not currently
designated critical habitat for the Gulf sturgeon.
Application of the ``Destruction or Adverse Modification'' Standard
The key factor related to the destruction or adverse modification
determination is whether, with implementation of the proposed Federal
action, the critical habitat affected by the action is altered in way
that appreciably diminishes the value of the designated critical
habitat as a whole for the conservation of the listed species. As
discussed above, the role of critical habitat is to support the
physical or biological features essential to the conservation of a
listed species and provide for the conservation of the species.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe, in any proposed or final regulation that designates critical
habitat, activities involving a Federal action that may violate section
7(a)(2) of the Act by destroying or adversely modifying such habitat,
or that may be affected by such designation.
Activities that may be found likely to destroy or adversely modify
critical habitat under 7(a)(2) of the Act include, but are not limited
to:
(1) Actions that would introduce contaminants or alter water
chemistry or temperature. Such activities could include, but are not
limited to, release of chemical or biological pollutants, or heated
effluents into the surface water or connected groundwater at a point
source or by dispersed release (nonpoint source). These activities
could alter water quality conditions to levels that are beyond the
tolerances of the mussel or its fish host.
(2) Actions that would reduce flow levels or alter flow regimes.
This could include, but are not limited to, activities that lower
groundwater levels including groundwater pumping and surface water
withdrawal or diversion. These activities can result in long-term
reduced stream flows, which may cause channels to stop flowing or dry
up; and also may decrease oxygen levels, elevate water temperatures,
degrade water quality, and cause sediments to accumulate. These
activities could alter flow levels beyond the tolerances of the mussel
or its fish host.
(3) Actions that would significantly increase the filamentous algal
community within the stream channel. Such activities could include, but
are not limited to, release of nutrients into the surface water or
connected groundwater at a point source or by dispersed release
(nonpoint source). These activities can result in excessive filamentous
algae filling streams and reducing habitat for the mussel and its fish
host, degrading water quality during their decay, and decreasing oxygen
levels at night from their respiration. Thick algal mats can also
entrain young mussels and prevent juveniles from settling into the
sediment. These activities could degrade the habitat and reduce oxygen
levels below the tolerances of the mussel or its fish host.
(4) Actions that would significantly alter channel morphology or
cause channel instability. Such activities could include but are not
limited to channelization, impoundment, road and bridge construction,
mining, dredging, destruction of riparian vegetation, and land
clearing. These activities may lead to changes in flow regimes, erosion
of the streambed and banks, and excessive sedimentation that could
degrade the habitat of the mussel or its fish host.
(5) Actions that would cause significant amounts of sediments to
enter the stream channel. Such activities could include, but are not
limited to livestock grazing, road and bridge construction, channel
alteration, timber harvest, commercial and residential development, and
other watershed and floodplain disturbances. These activities could
eliminate or degrade the habitat necessary for the growth and
reproduction of the mussel or its fish host.
Exemptions
Application of Section 4(a)(3) of the Act
Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i))
provides that: ``The Secretary shall not designate as critical habitat
any lands or other geographic areas owned or controlled by the
Department of Defense, or designated for its use, that are subject to
an integrated natural resources management plan [INRMP] prepared under
section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary
determines in writing that such plan provides a benefit to the species
for which critical habitat is proposed for designation.'' There are no
Department of Defense lands with a completed INRMP within the proposed
critical habitat designation.
Consideration of Impacts Under Section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that the Secretary shall
designate and make revisions to critical habitat 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 statute on its face, as well
as the legislative history, are clear that the Secretary has broad
discretion regarding which factor(s) to use and how much weight to give
to any factor.
When considering the benefits of exclusion, we consider, among
other
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things, whether exclusion of a specific area is likely to result in
conservation; the continuation, strengthening, or encouragement of
partnerships; or implementation of a management plan. In the case of
the Suwannee moccasinshell, the benefits of critical habitat include
public awareness of the presence of the species and the importance of
habitat protection, and, where a Federal nexus exists, increased
habitat protection for the Suwannee moccasinshell due to protection
from adverse modification or destruction of critical habitat. In
practice, situations with a Federal nexus exist primarily on Federal
lands or for projects undertaken by Federal agencies. Additionally,
continued implementation of an ongoing management plan that provides
equal to or more conservation than a critical habitat designation would
reduce the benefits of including that specific area in the critical
habitat designation.
We have not considered any areas for exclusion from critical
habitat. However, the final decision on whether to exclude any areas
will be based on the best scientific data available at the time of the
final designation, including information obtained during the comment
period and information about the economic impact of designation.
Accordingly, we have prepared a draft economic analysis concerning the
proposed critical habitat designation, which is available for review
and comment (see ADDRESSES).
Consideration of Economic Impacts
Section 4(b)(2) of the Act and its implementing regulations require
that we consider the economic impact that may result from a designation
of critical habitat. To assess the probable economic impacts of a
designation, we must first evaluate specific land uses or activities
and projects that may occur in the area of the critical habitat. We
then must evaluate the impacts that a specific critical habitat
designation may have on restricting or modifying specific land uses or
activities for the benefit of the species and its habitat within the
areas proposed. We then identify which conservation efforts may be the
result of the species being listed under the Act versus those
attributed solely to the designation of critical habitat for this
particular species. The probable economic impact of a proposed critical
habitat designation is analyzed by comparing scenarios both ``with
critical habitat'' and ``without critical habitat.'' The ``without
critical habitat'' scenario represents the baseline for the analysis,
which includes the existing regulatory and socio-economic burden
imposed on landowners, managers, or other resource users potentially
affected by the designation of critical habitat (e.g., under the
Federal listing as well as other Federal, State, and local
regulations). The baseline, therefore, represents the costs of all
efforts attributable to the listing of the species under the Act (i.e.,
conservation of the species and its habitat incurred regardless of
whether critical habitat is designated). The ``with critical habitat''
scenario describes the incremental impacts associated specifically with
the designation of critical habitat for the species. The incremental
conservation efforts and associated impacts would not be expected
without the designation of critical habitat for the species. In other
words, the incremental costs are those attributable solely to the
designation of critical habitat, above and beyond the baseline costs.
These are the costs we use when evaluating the benefits of inclusion
and exclusion of particular areas from the final designation of
critical habitat should we choose to conduct an optional section
4(b)(2) exclusion analysis.
For this designation, we developed an incremental effects
memorandum (IEM) considering the probable incremental economic impacts
that may result from this proposed designation of critical habitat. The
information contained in our IEM was then used to develop a screening
analysis of the probable effects of the designation (Industrial
Economics 2017). The purpose of the screening analysis is to filter out
the geographic areas in which the critical habitat designation is
unlikely to result in probable incremental economic impacts. In
particular, the screening analysis considers baseline costs (i.e.,
absent critical habitat designation) and includes probable economic
impacts where land and water use may be subject to conservation plans,
land management plans, best management practices, or regulations that
protect the habitat area as a result of the Federal listing status of
the species. The screening analysis filters out particular areas of
critical habitat that are already subject to such protections and are,
therefore, unlikely to incur incremental economic impacts. Ultimately,
the screening analysis allows us to focus our analysis on evaluating
the specific areas or sectors that may incur probable incremental
economic impacts as a result of the designation. The screening analysis
also assesses whether units unoccupied by the species may require
additional management or conservation efforts as a result of the
critical habitat designation, and thus may incur incremental economic
impacts. This screening analysis, combined with the information
contained in our IEM, constitute our draft economic analysis (DEA) of
the proposed critical habitat designation for the Suwannee
moccasinshell and is summarized in the narrative below.
Executive Orders 12866 and 13563 direct Federal agencies to assess
the costs and benefits of available regulatory alternatives in
quantitative (to the extent feasible) and qualitative terms. Consistent
with the E.O. regulatory analysis requirements, our effects analysis
under the Act may take into consideration impacts to both directly and
indirectly affected entities, where practicable and reasonable. If
sufficient data are available, we assess to the extent practicable the
probable impacts to both directly and indirectly affected entities. As
part of our screening analysis, we considered the types of economic
activities that are likely to occur within the areas likely affected by
the critical habitat designation. In our evaluation of the probable
incremental economic impacts that may result from the proposed
designation of critical habitat for the Suwannee moccasinshell, first
we identified, in the IEM dated June 30, 2016, probable incremental
economic impacts associated with the following categories of
activities: (1) Groundwater pumping; (2) agriculture; (3) mining; (4)
grazing; (5) discharge of chemical pollutants; (6) roadway and bridge
construction; (7) in-stream dams and diversions; (8) dredging; (9)
commercial or residential development; (10) timber harvest; and (11)
removal of large in-channel logs. We considered each industry or
category individually. Additionally, we considered whether these
activities would have any Federal involvement.
Critical habitat designation generally will not affect activities
that do not have any Federal involvement; under the ESA, the
designation of critical habitat only affects activities conducted,
funded, permitted, or authorized by Federal agencies. In areas where
the Suwannee moccasinshell is present, Federal agencies already are
required to consult with the Service under section 7 of the Act on
activities they fund, permit, or implement that may affect the species.
If we finalize this proposed critical habitat designation,
consultations to avoid the destruction or adverse modification of
critical habitat would be incorporated into the existing consultation
process.
In our IEM, we attempted to clarify the distinction between the
effects that will result from the species being listed and those
attributable to the critical
[[Page 65337]]
habitat designation (i.e., difference between the jeopardy and adverse
modification standards) for the Suwannee moccasinshell's critical
habitat. The following specific circumstances in this case help to
inform our evaluation: (1) The physical or biological features
identified for occupied critical habitat are the same features
essential for the life requisites of the species and (2) any actions
that would result in sufficient harm or harassment to constitute
jeopardy to the Suwannee moccasinshell would also likely adversely
affect the essential physical or biological features of occupied
critical habitat. The IEM outlines our rationale concerning this
limited distinction between baseline conservation efforts and
incremental impacts of the designation of critical habitat for this
species.
The proposed critical habitat designation for the Suwannee
moccasinshell totals approximately 306 kilometers (190 miles) of stream
channels in three units. The riparian lands adjacent to critical
habitat are under private (72 percent), State (27 percent), and county
(1 percent) ownership. Unit 1 is the only occupied unit and is 61
percent of the total proposed critical habitat designation. As
discussed above, in this occupied area, any actions that may affect the
species or its habitat would also affect designated critical habitat
and it is unlikely that any additional conservation efforts would be
recommended to address the adverse modification standard over and above
those recommended as necessary to avoid jeopardizing the continued
existence of the Suwannee moccasinshell. Therefore, only administrative
costs are expected in actions affecting this unit. While this
additional analysis will require time and resources by both the Federal
action agency and the Service, it is believed that, in most
circumstances, these costs, because they are predominantly
administrative in nature, would not be significant.
Units 2 and 3 are currently unoccupied by the species but are
essential for the conservation of the species. These units total 119 km
(78 mi) and comprise 39 percent of the total proposed critical habitat
designation. In these unoccupied areas, any conservation efforts or
associated probable impacts would be considered incremental effects
attributed to the critical habitat designation.
The screening analysis finds that the total annual incremental
costs of critical habitat designation for the Suwannee moccasinshell
are anticipated to be less than $100,000 per year. The highest costs
are anticipated in Unit 3 because it is unoccupied by the species and
is not already designated critical habitat for another mussel species
(for comparison, see discussion for Unit 2 below). In this unit, the
designation is anticipated to result in a small number of additional
section 7 consultations (approximately three per year), primarily
related to planned transportation projects that intersect the unit.
Anticipated project modifications may include minimizing the extent of
in-channel maintenance activities, relocation of discharge outfalls, or
requiring strict adherence of water quality and habitat protections.
Total annual costs to the Service and action agencies for consultations
and project modifications in Unit 3 are anticipated to be less than
$80,000 annually (Industrial Economics 2017, pp. 9-12).
In Units 1 and 2, the economic costs of implementing the rule will
most likely be limited to additional administrative efforts by the
Service and action agencies to consider adverse modification. Unit 1 is
occupied by the Suwannee moccasinshell, and conservation actions taken
in order to be protective of the species would also be sufficient to
protect its critical habitat. Unit 2 is also designated as critical
habitat for the oval pigtoe, a freshwater mussel with nearly identical
physical or biological features to the Suwannee moccasinshell.
Conservation efforts taken to protect oval pigtoe critical habitat
would also be sufficient to protect Suwannee moccasinshell critical
habitat. Thus, additional project modifications are not anticipated in
Units 1 and 2. In total, up to six section 7 consultations per year are
anticipated to occur in Units 1 and 2, with total costs of less than
$20,000 annually (Industrial Economics 2017, pp. 7-9).
Exclusions
Exclusions Based on Economic Impacts
We are soliciting data and comments from the public on the DEA
discussed above, as well as all aspects of the proposed rule. During
the development of a final designation, we will consider the
information presented in the DEA and any additional information on
economic impacts received through the public comment period to
determine whether any specific areas should be excluded from the final
critical habitat designation under authority of section 4(b)(2) and our
implementing regulations at 50 CFR 424.19.
Exclusions Based on National Security Impacts
In preparing this proposal, we have determined that none of the
lands within the proposed designation of critical habitat for the
Suwannee moccasinshell are owned or managed by the Department of
Defense or Department of Homeland Security, and, therefore, we
anticipate no impact on national security or homeland security.
However, during the development of a final designation we will consider
any additional information received through the public comment period
on the impacts of the proposed designation on national security or
homeland security to determine whether any specific areas should be
excluded from the final critical habitat designation under authority of
section 4(b)(2) and our implementing regulations at 50 CFR 424.19.
Exclusions Based on Other Relevant Impacts
Under section 4(b)(2) of the Act, we consider any other relevant
impacts, in addition to economic impacts and impacts on national
security. We consider a number of factors, including whether the
landowners have developed any HCPs or other management plans for the
area, or whether there are conservation partnerships that would be
encouraged by designation of, or exclusion from, critical habitat. In
addition, we look at any tribal issues, and consider the government-to-
government relationship of the United States with tribal entities. We
also consider any social impacts that might occur because of the
designation.
In preparing this proposal, we have determined that there are
currently no HCPs or other management plans for the Suwannee
moccasinshell, and the proposed designation does not include any tribal
lands or trust resources. Therefore, we anticipate no impact on tribal
lands, partnerships, or HCPs from this proposed critical habitat
designation. During the development of a final designation, we will
consider any additional information received through the public comment
period regarding other relevant impacts to determine whether any
specific areas should be excluded from the final critical habitat
designation under authority of section 4(b)(2) and our implementing
regulations at 50 CFR 424.19.
Peer Review
In accordance with our joint policy on peer review published in the
Federal Register on July 1, 1994 (59 FR 34270), we will seek the expert
opinions of at
[[Page 65338]]
least three appropriate and independent specialists regarding this
proposed rule. The purpose of peer review is to ensure that our
critical habitat designation is based on scientifically sound data and
analyses. We have invited these peer reviewers to comment during this
public comment period.
Public Hearings
Section 4(b)(5) of the Act provides for one or more public hearings
on this proposal, if requested. Requests must be received within 45
days after the date of publication of this proposed rule in the Federal
Register. Such requests must be sent to the address shown in ADDRESSES.
We will schedule public hearings on this proposal, if any are
requested, and announce the dates, times, and places of those hearings,
as well as how to obtain reasonable accommodations, in the Federal
Register and local newspapers at least 15 days before the hearing.
Required Determinations
Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive Order (E.O.) 12866 provides that the Office of
Information and Regulatory Affairs (OIRA) in the Office of Management
and Budget (OMB) will review all significant rules. The Office of
Information and Regulatory Affairs has determined that this rule is not
significant.
E.O. 13563 reaffirms the principles of E.O. 12866 while calling for
improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The executive order directs agencies to consider regulatory approaches
that reduce burdens and maintain flexibility and freedom of choice for
the public where these approaches are relevant, feasible, and
consistent with regulatory objectives. E.O. 13563 emphasizes further
that regulations must be based on the best available science and that
the rulemaking process must allow for public participation and an open
exchange of ideas. We have developed this rule in a manner consistent
with these requirements.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.),
as amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA; 5 U.S.C. 801 et seq.), 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
(i.e., 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 RFA to require Federal agencies to provide a
certification statement of the factual basis for certifying that the
rule will not have a significant economic impact on a substantial
number of small entities.
According to the Small Business Administration, small entities
include small organizations such as independent nonprofit
organizations; small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents; and small businesses (13 CFR 121.201). Small businesses
include manufacturing and mining concerns with fewer than 500
employees, wholesale trade entities with fewer than 100 employees,
retail and service businesses with less than $5 million in annual
sales, general and heavy construction businesses with less than $27.5
million in annual business, special trade contractors doing less than
$11.5 million in annual business, and agricultural businesses with
annual sales less than $750,000. To determine if potential economic
impacts to these small entities are significant, we considered the
types of activities that might trigger regulatory impacts under this
designation as well as types of project modifications that may result.
In general, the term ``significant economic impact'' is meant to apply
to a typical small business firm's business operations.
The Service's current understanding of the requirements under the
RFA, as amended, and following recent court decisions, is that Federal
agencies are only required to evaluate the potential incremental
impacts of rulemaking on those entities directly regulated by the
rulemaking itself and, therefore, not required to evaluate the
potential impacts to indirectly regulated entities. The regulatory
mechanism through which critical habitat protections are realized is
section 7 of the Act, which requires Federal agencies, in consultation
with the Service, to ensure that any action authorized, funded, or
carried out by the Agency is not likely to destroy or adversely modify
critical habitat. Therefore, under section 7, only Federal action
agencies are directly subject to the specific regulatory requirement
(avoiding destruction and adverse modification) imposed by critical
habitat designation. Consequently, it is our position that only Federal
action agencies will be directly regulated by this designation.
Moreover, Federal agencies are not small entities. Therefore, because
no small entities are directly regulated by this rulemaking, the
Service certifies that, if promulgated, the proposed critical habitat
designation will not have a significant economic impact on a
substantial number of small entities.
In summary, we have considered whether the proposed designation
would result in a significant economic impact on a substantial number
of small entities. For the above reasons and based on currently
available information, we certify that, if promulgated, the proposed
critical habitat designation would not have a significant economic
impact on a substantial number of small business entities. Therefore,
an initial regulatory flexibility analysis is not required.
Energy Supply, Distribution, or Use--Executive Order 13211
Executive Order 13211 (Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use) requires
agencies to prepare Statements of Energy Effects when undertaking
certain actions. In our economic analysis, we did not find that the
designation of this proposed critical habitat will significantly affect
energy supplies, distribution, or use. Therefore, this action is not a
significant energy action, and no Statement of Energy Effects is
required. We will further evaluate this issue if relevant comments are
received during the comment period.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following findings:
(1) 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
[[Page 65339]]
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; Aid to Families
with Dependent Children 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 onto State governments.
(2) We do not believe that this rule would significantly or
uniquely affect small governments because it will not produce a Federal
mandate of $100 million or greater in any year, that is, it is not a
``significant regulatory action'' under the Unfunded Mandates Reform
Act. The designation of critical habitat imposes no obligations on
State or local governments and, as such, a Small Government Agency Plan
is not required.
Takings--Executive Order 12630
In accordance with E.O. 12630 (Government Actions and Interference
with Constitutionally Protected Private Property Rights), we have
analyzed the potential takings implications of designating critical
habitat for the Suwannee moccasinshell in a takings implications
assessment. The Act does not authorize the Service to regulate private
actions on private lands or confiscate private property as a result of
critical habitat designation. Designation of critical habitat does not
affect land ownership, or establish any closures, or restrictions on
use of or access to the designated areas. Furthermore, the designation
of critical habitat does not affect landowner actions that do not
require Federal funding or permits, nor does it preclude development of
habitat conservation programs or issuance of incidental take permits to
permit actions that do require Federal funding or permits to go
forward. However, Federal agencies are prohibited from carrying out,
funding, or authorizing actions that would destroy or adversely modify
critical habitat. A takings implications assessment has been completed
and concludes that this designation of critical habitat for Suwannee
moccasinshell does not pose significant takings implications for lands
within or affected by the designation.
Federalism--Executive Order 13132
In accordance with E.O. 13132 (Federalism), this proposed 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 Florida and Georgia. From a
federalism perspective, the designation of critical habitat directly
affects only the responsibilities of Federal agencies. The Act imposes
no other duties with respect to critical habitat, either for States and
local governments, or for anyone else. As a result, the rule does not
have substantial direct effects either on the States, or on the
relationship between the national government and the States, or on the
distribution of powers and responsibilities among the various levels of
government. The designation may have some benefit to these governments
because the areas that contain the features essential to the
conservation of the species are more clearly defined, and the physical
or biological features of the habitat necessary to the conservation of
the species are specifically identified. This information does not
alter where and what federally sponsored activities may occur. However,
it may assist these local governments in long-range planning (because
these local governments no longer have to wait for case-by-case section
7 consultations to occur).
Where State and local governments require approval or authorization
from a Federal agency for actions that may affect critical habitat,
consultation under section 7(a)(2) would be required. 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.
Civil Justice Reform--Executive Order 12988
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 that it meets the requirements of
sections 3(a) and 3(b)(2) of the Order. We have proposed designating
critical habitat in accordance with the provisions of the Act. To
assist the public in understanding the habitat needs of the species,
the rule identifies the elements of physical or biological features
essential to the conservation of the species. The designated areas of
critical habitat are presented on maps, and the rule provides several
options for the interested public to obtain more detailed location
information, if desired.
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 of 1995 (44
U.S.C. 3501 et seq.). 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.
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
It is our position that, outside the jurisdiction of the U.S. Court
of Appeals for the Tenth Circuit, we do not need to prepare
environmental analyses pursuant to the National Environmental Policy
Act in connection with designating critical habitat under the Act. We
published a notice outlining
[[Page 65340]]
our reasons for this determination in the Federal Register on October
25, 1983 (48 FR 49244). This position was upheld by the U.S. Court of
Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495
(9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)).
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 (Consultation and
Coordination With Indian Tribal Governments), and the Department of the
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.
As stated above (see Exclusions Based on Other Relevant Impacts,
above), we have determined that no tribal lands or interests are
affected by this proposed designation.
Clarity of the Rule
We are required by Executive Orders 12866 and 12988 and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in ADDRESSES. To better help us
revise the rule, your comments should be as specific as possible. For
example, you should tell us the numbers of the sections or paragraphs
that are unclearly written, which sections or sentences are too long,
the sections where you feel lists or tables would be useful, etc.
References Cited
A complete list of references cited in this rulemaking is available
on the internet at http://www.regulations.gov and upon request from the
Panama City Ecological Services Field Office (see FOR FURTHER
INFORMATION CONTACT).
Authors
The primary authors of this proposed rulemaking are the staff
members of the Panama City 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--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245; unless
otherwise noted.
0
2. In Sec. 17.11(h), revise the entry for ``Moccasinshell, Suwannee''
under ``CLAMS'' in the List of Endangered and Threatened Wildlife to
read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
----------------------------------------------------------------------------------------------------------------
Listing citations and
Common name Scientific name Where listed Status applicable rules
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Clams
* * * * * * *
Moccasinshell, Suwannee......... Medionidus walkeri Wherever found.... T 81 FR 69417, 10/6/2016;
50 CFR 17.95(f).\CH\
* * * * * * *
----------------------------------------------------------------------------------------------------------------
0
3. In Sec. 17.95, amend paragraph (f) by adding an entry for
``Suwannee moccasinshell (Medionidus walkeri),'' in the same
alphabetical order that the species appears in the table at Sec.
17.11(h), to read as follows:
Sec. 17.95 Critical habitat--fish and wildlife.
* * * * *
(f) Clams and Snails.
* * * * *
Suwannee Moccasinshell (Medionidus walkeri)
(1) Critical habitat units are depicted on the maps below for
Alachua, Bradford, Columbia, Dixie, Gilchrist, Hamilton, Lafayette,
Madison, Suwannee, and Union Counties, Florida; and Brooks and Lowndes
Counties, Georgia.
(2) Within these areas, the physical or biological features
essential to the conservation of Suwannee moccasinshell consist of the
following components:
(i) Geomorphically stable stream channels (channels that maintain
lateral dimensions, longitudinal profiles, and sinuosity patterns over
time without an aggrading or degrading bed elevation).
(ii) Stable substrates of muddy sand or mixtures of sand and
gravel, and with little to no accumulation of unconsolidated sediments
and low amounts of filamentous algae.
(iii) A natural hydrologic flow regime (magnitude, frequency,
duration, and seasonality of discharge over time) necessary to maintain
benthic habitats where the species is found, and connectivity of stream
channels with the floodplain, allowing the exchange of nutrients and
sediment for habitat maintenance, food availability, and spawning
habitat for native fishes.
(iv) Water quality conditions needed to sustain healthy Suwannee
moccasinshell populations, including low pollutant levels (not less
than State criteria), a natural temperature regime, pH (between 6.0 to
8.5), adequate oxygen content (not less than State criteria), hardness,
turbidity, and other
[[Page 65341]]
chemical characteristics necessary for normal behavior, growth, and
viability of all life stages.
(v) The presence of fish hosts necessary for recruitment of the
Suwannee moccasinshell. The presence of blackbanded darters (Percina
nigrofasciata) and brown darters (Etheostoma edwini) will serve as an
indication of fish host presence.
(3) Critical habitat does not include manmade structures (such as
buildings, aqueducts, dams, roads, and other paved areas) and the land
on which they are located existing within the legal boundaries on
[EFFECTIVE DATE OF THE FINAL RULE].
(4) Critical habitat map units. Data layers defining map units were
created with USGS National Hydrography Dataset GIS data. The high-
resolution 1:24,000 flowlines were used to calculate river kilometers
and miles. ESRIs ArcGIS 10.2.2 software was used to determine longitude
and latitude coordinates using decimal degrees. The projection used in
mapping all units was Universal Transverse Mercator, NAD 83, Zone 16
North. The maps in this entry, as modified by any accompanying
regulatory text, establish the boundaries of the critical habitat
designation. The coordinates on which each map is based are provided in
the critical habitat unit descriptions and are available at the
Service's internet site, (http://www.fws.gov/panamacity), (http://www.regulations.gov) at Docket No. FWS-R4-ES-2019-0059, and at the
field office responsible for this designation. You may obtain field
office location by contacting one of the Service regional offices, the
addresses of which are listed at 50 CFR 2.2.
(5) Note: Index map of critical habitat units for the Suwannee
moccasinshell in Florida and Georgia follows:
BILLING CODE 4333-15-P
[[Page 65342]]
[GRAPHIC] [TIFF OMITTED] TP27NO19.000
(6) Unit 1: Suwannee River in Alachua, Columbia, Dixie, Gilchrist,
Lafayette, Madison, and Suwannee Counties, Florida.
(i) General description: Unit 1 consists of approximately 187
kilometers (km) (116 miles (mi)) of the Suwannee River and lower Santa
Fe River in Alachua, Columbia, Dixie, Gilchrist, Lafayette, Madison,
and Suwannee Counties, Florida. The unit includes the Suwannee River
mainstem from the confluence of Hart Springs (-82.954, 29.676) in
Dixie-Gilchrist Counties, upstream 137 km (85 mi) to the confluence of
the Withlacoochee River (-83.171, 30.385) in Madison-Suwannee Counties;
and the Santa Fe River from its confluence with the Suwannee River in
Suwannee-Gilchrist Counties (-82.879, 29.886), upstream 50 km (31 mi)
to the river's rise (the Santa Fe River runs underground for more than
3 miles, emerging at River Rise Preserve State Park) in Alachua County
(-82.591, 29.873).
(ii) Map of Unit 1, Suwannee River, follows:
[[Page 65343]]
[GRAPHIC] [TIFF OMITTED] TP27NO19.001
(7) Unit 2: Upper Santa Fe River in Alachua, Bradford, Columbia,
and Union, Counties, Florida.
(i) The Upper Santa Fe River Unit consists of approximately 43 km
(27 mi) of the Santa Fe River and New River in Alachua, Bradford,
Columbia, and Union Counties, Florida. The unit includes the Santa Fe
River from the river's sink (-82.572, 29.912) in Alachua County,
upstream 36.5 km (23 mi) to the confluence of Rocky Creek (-82.373,
29.879) in Bradford-Alachua Counties; and the New River from its
confluence with the Santa Fe River (-82.418, 29.923), upstream 6.5 km
(4 mi) to the confluence of Five Mile Creek (-82.362, 29.934) in Union-
Bradford Counties.
(ii) Map of Unit 2, Upper Santa Fe River, follows:
[[Page 65344]]
[GRAPHIC] [TIFF OMITTED] TP27NO19.002
(8) Unit 3: Withlacoochee River in Hamilton and Madison Counties,
Florida; Brooks and Lowndes Counties, Georgia.
(i) The Withlacoochee River Unit consists of approximately 75.5 km
(47 mi) of the Withlacoochee River in Hamilton and Madison Counties,
Florida, and Brooks and Lowndes Counties, Georgia. The unit includes
the Withlacoochee River from its confluence with the Suwannee River (-
83.171, 30.385) in Madison-Hamilton Counties, FL, upstream 75.5 km (47
mi) to the confluence of Okapilco Creek (-83.484, 30.752) in Brooks-
Lowndes Counties, GA.
(ii) Map of Unit 3, Withlacoochee River, follows:
[[Page 65345]]
[GRAPHIC] [TIFF OMITTED] TP27NO19.003
* * * * *
Dated: November 18, 2019.
Margaret E. Everson,
Principal Deputy Director, U.S. Fish and Wildlife Service, Exercising
the authority of the Director, U.S. Fish and Wildlife Service.
[FR Doc. 2019-25598 Filed 11-26-19; 8:45 am]
BILLING CODE 4333-15-C
