Endangered and Threatened Wildlife and Plants; Endangered Species Status for Slenderclaw Crayfish and Designation of Critical Habitat

CourtFish And Wildlife Service
Citation86 FR 50264
Publication Date08 Sep 2021
Record Number2021-19093
Federal Register, Volume 86 Issue 171 (Wednesday, September 8, 2021)
[Federal Register Volume 86, Number 171 (Wednesday, September 8, 2021)]
                [Rules and Regulations]
                [Pages 50264-50287]
                From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
                [FR Doc No: 2021-19093]
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                DEPARTMENT OF THE INTERIOR
                Fish and Wildlife Service
                50 CFR Part 17
                [Docket No. FWS-R4-ES-2018-0069; FF09E21000 FXES11110900000 212]
                RIN 1018-BD36
                Endangered and Threatened Wildlife and Plants; Endangered Species
                Status for Slenderclaw Crayfish and Designation of Critical Habitat
                AGENCY: Fish and Wildlife Service, Interior.
                ACTION: Final rule.
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                SUMMARY: We, the U.S. Fish and Wildlife Service (Service), determine
                endangered species status under the Endangered Species Act of 1973, as
                amended (Act), for the slenderclaw crayfish (Cambarus cracens), a
                cryptic freshwater crustacean that is endemic to streams on Sand
                Mountain within the Tennessee River Basin in DeKalb and Marshall
                Counties, Alabama. This rule adds this species to the Federal List of
                Endangered and Threatened Wildlife. In addition, we designate
                approximately 78 river miles (126 river kilometers) in DeKalb and
                Marshall Counties, Alabama, as critical habitat for the species under
                the Act.
                DATES: This rule is effective October 8, 2021.
                ADDRESSES: This final rule is available on the internet at http://www.regulations.gov under Docket No. FWS-R4-ES-2018-0069 and at https://www.fws.gov/southeast/. Comments and materials we received, as well as
                supporting documentation we used in preparing this rule, are available
                for public inspection at http://www.regulations.gov under Docket No.
                FWS-R4-ES-2018-0069. Comments, materials, and documentation that we
                considered in this rulemaking will be available by appointment, during
                normal business hours at: U.S. Fish and Wildlife Service, Alabama
                Ecological Services Field Office (see For Further Information Contact).
                 The coordinates or plot points or both from which the maps are
                generated are included in the administrative record for this critical
                habitat designation and are available at http://www.regulations.gov
                under Docket No. FWS-R4-ES-2018-0069, at https://www.fws.gov/southeast/
                , and at the Alabama Ecological Services Field Office (see For Further
                Information Contact). Any additional tools or supporting information
                that we developed for this critical habitat designation will also be
                available at the 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: William Pearson, Field Supervisor,
                U.S. Fish and Wildlife Service, Alabama Ecological Services Field
                Office, 1208-B Main Street, Daphne, AL 36526; telephone 251-441-5870.
                Persons who use a telecommunications device for the deaf (TDD) may call
                the Federal Relay Service at 800-877-8339.
                SUPPLEMENTARY INFORMATION:
                Executive Summary
                 Why we need to publish a rule. Under the Act, a species may warrant
                protection through listing if it is endangered or threatened throughout
                all or a significant portion of its range. In addition, to the maximum
                extent prudent and determinable, we must designate critical habitat for
                any species that we determine to be an endangered or threatened species
                under the Act. Listing a species as an endangered or threatened species
                and designation of critical habitat can only be completed by issuing a
                rule.
                 What this rule does. This rule will list the slenderclaw crayfish
                (Cambarus cracens) as an endangered species and will finalize the
                designation of critical habitat for the species under the Act.
                Accordingly, this rule revises part 17 of title 50 of the Code of
                Federal Regulations at 50 CFR 17.11 and 17.95.
                 The basis for our action. Under the Act, we may determine that a
                species is an endangered or threatened species based on any of five
                factors: (A) The present or threatened destruction, modification, or
                curtailment of its habitat or range; (B) overutilization for
                commercial, recreational, scientific, or educational purposes; (C)
                disease or predation; (D) the inadequacy of existing regulatory
                mechanisms; or (E) other natural or manmade factors affecting its
                continued existence. We have determined that the slenderclaw crayfish
                is threatened by competition from a nonnative species (Factors A and E)
                and habitat degradation resulting from poor water quality (Factor A).
                 Under section 4(a)(3) of the Act, if we determine that any species
                is an endangered or threatened species we must, to the maximum extent
                prudent and determinable, designate critical habitat. Under section
                4(b)(2) of the Act, 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
                [[Page 50265]]
                relevant impact of specifying any particular area as critical habitat.
                Section 3(5)(A) of the Act defines critical habitat as (i) the specific
                areas within the geographical area occupied by the species, at the time
                it is listed, on which are found those physical or biological features
                (I) essential to the conservation of the species and (II) which may
                require special management considerations or protections; and (ii)
                specific areas outside the geographical area occupied by the species at
                the time it is listed, upon a determination by the Secretary that such
                areas are essential for the conservation of the species.
                 Economic analysis. In accordance with section 4(b)(2) of the Act,
                we prepared a draft economic analysis of the impacts of designating
                critical habitat. We published an announcement of the completion of the
                draft and solicited public comments (83 FR 50582; October 9, 2018). We
                received no comments on the draft economic analysis. We adopt the draft
                economic analysis as final.
                 Peer review and public comment. We sought comments from independent
                specialists to ensure that our designation is based on scientifically
                sound data, assumptions, and analyses. We invited these peer reviewers
                to comment on our species status assessment (SSA) report, which
                informed both the proposed rule and this final rule. We also considered
                all comments and information received from the public and peer
                reviewers during the comment period.
                Supporting Documents
                 We prepared an SSA report for the slenderclaw crayfish. Written in
                consultation with species experts, the SSA report represents the best
                scientific and commercial data available concerning the status of the
                slenderclaw crayfish, including the impacts of past, present, and
                future factors (both adverse and beneficial) affecting the species
                (Service 2019, entire). The SSA report underwent independent peer
                review by scientists with expertise in crayfish biology, habitat
                management, and stressors (factors negatively affecting the species) to
                the slenderclaw crayfish. The SSA report, the proposed rule, this final
                rule, and other materials relating to this rulemaking can be found on
                the Service's Southeast Region website at https://www.fws.gov/southeast/ and at http://www.regulations.gov under Docket No. FWS-R4-
                ES-2018-0069.
                Previous Federal Actions
                 On October 9, 2018, we published in the Federal Register a proposed
                rule (83 FR 50582) to list the slenderclaw crayfish as a threatened
                species with provisions under section 4(d) of the Endangered Species
                Act of 1973, as amended (16 U.S.C. 1531 et seq.) and to designate
                critical habitat. Please refer to that proposed rule for a detailed
                description of all previous Federal actions concerning this species.
                Background
                 The slenderclaw crayfish is a relatively small, cryptic freshwater
                crustacean, with an average lifespan of 2 to 3 years, that is endemic
                to streams on Sand Mountain within the Tennessee River Basin in DeKalb
                and Marshall Counties, Alabama. Primarily due to the invasion of
                nonnative virile crayfish (Faxonius virilis) that prey upon and compete
                with the slenderclaw crayfish, in addition to habitat degradation
                resulting in poor water quality, the species' range is reduced with
                extirpation at some sites and low condition in both populations
                currently.
                 Please refer to the October 9, 2018, proposed listing and
                designation of critical habitat rule for the slenderclaw crayfish (83
                FR 50582) and the SSA report for a full summary of species information.
                Both are available on the Service's Southeast Region website at https://www.fws.gov/southeast/ and at http://www.regulations.gov under Docket
                No. FWS-R4-ES-2018-0069.
                Summary of Comments and Recommendations
                 In the October 9, 2018, proposed listing and critical habitat rule
                (83 FR 50582), we requested that all interested parties submit written
                comments on the proposal by December 10, 2018. We also contacted
                appropriate Federal and State agencies, scientific experts and
                organizations, and other interested parties and invited them to comment
                on the proposal. A newspaper notice inviting general public comment was
                published in the Guntersville (Alabama) Advertiser Gleam on October 17,
                2018. We did not receive any requests for a public hearing. All
                substantive information provided during the comment period has either
                been incorporated directly into the SSA report or this final
                determination or is addressed below, as appropriate.
                Peer Reviewer Comments
                 In accordance with our joint policy on peer review published on
                July 1, 1994 (59 FR 34270), and our August 22, 2016, memorandum
                updating and clarifying the role of peer review of listing actions
                under the Act, we solicited the expert opinions from six knowledgeable
                individuals with scientific expertise that included familiarity with
                slenderclaw crayfish and its habitat, biological needs, and threats. We
                received responses from two peer reviewers.
                 We reviewed all comments received from the peer reviewers for
                substantive issues and new information regarding the slenderclaw
                crayfish, and we updated the SSA report prior to the proposed rule. The
                peer reviewers generally concurred with our methods and conclusions and
                provided additional information, clarifications, and suggestions to
                improve the final SSA report. Peer reviewer comments were incorporated
                into the SSA report and this final rule as appropriate. In our response
                to peer reviewer comments, we only address issues that were not
                reflected in changes to the SSA report or this final rule.
                 Comment: One peer reviewer suggested that we project increased
                variability in rainfall instead of change in annual mean precipitation
                in our future condition projections. The reviewer noted that one
                historic drought could potentially eliminate one of these populations,
                and we do not understand the effects of flooding on the slenderclaw
                crayfish. In addition, the reviewer noted that considering climate-
                induced variability with urbanization could lead to a higher
                probability of occasional stream drying.
                 Our response: Although we did not use a model to project increased
                variability in rainfall as the commenter suggested, in the SSA, we did
                account for increased variability in rainfall and the hydrological
                impacts from precipitation change in our future-scenario projections
                and predictions of the slenderclaw crayfish. To assess the future
                condition of slenderclaw crayfish, we projected how precipitation can
                change in order to understand potential future hydrologic impacts
                within the system. Based on this information, we developed future
                scenarios on the plausible range in the hydrologic impacts from
                precipitation change as well as other factors influencing the viability
                of the slenderclaw crayfish.
                Public Comments
                 We received 10 public comments on the proposed listing rule and
                critical habitat rule. Where commenters provided substantive comments
                or new information concerning the proposed listing and species-specific
                section 4(d) rule for the slenderclaw crayfish, we incorporated this
                information into the final SSA report and this final rule as
                appropriate.
                 (1) Comment: One commenter expressed concern about the presence of
                the virile crayfish in slenderclaw
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                crayfish habitat and provided additional information and references on
                research of the effects of virile crayfish on other crayfish species.
                The commenter noted the virile crayfish has been attributed to decline
                of other native crayfish species in rivers and streams in West
                Virginia, Idaho, Wyoming, and Utah.
                 Our response: We appreciate the additional information and
                references provided regarding the virile crayfish effects to other
                native crayfish species. We incorporated the information from the
                additional studies of virile crayfish into the appropriate section of
                the SSA report (Service 2019, pp. 16-17). We further considered the
                additional information about the invasion of virile crayfish and what
                the impact is to the current condition of the slenderclaw crayfish.
                After further consideration of the invasion of virile crayfish, coupled
                with the low abundance of slenderclaw crayfish, we determined the risk
                of extinction for the slenderclaw crayfish is higher (see Determination
                of Slenderclaw Status, below) than we characterized in the proposal to
                list the slenderclaw crayfish as a threatened species. Based on the
                documented past expansion of the virile crayfish, current invasion and
                expansion into the slenderclaw crayfish's range in both populations
                will occur. Therefore, the slenderclaw crayfish is currently at risk of
                extinction as a result of the virile crayfish expansion. We reassessed
                the best available scientific and commercial data available regarding
                the slenderclaw crayfish to evaluate its status under the Act (see
                Determination of Slenderclaw Crayfish Status, below).
                 (2) Comment: Several other commenters expressed their opinion that
                the Service should list the species as endangered, rather than
                threatened, and stated reasons including degradation of its habitat,
                inadequacy of existing regulatory mechanisms, small population size,
                competition with virile crayfish, and climate change. One commenter
                specifically identified kudzu (Pueraria montana), an invasive plant, as
                a current and future threat to the riparian habitat in the range of the
                slenderclaw crayfish. In addition, the commenter noted that degradation
                of habitat for the slenderclaw crayfish is ongoing despite existing
                regulatory mechanisms.
                 Our response: When we evaluated the best available information, we
                concluded that kudzu was not a threat to the slenderclaw crayfish.
                Although we recognize that kudzu can alter habitat, this plant has not
                been documented to impact the slenderclaw crayfish. As to habitat
                degradation, as discussed under the Summary of Biological Status and
                Threats and Determination sections of the preamble of this final
                listing rule, we determined that existing regulatory mechanisms
                currently address the threat of habitat degradation. Other than
                identifying kudzu as a potential threat, the commenters did not provide
                any new information regarding current threats to the slenderclaw
                crayfish or its current status that was not already considered in the
                SSA report or proposed rule. However, as stated above under Our
                Response to (1) Comment, based on new information about the invasive
                virile crayfish, coupled with known information about slenderclaw
                crayfish abundance, we determined the slenderclaw crayfish meets the
                definition of an endangered species (see Determination of Slenderclaw
                Crayfish Status, below).
                 (3) Comment: Two commenters stated that the slenderclaw crayfish
                has been extirpated from 80 percent of its historical range, citing
                information from a status survey for three rare crayfishes, including
                the slenderclaw crayfish (Kilburn et al. 2012, entire).
                 Our response: As discussed in Kilburn et al. (2012, entire), the
                slenderclaw crayfish was only ever known to occur at five historical
                sites within two watersheds, Short and Town Creeks, and the authors did
                not find the slenderclaw crayfish outside these two watersheds. Since
                the publication of Kilburn et al. (2012, entire), recent surveys
                conducted in 2015 through 2017 identified the slenderclaw crayfish
                occurring at three new sites within this historical range. Although
                there is evidence of reduced abundance and presumed extirpation at four
                historical sites within this range, there are currently two populations
                of slenderclaw crayfish occurring across the range in Alabama, and the
                slenderclaw crayfish occurs within the two watersheds where it
                historically was known to occur. In short, at this time, the
                slenderclaw crayfish has not been extirpated from 80 percent of its
                historical range. Please refer to section 2.5 Range and Distribution in
                the SSA report for additional information on the historical and current
                range of the species.
                 (4) Comment: The Tennessee Valley Authority (TVA) recommended that
                the planting of bare-root seedlings as a method to revegetate and
                stabilize streambanks be included in the 4(d) rule. TVA has found this
                method to be successful for establishing a diversity of vegetation
                within riparian zones.
                 Our response: We agree that the planting of bare-root seedlings as
                a method to revegetate and stabilize streambanks would be beneficial to
                slenderclaw crayfish. However, in this final rule, the Service has
                determined that the slenderclaw crayfish meets the definition of an
                endangered species, and the Act does not allow issuance of a 4(d) rule
                for a species listed as endangered.
                Summary of Changes From the Proposed Rule
                 The final rule incorporates changes to our proposed listing rule
                and SSA Report based on the comments we received, as discussed in the
                Summary of Comments and Recommendations. Based on comments received and
                our further consideration of the invasion of virile crayfish coupled
                with low abundance of slenderclaw crayfish, we determined the risk of
                extinction is higher (see Determination, below) than we characterized
                in the proposal to list the slenderclaw crayfish as a threatened
                species (83 FR 50582; October 9, 2018). We reassessed our analysis and
                found that the documented expansion and invasion of the virile crayfish
                in the slenderclaw crayfish's range, along with additional information
                regarding impacts to other native crayfish species and known low
                abundance in both populations of the slenderclaw crayfish, places the
                slenderclaw crayfish at a high risk for extinction throughout its
                range. Thus, after evaluating the best available information and the
                Act's regulation and policies, we determined that the slenderclaw
                crayfish meets the definition of an endangered species, and such status
                is more appropriate than that of a threatened species as originally
                proposed. Because we determined that the slenderclaw crayfish meets the
                definition of an endangered species, a 4(d) rule is inapplicable;
                consequently, the proposed special rule under the authority of section
                4(d) of the Act was removed from the final rule. We received no
                substantive comments on the proposed critical habitat designation;
                accordingly, there are no changes in the final designation. Lastly, we
                made minor editorial and nonsubstantive corrections throughout the SSA
                report and this final rule.
                Summary of Biological Status and Threats
                 We completed a comprehensive assessment of the biological status of
                the slenderclaw crayfish and prepared an SSA report (Service 2019,
                entire), which provides a thorough account of the species' overall
                viability. Below, we summarize the key results and conclusions of the
                SSA report.
                 To evaluate the current and future viability of the slenderclaw
                crayfish, we assessed the three conservation biology
                [[Page 50267]]
                principles of resiliency, redundancy, and representation (the ``3 Rs''
                described in detail in the SSA report) (Shaffer and Stein 2000, pp.
                306-310). Briefly, resiliency supports the ability of the species to
                withstand environmental and demographic stochasticity (for example, wet
                or dry, warm or cold years), redundancy supports the ability of the
                species to withstand catastrophic events (for example, droughts, large
                pollution events), and representation supports the ability of the
                species to adapt over time to long-term changes in the environment (for
                example, climate changes). In general, the more resilient and redundant
                a species is and the more representation it has, the more likely it is
                to sustain populations over time, even under changing environmental
                conditions. Using these principles, we identified the species'
                ecological requirements for survival and reproduction at the
                individual, population, and species levels, and described the
                beneficial and risk factors influencing the species' viability.
                 The historical range of the slenderclaw crayfish included two known
                populations, Short and Town Creeks, in watersheds leading into the
                Tennessee River in Alabama. Within the Short Creek population, a total
                of 90 slenderclaw crayfish, with 56 of those being juveniles, were
                collected during the period 1970-1974 (Bouchard and Hobbs 1976, entire;
                Schuster 2017, unpublished data). Historically, only one crayfish was
                collected in the Town Creek population in the period 1970-1974
                (Bouchard and Hobbs 1976, entire; Schuster 2017, unpublished data).
                Surveys conducted from 2009 through 2017 have documented the
                slenderclaw crayfish within the same two populations, Short Creek
                (three sites in Shoal Creek) and Town Creek (one site in Bengis Creek
                and one site in Town Creek) (Kilburn et al. 2014, pp. 116-117; Bearden
                et al. 2017, pp. 17-18; Schuster 2017, unpublished data; Taylor 2017,
                unpublished data).
                 Of the five historical sites, the slenderclaw crayfish is no longer
                found and is presumed extirpated at three sites in the Short Creek
                population (one site in Short Creek and two sites in Scarham Creek) and
                one site in the Town Creek population (one site in Bengis Creek)
                despite repeated survey efforts (Kilburn et al. 2014, pp. 116-117;
                Bearden et al. 2017, pp. 17-18; Schuster 2017, unpublished data; Taylor
                2017, unpublished data). Across current survey efforts from 2009
                through 2017, researchers collected 28 slenderclaw crayfish, including
                2 juveniles, within the Short Creek population, and 2 adults and 2
                juveniles from the Town Creek population. There are no actual
                historical or current population estimates for slenderclaw crayfish,
                and the abundance numbers (total number collected) reported are not
                population estimates.
                 At the population level, the overall current condition in terms of
                resiliency was determined to be low for both Short Creek and Town Creek
                populations. We estimate that the slenderclaw crayfish currently has
                some adaptive potential (i.e., representation) due to the habitat
                variability features occurring in the Short Creek and Town Creek
                populations. The Short Creek population occurs in streams with
                predominantly large boulders and fractured bedrock, broader stream
                widths, and greater depths, and the Town Creek population occurs in
                streams with larger amounts of gravel and cobble, narrower stream
                widths, and shallower depths (Bearden 2017, pers. comm.). At present,
                the slenderclaw crayfish has two populations in low condition
                (resiliency) with habitat types that vary between populations.
                Therefore, given the variable habitat in which the slenderclaw crayfish
                occurs, the species may have some level of adaptive capacity. Given the
                low resiliency of both populations of the slenderclaw crayfish, current
                representation is reduced.
                 The slenderclaw crayfish exhibits limited redundancy given its
                narrow range and that four out of five sites within the species'
                historical range are presumed extirpated. In addition, connectivity
                between the Short Creek and Town Creek populations is likely low,
                because both Short and Town Creek streams flow downstream into, and
                thus are separated by, Guntersville Lake. To date, no slenderclaw
                crayfish have been documented in impounded areas including Guntersville
                Lake. Multiple sites in the same population could allow recolonization
                following a catastrophic event (e.g., chemical spill) that may affect a
                large proportion of a population; however, given the species' limited
                redundancy and current low resiliency of both populations, it might be
                difficult to reestablish an entire population affected by a
                catastrophic event, as the connectivity between the two populations is
                low. Further, the currently occupied sites in the Short Creek
                population are in a single tributary, and one catastrophic event could
                impact this entire population.
                Risk Factors for Slenderclaw Crayfish
                 The Act directs us to determine whether any species is an
                endangered species or a threatened species because of any factors
                affecting its continued existence. Under section 4(a)(1) of the Act, we
                may list a species based on (A) The present or threatened destruction,
                modification, or curtailment of its habitat or range; (B)
                overutilization for commercial, recreational, scientific, or
                educational purposes; (C) disease or predation; (D) the inadequacy of
                existing regulatory mechanisms; or (E) other natural or manmade factors
                affecting its continued existence.
                 We reviewed the potential risk factors (i.e., threats or stressors)
                that are affecting the slenderclaw crayfish now and are expected to
                affect it into the future. Because we have determined that the species
                is currently in danger of extinction throughout its range, in this
                final rule we will discuss in detail only those threats that we
                conclude are driving the current status and viability of the species.
                We have determined that competition from a nonnative species (Factors A
                and E), habitat degradation resulting from poor water quality (Factor
                A), and low abundance (Factor E) pose the largest risk to the current
                viability of the slenderclaw crayfish. Other potential stressors to the
                species--hydrological variation and alteration (Factors A and E), land
                use (Factor A), and scientific collection (Factor B)--are discussed in
                the SSA report and proposed rule. Currently existing regulatory
                mechanisms, such as regulations implemented under the Clean Water Act
                to protect water quality and instream habitat, address the habitat
                degradation threat to the slenderclaw crayfish. However, we also found
                that existing regulatory mechanisms do not address, nor do they
                contribute to, the threat of the nonnative virile crayfish, which is
                the primary threat to the slenderclaw crayfish. We find the species
                does not face significant threats from disease or predation (Factor C).
                We also reviewed the conservation efforts being undertaken for the
                habitat in which the slenderclaw crayfish occurs.
                Nonnative Species
                 The virile crayfish (Faxonius virilis), previously recognized as
                Orconectes virilis (Crandall and De Grave 2017, p. 5), is a crayfish
                native to the Missouri, upper Mississippi, lower Ohio, and the Great
                Lakes drainages (Service 2015, p. 1). The species has spread from its
                native range through dispersal as fishing bait, as pets, and through
                commercial (human) consumption (Schwartz et al. 1963, p. 267; Service
                2015, p. 4). Virile crayfish inhabit a variety of watersheds in the
                United States, including those with very few to no native crayfish
                species, and have been found in lake, wetland, and stream environments
                [[Page 50268]]
                (Larson et al. 2010, p. 2; Loughman and Simon 2011, p. 50). Virile
                crayfish are generalists, able to withstand various conditions, and
                have the natural tendency to migrate (Loughman and Simon 2011, p. 50).
                This species has been documented to spread approximately 124 mi (200
                km) over 15 years (B. Williams 2018, pers. comm.; Williams et al. 2011,
                entire).
                 Based on comparison of body size, average claw size, aggression
                levels, and growth rates, it appears that the virile crayfish has an
                ecological advantage over several native crayfish species, including
                those in the Cambarus and Procambarus genera (Hale et al. 2016, p. 6).
                In addition, virile crayfish have been documented to displace native
                crayfish (Hubert 2010, p. 5; Loughman and Welsh 2010, pp. 70 and 72).
                 Virile crayfish were first collected near the range of slenderclaw
                crayfish in 1967 (Schuster 2017, unpublished data). Since then, the
                virile crayfish has been documented in Guntersville Lake (a Tennessee
                Valley Authority reservoir constructed in 1939, on the Tennessee River
                mainstem) (Schuster 2017, unpublished data; Taylor 2017, unpublished
                data). In addition, the virile crayfish was found in 2015 at the type
                locality (location where the species was first described) for the
                slenderclaw crayfish in Short Creek (Short Creek population), in which
                the slenderclaw crayfish no longer occurs (Schuster 2017, unpublished
                data; Taylor 2017, unpublished data). In 2016, the virile crayfish was
                found at two sites in Drum Creek within the Short Creek population
                boundary and at the confluence of Short Creek and Guntersville Lake
                (Schuster 2017, unpublished data; Taylor 2017, unpublished data).
                During 2017, 20 virile crayfish were again found at the location where
                slenderclaw crayfish was first described in Short Creek (Taylor 2017,
                unpublished data). Also during 2017, this nonnative crayfish was
                documented at four new sites in adjacent watersheds outside of the
                Short Creek population boundary. Juvenile virile crayfish have been
                collected in the Short Creek population, indicating that the species is
                established there (Taylor 2017, unpublished data). To date, no virile
                crayfish have been documented within the Town Creek population boundary
                (Schuster 2017, unpublished data; Taylor 2017, unpublished data).
                 The adaptive nature of the virile crayfish, the effects of this
                nonnative species on other crayfish species in their native ranges, and
                records of the virile crayfish's presence in the slenderclaw crayfish's
                historical and current range indicate that the virile crayfish is a
                factor that negatively influences the viability of the slenderclaw
                crayfish in the near term and future. Also, considering that the virile
                crayfish is a larger crayfish, is a strong competitor, and tends to
                migrate, while the slenderclaw crayfish has low abundance and is a
                smaller bodied crayfish, it is reasonable to conclude that once the
                virile crayfish is established at a site, it will out-compete
                slenderclaw crayfish.
                Water Quality
                 Direct impacts of poor water quality on the slenderclaw crayfish
                are unknown; however, aquatic macroinvertebrates (i.e., mayflies,
                caddisflies, stoneflies) are negatively affected by poor water quality,
                and this may indirectly impact the slenderclaw crayfish, which likely
                feeds on them. Degradation of water quality impacts aquatic
                macroinvertebrates and may even cause stress to individual crayfish
                (Arthur et al. 1987, p. 328; Devi and Fingerman 1995, p. 749; Rosewarne
                et al. 2014, p. 69). Although crayfish generally have a higher
                tolerance to ammonia than some aquatic species (i.e., mussels), their
                food source, larval insects, is impacted by ammonia at lower
                concentrations (Arthur et al. 1987, p. 328). Juvenile slenderclaw
                crayfish likely feed exclusively on aquatic macroinvertebrates, which
                are impacted by elevated ammonia and poor water quality.
                 Within the range of the slenderclaw crayfish, Scarham Creek and
                Town Creek were identified as impaired waters by the Alabama Department
                of Environmental Management (ADEM). These creeks were listed in 1996
                and 1998, respectively, on Alabama's list of impaired water bodies
                (list of waterbodies that do not meet established State water quality
                standards) under section 303(d) of the Clean Water Act (hereafter,
                ``the 303(d) list'') (ADEM 1996, p. 1; ADEM 2001, p. 11). Scarham Creek
                was placed on the 303(d) list for impacts from pesticides, siltation,
                ammonia, low dissolved oxygen/organic enrichment, and pathogens from
                agricultural sources; this section of Scarham Creek stretched 24 mi (39
                km) upstream from its confluence with Short Creek to its source (ADEM
                2013, p. 1). However, Scarham Creek was removed from Alabama's 303(d)
                list of impaired waters in 2004, after the total maximum daily loads
                (TMDLs; maximum amount of a pollutant or pollutants allowed in a water
                body while still meeting water quality standards) were developed in
                2002 (ADEM 2002, p. 5; ADEM 2006, entire). Town Creek was previously
                listed on the 303(d) list for ammonia and organic enrichment/dissolved
                oxygen impairments. Although TMDLs have been in development for these
                issues (ADEM 1996, entire), all of Town Creek is currently on the
                303(d) list for mercury contamination due to atmospheric deposition
                (ADEM 2016a, appendix C). One identified source of wastewater discharge
                to Town Creek is Hudson Foods near Geraldine, Alabama (ADEM 1996, p.
                1).
                 Pollution from nonpoint sources stemming from agriculture, animal
                production, and unimproved roads has been documented within the range
                of the slenderclaw crayfish (Bearden et al. 2017, p. 18). Alabama is
                ranked third in the United States for broiler (chicken) production
                (Alabama Poultry Producers 2017, unpaginated), and DeKalb and Marshall
                Counties are two of the four most active counties in Alabama for
                poultry farming (Conner 2008, unpaginated). Poultry farms and poultry
                litter (a mixture of chicken manure, feathers, spilled food, and
                bedding material that frequently is used to fertilize pastureland or
                row crops) have been documented to contain nutrients, pesticides,
                bacteria, heavy metals, and other pathogens (Bolan et al. 2010, pp.
                676-683; Stolz et al. 2007, p. 821). A broiler house containing 20,000
                birds will produce approximately 150 tons of litter a year (Ritz and
                Merka 2013, p. 2). Surface-spreading of litter allows runoff from heavy
                rains to carry nutrients from manure into nearby streams. Poultry
                litter spreading is a practice that occurs within the Short Creek
                watershed (Short Creek population of slenderclaw crayfish) (Top of
                Alabama Regional Council of Governments 2015, p. 8).
                 During recent survey efforts, water quality was impaired due to
                nutrients and bacteria within the Short Creek population, and levels of
                atrazine may be of concern in the watershed (Bearden et al. 2017, p.
                32). In Bengis Creek (Town Creek population), lead measurements
                exceeded the acute and chronic aquatic life criteria set by the U.S.
                Environmental Protection Agency (EPA) and ADEM (Bearden et al. 2017, p.
                32; ADEM 2017, p. 10-7). These criteria are based on levels developed
                by the EPA and ADEM to protect fish and wildlife (ADEM 2017, entire),
                and exceedance of these values is likely to harm animal or plant life
                (EPA 2018b, unpaginated). Elevated ammonia concentrations in Town Creek
                were also documented and reflected nonpoint source pollution at low-
                flow and high-flow measurements (Bearden et al. 2017, p. 21). In late
                summer and fall surveys, potential eutrophication likely stemming from
                low-water conditions, elevated nutrients, and low dissolved oxygen was
                documented within both
                [[Page 50269]]
                Short and Town Creek watersheds (Bearden et al. 2017, p. 31).
                Low Abundance
                 The number of slenderclaw crayfish is currently low, with only two
                populations and few individuals within each population, which is
                reflected in the species' low resiliency, redundancy, and
                representation. The current estimated low abundance (n=32) and genetic
                drift may negatively affect populations of the slenderclaw crayfish. In
                general, the fewer populations a species has or the smaller the sizes
                of those populations, the greater the likelihood of extinction by
                chance alone (Shaffer and Stein 2000, p. 307). Genetic drift occurs in
                all species but is more likely to negatively affect populations that
                have a smaller effective population size (Caughley 1994, pp. 219-220;
                Huey et al. 2013, p. 10). There are only two populations of the
                slenderclaw crayfish with limited connectivity between those
                populations, which may have reduced genetic diversity. However, no
                testing for genetic drift has been conducted for the slenderclaw
                crayfish.
                Synergistic Effects
                 In addition to impacting the species individually, it is likely
                that several of the risk factors are acting synergistically or
                additively on the species. The combined impact of multiple stressors is
                likely more harmful than a single stressor acting alone. For example,
                in the Town Creek watershed, Town Creek was previously listed as an
                impaired stream due to ammonia and organic enrichment/dissolved oxygen
                impairments, and recent surveys documented eutrophic conditions of
                elevated nutrients and low dissolved oxygen. In addition, hydrologic
                variation and alteration has occurred within the Town Creek watershed
                as discussed further in the SSA report. Low-water conditions naturally
                occur in streams where the slenderclaw crayfish occurs, and alteration
                causing prolonged low-water periods could have a negative impact on the
                reproductive success of the slenderclaw crayfish. Further, connectivity
                between Town Creek and Short Creek watersheds is likely low due to
                Guntersville Lake. The combination of all of these stressors on the
                sensitive aquatic species in this habitat has probably impacted
                slenderclaw crayfish, in that only four individuals have been recorded
                there since 2009.
                Conservation Actions
                 TMDLs have been developed in Scarham Creek for siltation, ammonia,
                pathogens, organic enrichment/low dissolved oxygen, and pesticides
                (ADEM 2002, p. 5). Town Creek is currently on the 303(d) list for
                mercury contamination due to atmospheric deposition (ADEM 2016a,
                appendix C). However, a TMDL for organic enrichment/dissolved oxygen
                has been developed for Town Creek (ADEM 1996, entire). Through the
                303(d) program, ADEM provides funding derived under section 319 of the
                Clean Water Act to improve water quality in the watersheds. In 2014,
                the Upper Scarham Creek Watershed was selected as a priority by ADEM
                for the development of a watershed management plan. In Fiscal Year
                2016, the DeKalb County Soil and Water Conservation District contracted
                with ADEM to implement the Upper Scarham Creek Watershed Project using
                section 319 funding (ADEM 2016b, p. 39).
                 The U.S. Department of Agriculture's Natural Resources Conservation
                Service (NRCS) National Water Quality Initiative program identified the
                Guntersville Lake/Upper Scarham Creek in DeKalb County as an Alabama
                Priority Watershed in 2015 (NRCS 2017, unpaginated). This watershed is
                within the historical range of the slenderclaw crayfish. It is
                recognized as in need of conservation practices, as it was listed on
                the Alabama 303(d) list as impaired due to organic enrichment/low
                dissolved oxygen and ammonia as nitrogen (ADEM 2002, p. 4). The
                National Water Quality Initiative helps farmers, ranchers, and forest
                landowners improve water quality and aquatic habitats in impaired
                streams through conservation and management practices. Such practices
                include controlling and trapping nutrient and manure runoff, and
                installation of cover crops, filter strips, and terraces.
                Future Condition of the Slenderclaw Crayfish
                 For the purpose of this assessment, we define viability as the
                ability of the species to sustain populations in the wild over time. As
                part of the SSA, to help address uncertainty associated with the degree
                and extent of potential future stressors and their impacts on the needs
                of the species, the concepts of resiliency, redundancy, and
                representation were applied using three plausible future scenarios. We
                devised these scenarios by identifying information on the following
                primary stressors that are anticipated to affect the species in the
                future: Nonnative virile crayfish, hydrological variation
                (precipitation and water quantity), land-use change, and water quality.
                However, having determined that the current condition of the
                slenderclaw crayfish is consistent with that of an endangered species
                (see Determination of Slenderclaw Crayfish Status, below), the results
                of the future scenarios are not material to our decision, and
                therefore, we are not presenting the results in this final rule. Please
                refer to the proposed listing and designation of critical habitat rule
                for the slenderclaw crayfish (83 FR 50582; October 9, 2018) and the SSA
                report (Service 2018, entire) for the full analysis of future
                conditions and descriptions of the associated scenarios.
                Determination of Slenderclaw Crayfish Status
                 We have carefully assessed the best scientific and commercial
                information available regarding the past, present, and future threats
                to the slenderclaw crayfish. Section 4 of the Act (16 U.S.C. 1533) and
                its implementing regulations (50 CFR part 424) set forth the procedures
                for determining whether a species meets the definition of an endangered
                species or a threatened species. The Act defines an endangered species
                as a species ``in danger of extinction throughout all or a significant
                portion of its range,'' and a threatened species as a species ``likely
                to become an endangered species within the foreseeable future
                throughout all or a significant portion of its range.'' The Act
                requires that we determine whether a species meets the definition of
                ``endangered species'' or ``threatened species'' because of any of the
                following factors: (A) The present or threatened destruction,
                modification, or curtailment of its habitat or range; (B)
                Overutilization for commercial, recreational, scientific, or
                educational purposes; (C) Disease or predation; (D) The inadequacy of
                existing regulatory mechanisms; or (E) Other natural or manmade factors
                affecting its continued existence.
                Status Throughout All of Its Range
                 After evaluating threats to the species and assessing the
                cumulative effect of the threats under the section 4(a)(1) factors, we
                have determined the slenderclaw crayfish to be endangered throughout
                all of its range. Our review of the best available information
                indicates that there are currently two populations of slenderclaw
                crayfish in low condition occurring across the species' historical
                range in Alabama. Despite the species being identified at three new
                sites as reflected by recent increased survey efforts, there is
                substantial evidence of reduced abundance (current estimate of n=32)
                and presumed extirpation at four historical sites. In the Short Creek
                population, 28 slenderclaw crayfish
                [[Page 50270]]
                were collected during surveys from 2009 through 2017; in the Town Creek
                population, only 4 slenderclaw crayfish were collected during this same
                time period. Further, there is evidence of limited reproduction with
                only 3 juveniles collected from both populations since 2016. The
                slenderclaw crayfish exhibits low natural redundancy given its narrow
                range, but given presumed extirpation of sites within both populations,
                the species' redundancy is further limited.
                 Several sources of indirect water quality impacts on both
                populations have been identified. However, no direct water quality-
                related impacts are known at this time, and crayfish generally have a
                higher tolerance to poor water quality conditions than other aquatic
                species. In addition, currently existing regulatory mechanisms, such as
                establishing TMDLs, are addressing the effects of poor water quality on
                the slenderclaw crayfish.
                 Currently, one of the primary threats to the slenderclaw crayfish
                is the nonnative virile crayfish. The virile crayfish is a larger
                crayfish, a strong competitor, and tends to migrate, and has been
                attributed to declines of other native crayfish species. Considering
                these characteristics of the virile crayfish and the size (small-
                bodied) of the slenderclaw crayfish, it is reasonable to infer that
                once virile crayfish is established at a site it will out-compete
                slenderclaw crayfish. This may already be the case at the slenderclaw
                crayfish type locality where virile crayfish were found in recent
                surveys. At present, the virile crayfish has been reported as occurring
                at only one site, the type locality, where the slenderclaw crayfish was
                known to occur. Specifically, the virile crayfish occupies
                approximately 12.5 river miles (mi) (20.1 river kilometers (km)) at a
                few sites approximately 7 river mi (11 river km) downstream of current
                slenderclaw crayfish sites in the Short Creek population (233.6 river
                mi (375.9 river km)), and, therefore, the virile crayfish is an
                imminent threat to slenderclaw crayfish in the Short Creek population.
                Although there are currently no records of the virile crayfish in the
                Town Creek population (281.7 river mi (453.4 river km)), the virile
                crayfish is documented in Guntersville Lake, which leads directly into
                the Town Creek population. Based on the documented past expansion of
                the virile crayfish (despite some uncertainty and variation in the rate
                at which it will expand), and documented impacts and declines to other
                native crayfish species, current invasion and expansion into the
                slenderclaw crayfish's range in the Town Creek population will occur.
                Coupled with the current low abundance (n=4) of slenderclaw crayfish in
                the Town Creek population, the invasion of virile crayfish makes the
                slenderclaw crayfish at high risk of extirpation in this watershed.
                 Overall, given the current low resiliency in both populations and
                the species' limited redundancy, it will be difficult to reestablish an
                entire population, should it be affected by a catastrophic event,
                without human intervention, as the connectivity between the two
                populations is low.
                 Therefore, the slenderclaw crayfish is currently at risk of
                extirpation in both populations. Thus, we have determined that the
                slenderclaw crayfish is currently in danger of extinction throughout
                all of its range.
                Status Throughout a Significant Portion of Its Range
                 Under the Act and our implementing regulations, a species may
                warrant listing if it is in danger of extinction or likely to become so
                in the foreseeable future throughout all or a significant portion of
                its range. We have determined that the slenderclaw crayfish is in
                danger of extinction throughout all of its range, warranting listing as
                endangered throughout its range. Accordingly, we did not undertake an
                analysis of any significant portion of its range. Our determination is
                consistent with the decision in Center for Biological Diversity v.
                Everson, 2020 WL 437289 (D.D.C. Jan. 28, 2020).
                Determination of Status
                 Our review of the best available scientific and commercial
                information indicates that the slenderclaw crayfish meets the
                definition of an endangered species. Therefore, in accordance with
                sections 3(20) and 4(a)(1) of the Act, we add the slenderclaw crayfish
                as an endangered species to the List of Endangered and Threatened
                Wildlife at 50 CFR 17.11(h).
                Available Conservation Measures
                 The primary purpose of the Act is the conservation of endangered
                and threatened species and the ecosystems upon which they depend. The
                ultimate goal of such conservation efforts is the recovery of these
                listed species, so that they no longer need the protective measures of
                the Act. Conservation measures provided to species listed as endangered
                or threatened species under the Act include recognition, recovery
                actions, requirements for Federal protection, and prohibitions against
                certain practices. Recognition through listing results in public
                awareness and conservation by Federal, State, Tribal, and local
                agencies, private organizations, and individuals. The Act encourages
                cooperation with the States and calls for recovery actions to be
                carried out for all listed species. The protection required by Federal
                agencies and the prohibitions against certain activities are discussed,
                in part, below.
                 Subsection 4(f) of the Act requires the Service to develop and
                implement recovery plans for the conservation of endangered and
                threatened species. The recovery planning process involves the
                identification of actions that are necessary to halt or reverse the
                species' decline by addressing the threats to its survival and
                recovery. The goal of this process is to restore listed species to a
                point where they are secure, self-sustaining, and functioning
                components of their ecosystems.
                 Recovery planning consists of preparing draft and final recovery
                plans, beginning with the development of a recovery outline and making
                it available to the public within 30 days of a final listing
                determination. The recovery outline guides the immediate implementation
                of urgent recovery actions and describes the process to be used to
                develop a recovery plan. Revisions of the plan may be done to address
                continuing or new threats to the species, as new substantive
                information becomes available. The recovery plan also identifies
                recovery criteria for review of when a species may be ready for
                reclassification from endangered to threatened (``downlisting'') or
                removal from protected status (``delisting''), and methods for
                monitoring recovery progress. Recovery plans also establish a framework
                for agencies to coordinate their recovery efforts and provide estimates
                of the cost of implementing recovery tasks. Recovery teams (composed of
                species experts, Federal and State agencies, nongovernmental
                organizations, and stakeholders) are often established to develop
                recovery plans. When completed, the recovery outline, draft recovery
                plan, and the final recovery plan will be available on our website
                (http://www.fws.gov/endangered) or from our Alabama Ecological Services
                Field Office (see FOR FURTHER INFORMATION CONTACT).
                 Implementation of recovery actions generally requires the
                participation of a broad range of partners, including other Federal
                agencies, States, Tribes, nongovernmental organizations, businesses,
                and private landowners. Examples of recovery actions include habitat
                restoration (e.g., restoration of native vegetation), research, captive
                propagation and reintroduction, and outreach and education. The
                recovery of
                [[Page 50271]]
                many listed species cannot be accomplished solely on Federal lands
                because their range may occur primarily or solely on non-Federal lands.
                To achieve recovery of these species requires cooperative conservation
                efforts on private, State, and Tribal lands.
                 Following publication of this final listing rule, funding for
                recovery actions will be available from a variety of sources, including
                Federal budgets, State programs, and cost share grants for non-Federal
                landowners, the academic community, and nongovernmental organizations.
                In addition, pursuant to section 6 of the Act, the State of Alabama
                will be eligible for Federal funds to implement management actions that
                promote the protection or recovery of the slenderclaw crayfish.
                Information on our grant programs that are available to aid species
                recovery can be found at: http://www.fws.gov/grants.
                 Please let us know if you are interested in participating in
                recovery efforts for the slenderclaw crayfish. Additionally, we invite
                you to submit any new information on this species whenever it becomes
                available and any information you may have for recovery planning
                purposes (see FOR FURTHER INFORMATION CONTACT).
                 Section 7(a) of the Act requires Federal agencies to evaluate their
                actions with respect to any species that is listed as an endangered or
                threatened species and with respect to its critical habitat.
                Regulations implementing this interagency cooperation provision of the
                Act are codified at 50 CFR part 402. Section 7(a)(2) of the Act
                requires Federal agencies to ensure that activities they authorize,
                fund, or carry out are not likely to jeopardize the continued existence
                of any endangered or threatened species or destroy or adversely modify
                its critical habitat. If a Federal action may affect a listed species
                or its critical habitat, the responsible Federal agency must enter into
                consultation with the Service.
                 Federal agency actions within the slenderclaw crayfish's habitat
                that may require conference or consultation or both as described in the
                preceding paragraph include management and any other landscape-altering
                activities on Federal lands administered by the U.S. Fish and Wildlife
                Service and U.S. Forest Service; technical assistance and projects
                funded through the U.S. Department of Agriculture's NRCS; issuance of
                permits by the Tennessee Valley Authority for right-of-way stream
                crossings; issuance of section 404 Clean Water Act (33 U.S.C. 1251 et
                seq.) permits by the U.S. Army Corps of Engineers; and construction and
                maintenance of roads or highways by the Federal Highway Administration.
                 The Act and its implementing regulations set forth a series of
                general prohibitions and exceptions that apply to endangered wildlife.
                The prohibitions of section 9(a)(1) of the Act, codified at 50 CFR
                17.21, make it illegal for any person subject to the jurisdiction of
                the United States to take (which includes harass, harm, pursue, hunt,
                shoot, wound, kill, trap, capture, or collect; or to attempt any of
                these) endangered wildlife within the United States or on the high
                seas. In addition, it is unlawful to import; export; deliver, receive,
                carry, transport, or ship in interstate or foreign commerce in the
                course of commercial activity; or sell or offer for sale in interstate
                or foreign commerce any species listed as an endangered species. It is
                also illegal to possess, sell, deliver, carry, transport, or ship any
                such wildlife that has been taken illegally. Certain exceptions apply
                to employees of the Service, the National Marine Fisheries Service,
                other Federal land management agencies, and State conservation
                agencies.
                 We may issue permits to carry out otherwise prohibited activities
                involving endangered wildlife under certain circumstances. Regulations
                governing permits are codified at 50 CFR 17.22. With regard to
                endangered wildlife, a permit may be issued for the following purposes:
                For scientific purposes, to enhance the propagation or survival of the
                species, and for incidental take in connection with otherwise lawful
                activities. There are also certain statutory exemptions from the
                prohibitions, which are found in sections 9 and 10 of the Act.
                 It is our policy, as published in the Federal Register on July 1,
                1994 (59 FR 34272), to identify, to the maximum extent practicable at
                the time a species is listed, those activities that would or would not
                constitute a violation of section 9 of the Act. The intent of this
                policy is to increase public awareness of the effect of a final listing
                on proposed and ongoing activities within the range of a listed
                species. Based on the best available information, at this time, we are
                unable to identify specific activities that would not be considered to
                result in a violation of section 9 of the Act, because it is likely
                that site-specific conservation measures may be needed for activities
                that may directly or indirectly affect the slenderclaw crayfish. Based
                on the best available information, the following actions may
                potentially result in a violation of section 9 of the Act or this final
                rule; this list is not comprehensive:
                 (1) Unauthorized handling, collecting, possessing, selling,
                delivering, carrying, or transporting of the slenderclaw crayfish,
                including interstate transportation across State lines and import or
                export across international boundaries.
                 (2) Destruction/alteration of the species' habitat by discharge of
                fill material, draining, ditching, tiling, pond construction, stream
                channelization or diversion, or diversion or alteration of surface or
                ground water flow into or out of the stream (i.e., due to roads,
                impoundments, discharge pipes, stormwater detention basins, etc.).
                 (3) Introduction of nonnative species that compete with or prey
                upon the slenderclaw crayfish, such as the introduction of nonnative
                virile crayfish in Alabama.
                 (4) Modification of the channel or water flow of any stream in
                which the slenderclaw crayfish is known to occur.
                 (5) Discharge of chemicals or fill material into any waters in
                which the slenderclaw crayfish is known to occur.
                 Questions regarding whether specific activities would constitute a
                violation of section 9 of the Act should be directed to the Alabama
                Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).
                Critical Habitat Designation
                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
                [[Page 50272]]
                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. Designation also does not allow the government
                or public to access private lands, nor does designation 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 Federal agency would be required to consult
                with the Service under section 7(a)(2) of the Act. However, even if the
                Service were to conclude that the proposed activity would result in
                destruction or adverse modification of the critical habitat, the
                Federal action agency and the landowner are not required to abandon the
                proposed activity, or to restore or recover the species; instead, they
                must 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 within an area, we focus on the
                specific features that 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 may 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. We will determine whether unoccupied areas are essential for
                the conservation of the species by considering the life-history,
                status, and conservation needs of the species. This consideration will
                be further informed by any generalized conservation strategy, criteria,
                or outline that may have been developed for the species to provide a
                substantive foundation for identifying which features and specific
                areas are essential to the conservation of the species and, as a
                result, the development of the critical habitat designation. For
                example, an area currently occupied by the species but that was not
                occupied at the time of listing may be essential to the conservation of
                the species and may be included in the critical habitat designation.
                 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 from the SSA report and information developed during the
                listing process for the species. Additional information sources may
                include any generalized conservation strategy, criteria, or outline
                that may have been developed for the species; 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 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, or other species conservation planning efforts if
                new information available at the time of these planning efforts calls
                for a different outcome.
                 On August 27, 2019, we published a final rule in the Federal
                Register (84 FR 45020) to amend our regulations concerning the
                procedures and criteria we use to designate and revise critical
                habitat. That rule became effective on September 26, 2019, but, as
                stated in
                [[Page 50273]]
                that rule, the amendments it sets forth apply to ``rules for which a
                proposed rule was published after September 26, 2019.'' We published
                our proposed critical habitat designation for the slenderclaw crayfish
                on October 9, 2018 (83 FR 50582); therefore, the amendments set forth
                in the August 27, 2019, final rule (84 FR 45020) do not apply to this
                final designation of critical habitat for the slenderclaw crayfish.
                Physical or Biological Features
                 In accordance with section 3(5)(A)(i) of the Act and regulations at
                50 CFR 424.12(b), in determining which areas within the geographical
                area occupied by the species at the time of listing to designate as
                critical habitat, we consider the physical or biological features that
                are essential to the conservation of the species and which may require
                special management considerations or protection. The regulations at 50
                CFR 424.02 define ``physical or biological features essential to the
                conservation of the species'' as the features that occur in specific
                areas and that are essential to support the life-history needs of the
                species, including, but not limited to, water characteristics, soil
                type, geological features, sites, 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. For example, physical features might
                include gravel of a particular size required for spawning, alkali soil
                for seed germination, protective cover for migration, or susceptibility
                to flooding or fire that maintains necessary early-successional habitat
                characteristics. Biological features might include prey species, forage
                grasses, specific kinds or ages of trees for roosting or nesting,
                symbiotic fungi, or a particular level of nonnative species consistent
                with conservation needs of the listed species. The features may also be
                combinations of habitat characteristics and may encompass the
                relationship between characteristics or the necessary amount of a
                characteristic needed to support the life history of the species. In
                considering whether features are essential to the conservation of the
                species, the Service may consider an appropriate quality, quantity, and
                spatial and temporal arrangement of habitat characteristics in the
                context of the life-history needs, condition, and status of the
                species. These include, but are not limited to:
                 (1) Space for individual and population growth and for normal
                behavior;
                 (2) Food, water, air, light, minerals, or other nutritional or
                physiological requirements;
                 (3) Cover or shelter;
                 (4) Sites for breeding, reproduction, or rearing (or development)
                of offspring; and
                 (5) Habitats that are protected from disturbance or are
                representative of the historical, geographical, and ecological
                distributions of a species.
                 We derive the specific physical or biological features essential
                for slenderclaw crayfish from studies of this species' and similar
                crayfish species' habitat, ecology, and life history. The primary
                habitat elements that influence resiliency of the slenderclaw crayfish
                include water quantity, water quality, substrate, interstitial space,
                and habitat connectivity. More detail of the habitat and resource needs
                are summarized in the Habitat section of the proposed listing
                designation of critical habitat rule for the slenderclaw crayfish (83
                FR 50582; October 9, 2018) and the SSA report. We use the ADEM water
                quality standards for fish and wildlife criteria to determine the
                minimum standards of water quality necessary for the slenderclaw
                crayfish. A full description of the needs of individuals, populations,
                and the species is available from the SSA report; the resource needs of
                individuals are summarized below in Table 1.
                 Table 1--Resource Needs for Slenderclaw Crayfish To Complete Each Life
                 Stage
                ------------------------------------------------------------------------
                 Life stage Resources needed
                ------------------------------------------------------------------------
                Fertilized Eggs................... Female to carry eggs.
                 Water to oxygenate eggs.
                 Female to fan eggs to
                 prevent sediment buildup and
                 oxygenate water as needed.
                 Female to shelter in
                 boulder/cobble substrate and
                 available interstitial space.
                Juveniles......................... Female to carry juveniles
                 in early stage.
                 Water.
                 Food (likely aquatic
                 macroinvertebrates).
                 Boulder/cobble substrate
                 and available interstitial space
                 for shelter.
                Adults............................ Water.
                 Food (likely omnivorous,
                 opportunistic, and generalist
                 feeders).
                 Boulder/cobble substrate
                 and available interstitial space
                 for shelter.
                ------------------------------------------------------------------------
                Summary of Essential Physical or Biological Features
                 In summary, we derive the specific physical or biological features
                essential to the conservation of the slenderclaw crayfish from studies
                of this species' and similar crayfish species' habitat, ecology, and
                life history, as described above. Additional information can be found
                in the SSA report (Service 2019, entire) available on http://www.regulations.gov under Docket No. FWS-R4-ES-2018-0069. We have
                determined that the following physical or biological features are
                essential to the conservation of the slenderclaw crayfish:
                 (1) Geomorphically stable, small to medium, flowing streams:
                 (a) That are typically 19.8 feet (ft) (6 meters (m)) wide or
                smaller;
                 (b) With attributes ranging from:
                 (i) Streams with predominantly large boulders and fractured
                bedrock, with widths from 16.4 to 19.7 ft (5 to 6 m), low to no
                turbidity, and depths up to 2.3 ft (0.7 m), to
                 (ii) Streams dominated by small substrate types with a mix of
                cobble, gravel, and sand, with widths of approximately 9.8 feet (3 m),
                low to no turbidity, and depths up to 0.5 feet (0.15 m);
                 (c) With substrate consisting of boulder and cobble containing
                abundant interstitial spaces for sheltering and breeding; and
                 (d) With intact riparian cover to maintain stream morphology and to
                reduce erosion and sediment inputs.
                 (2) Seasonal water flows, or a hydrologic flow regime (which
                includes the severity, frequency, duration, and seasonality of
                discharge over time),
                [[Page 50274]]
                necessary to maintain benthic habitats where the species is found and
                to maintain connectivity of streams with the floodplain, allowing the
                exchange of nutrients and sediment for maintenance of the crayfish's
                habitat and food availability.
                 (3) Appropriate water and sediment quality (including, but not
                limited to, conductivity; hardness; turbidity; temperature; pH; and
                minimal levels of ammonia, heavy metals, pesticides, animal waste
                products, and nitrogen, phosphorus, and potassium fertilizers)
                necessary to sustain natural physiological processes for normal
                behavior, growth, and viability of all life stages.
                 (4) Prey base of aquatic macroinvertebrates and detritus. Prey
                items may include, but are not limited to, insect larvae, snails and
                their eggs, fish and their eggs, and plant and animal detritus.
                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. The features essential to the conservation of the
                slenderclaw crayfish may require special management considerations or
                protections to reduce the following threats: (1) Impacts from invasive
                species, including the nonnative virile crayfish; (2) nutrient
                pollution from agricultural activities that impact water quantity and
                quality; (3) significant alteration of water quality and water
                quantity, including conversion of streams to impounded areas; (4)
                culvert and pipe installation that creates barriers to movement; and
                (5) other watershed and floodplain disturbances that release sediments
                or nutrients into the water.
                 Management activities that could ameliorate these threats include,
                but are not limited to: Control and removal of introduced invasive
                species; limiting the spreading of poultry litter to time periods of
                dry, stable weather conditions; use of best management practices
                designed to reduce sedimentation, erosion, and bank side destruction;
                protection of riparian corridors and retention of sufficient canopy
                cover along banks; moderation of surface and ground water withdrawals
                to maintain natural flow regimes; and reduction of other watershed and
                floodplain disturbances that release sediments, pollutants, or
                nutrients into the water.
                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 slenderclaw crayfish is much
                reduced from its historical distribution in one (Short Creek watershed)
                of the two populations. The currently occupied sites in the Short Creek
                watershed occur in a single tributary (Shoal Creek), and one
                catastrophic event could impact this entire population. In addition,
                the nonnative virile crayfish occupies sites within the Short Creek
                watershed, including the type locality for the slenderclaw crayfish in
                Short Creek in which the slenderclaw crayfish no longer occurs. We
                anticipate that recovery will require continued protection of existing
                populations and habitat, as well as establishing sites in additional
                streams that more closely approximate its historical distribution in
                order to ensure there are adequate numbers of crayfish in stable
                populations and that these populations have multiple sites occurring in
                at least two streams within each watershed. This goal will help ensure
                that catastrophic events, such as a chemical spill, cannot
                simultaneously affect all known populations.
                 Sources of data for this critical habitat designation include
                numerous survey reports on streams throughout the species' range and
                databases maintained by crayfish experts and universities (Bouchard and
                Hobbs 1976, entire; Bearden 2017, unpublished data; Schuster 2017,
                unpublished data; Taylor 2017, unpublished data; Service 2018, entire).
                We have also reviewed available information that pertains to the
                habitat requirements of this species. Sources of information on habitat
                requirements include surveys conducted at occupied sites and published
                in agency reports, and data collected during monitoring efforts.
                Areas Occupied at the Time of Listing
                 For locations within the geographic area occupied by the species at
                the time of listing, we identified stream channels that currently
                support populations of the slenderclaw crayfish. We defined ``current''
                as stream channels with observations of the species from 2009 to the
                present. Due to the recent breadth and intensity of survey efforts for
                the slenderclaw crayfish throughout the historical range of the
                species, it is reasonable to assume that streams with no positive
                surveys since 2009 should not be considered occupied for the purpose of
                our analysis. Within these areas, we delineated critical habitat unit
                boundaries using the following process:
                 We evaluated habitat suitability of stream channels within the
                geographical area occupied at the time of listing, and retained for
                further consideration those streams that contain one or more of the
                physical or biological features to support life-history functions
                essential to conservation of the species. We refined the starting and
                ending points of units by evaluating the presence or absence of
                appropriate physical or biological features. We selected the headwaters
                as upstream cutoff points for each stream and downstream cutoff points
                that omit areas that are not suitable habitat. For example, the
                Guntersville Lake Tennessee Valley Authority project boundary was
                selected as an endpoint for one unit, as there was a change to
                unsuitable parameters (e.g., impounded waters).
                 Based on this analysis, the following streams meet criteria for
                areas occupied by the species at the time of listing: Bengis Creek,
                Scarham Creek, Shoal Creek, Short Creek, Town Creek, and Whippoorwill
                Creek (see Unit Descriptions, below). This list does not include all
                stream segments known to have been occupied by the species
                historically; rather, it includes only the occupied stream segments
                within the historical range that have also retained one or more of the
                physical or biological features that will allow for the maintenance and
                expansion of existing populations.
                Areas Outside the Geographical Area Occupied at the Time of Listing
                 To consider for designation areas not occupied by the species at
                the time of listing, we must demonstrate that these areas are essential
                for the conservation of the species. To determine if these areas are
                essential for the conservation of the slenderclaw crayfish, we
                considered the life history, status, habitat elements, and conservation
                needs of the species such as:
                 (1) The importance of the stream to the overall status of the
                species, the importance of the stream to the prevention of extinction,
                and the
                [[Page 50275]]
                stream's contribution to future recovery of the slenderclaw crayfish;
                 (2) whether the area is and could be maintained or restored to
                contain the necessary habitat (water quantity, substrate, interstitial
                space, and connectivity) to support the slenderclaw crayfish;
                 (3) whether the site provides connectivity between occupied sites
                for genetic exchange;
                 (4) whether a population of the species could be reestablished in
                the location; and
                 (5) whether the virile crayfish is currently present in the stream.
                 For the one subunit containing areas outside the geographical area
                occupied by the species at the time of listing, we delineated critical
                habitat unit boundaries by evaluating stream segments not known to have
                been occupied at listing (i.e., outside of the geographical area
                occupied by the species) but that are within the historical range of
                the species to determine if they are essential for the survival and
                recovery of the species. Essential areas are those that:
                 (a) Expand the geographical distribution within areas not occupied
                at the time of listing across the historical range of the species;
                 (b) Were determined to be of suitable habitat and contain the
                primary habitat elements (water quantity, substrate, interstitial
                space, and connectivity) that support the viability of the slenderclaw
                crayfish; and
                 (c) Are connected to other occupied areas, which will enhance
                genetic exchange between populations.
                 Based on this analysis, Scarham-Laurel Creek was identified as
                meeting the criteria for areas outside the geographical area occupied
                at the time of listing that are essential for the conservation of the
                species (see Subunit 2b unit description below).
                General Information on the Maps of the Critical Habitat Designation
                 When determining critical habitat boundaries, we made every effort
                to avoid including developed areas such as lands covered by buildings,
                pavement, and other structures because such lands lack physical or
                biological features necessary for slenderclaw crayfish. 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 final rule have been
                excluded by text in the rule and are not included for designation as
                critical habitat. Therefore, a Federal action involving these lands
                would not trigger section 7 consultation under the Act 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.
                 We are designating critical habitat in areas within the
                geographical area occupied by the species at the time of listing. We
                also are designating areas outside the geographical area occupied by
                the species at the time of listing that were historically occupied but
                are presently unoccupied, because we have determined that such areas
                are essential for the conservation of the species (see description of
                Subunit 2b below for explanation).
                 The two occupied units were designated based on one or more of the
                elements of physical or biological features being present to support
                slenderclaw crayfish life processes. Some stream segments within the
                units contained all of the identified elements of physical or
                biological features and supported multiple life processes. Some stream
                segments contained only some elements of the physical or biological
                features necessary to support the slenderclaw crayfish's particular use
                of that habitat.
                 The critical habitat designation is defined by the map or 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 discussion
                of individual units below. We will make the coordinates or plot points
                or both on which each map is based available to the public on http://www.regulations.gov under Docket No. FWS-R4-ES-2018-0069, and at the
                field office responsible for the designation (see FOR FURTHER
                INFORMATION CONTACT, above).
                Final Critical Habitat Designation
                 We are designating approximately 78 river mi (126 river km) in two
                units as critical habitat for the slenderclaw crayfish. The critical
                habitat areas, described below, constitute our current best assessment
                of areas that meet the definition of critical habitat for the
                slenderclaw crayfish. The two units are: (1) Town Creek Unit, and (2)
                Short Creek Unit. Unit 2 is subdivided into two subunits: (2a) Shoal
                Creek and Short Creek subunit, and (2b) Scarham-Laurel Creek subunit.
                Table 2 shows the name, occupancy of the unit, land ownership of the
                riparian areas surrounding the units, and approximate river miles of
                the designated critical habitat units for the slenderclaw crayfish.
                 Table 2--Designated Critical Habitat Units for the Slenderclaw Crayfish
                ----------------------------------------------------------------------------------------------------------------
                 Length of unit
                 Stream(s) Occupied at the time of Ownership in river miles
                 listing (kilometers)
                ----------------------------------------------------------------------------------------------------------------
                 Unit 1--Town Creek
                ----------------------------------------------------------------------------------------------------------------
                Bengis and Town Creeks.................. Yes....................... Private................... 42 (67)
                ----------------------------------------------------------------------------------------------------------------
                 Unit 2--Short Creek
                ----------------------------------------------------------------------------------------------------------------
                Subunit 2a--Shoal Creek and Short Creek:
                 Scarham, Shoal, Short, and Yes....................... Private................... 10 (17)
                 Whippoorwill Creeks.
                Subunit 2b--Scarham-Laurel Creek:
                 Scarham-Laurel Creek................ No........................ Private................... 26 (42)
                 Total........................... .......................... .......................... 78 (126)
                ----------------------------------------------------------------------------------------------------------------
                Note: Area sizes may not sum due to rounding.
                [[Page 50276]]
                 We present brief descriptions of all units, and reasons why they
                meet the definition of critical habitat for the slenderclaw crayfish,
                below.
                Unit 1: Town Creek
                 Unit 1 consists of 41.8 river mi (67.2 river km) of Bengis and Town
                creeks in DeKalb County, Alabama. Unit 1 includes stream habitat up to
                bank full height, consisting of the headwaters of Bengis Creek to its
                confluence with Town Creek and upstream to the headwaters of Town
                Creek. Stream channels in and lands adjacent to Unit 1 are privately
                owned except for bridge crossings and road easements, which are owned
                by the State and County. The slenderclaw crayfish occupies all stream
                reaches in this unit, and the unit currently supports all breeding,
                feeding, and sheltering needs essential to the conservation of the
                slenderclaw crayfish.
                 Special management considerations or protection may be required for
                control and removal of introduced invasive species, including the
                nonnative virile crayfish, which occupies the boulder and cobble
                habitats and interstitial spaces within these habitats that the
                slenderclaw crayfish needs. At present, the virile crayfish is not
                present in this unit, although it has been documented just outside the
                watershed boundary. However, based on future projections in the SSA
                report, the virile crayfish is expected to be present in the Town Creek
                watershed within the next 2 years.
                 In addition, special management considerations or protection may be
                required to address water withdrawals and drought as well as excess
                nutrients, sediment, and pollutants that enter the streams and serve as
                indicators of other forms of pollution, such as bacteria and toxins. A
                primary source of these types of pollution is agricultural runoff.
                However, during recent survey efforts for the slenderclaw crayfish,
                water quality analysis found lead measurements in Bengis Creek that
                exceeded the acute and chronic aquatic life criteria set by EPA and
                ADEM, and elevated ammonia concentrations in Town Creek. Special
                management or protection may include moderating surface and ground
                water withdrawals, using best management practices to reduce
                sedimentation, and reducing watershed and floodplain disturbances that
                release pollutants and nutrients into the water.
                Unit 2: Short Creek
                 Subunit 2a--Shoal Creek and Short Creek: Subunit 2a consists of
                10.3 river mi (16.6 river km) of Scarham, Shoal, Short, and
                Whippoorwill Creeks in DeKalb and Marshall Counties, Alabama. Subunit
                2a includes stream habitat up to bank full height, consisting of the
                headwaters of Shoal Creek to its confluence with Whippoorwill Creek,
                Whippoorwill Creek to its confluence with Scarham Creek, Scarham Creek
                to its confluence with Short Creek, and Short Creek downstream to the
                Guntersville Lake Tennessee Valley Authority project boundary. Stream
                channels in and lands adjacent to subunit 2a are privately owned except
                for bridge crossings and road easements, which are owned by the State
                and Counties. The slenderclaw crayfish occupies all stream reaches in
                this unit, and the unit currently supports all breeding, feeding, and
                sheltering needs essential to the conservation of the slenderclaw
                crayfish.
                 Special management considerations or protection may be required for
                control and removal of introduced invasive species, including the
                virile crayfish (see Unit 1 discussion, above). At present, the virile
                crayfish is present at sites in Short Creek and Drum Creek within the
                Short Creek watershed and just outside of the unit boundary in
                Guntersville Lake. Based on future projections in the SSA report, the
                virile crayfish is expected to be present in more tributaries within
                the Short Creek watershed within the next 2 to 5 years.
                 In addition, special management considerations or protection may be
                required to address water withdrawals and drought as well as excess
                nutrients, sediment, and pollutants that enter the streams and serve as
                indicators of other forms of pollution such as bacteria and toxins. A
                primary source of these types of pollution is agricultural runoff.
                During recent survey efforts for the slenderclaw crayfish, water
                quality analysis indicated that impaired water quality due to
                nutrients, bacteria, and levels of atrazine may be of concern in the
                Short Creek watershed. Special management or protection may include
                moderating surface and ground water withdrawals, using best management
                practices to reduce sedimentation, and reducing watershed and
                floodplain disturbances that release pollutants and nutrients into the
                water.
                 Subunit 2b--Scarham-Laurel Creek: Subunit 2b consists of 25.9 river
                mi (41.7 river km) of Scarham-Laurel Creek in DeKalb and Marshall
                Counties, Alabama. Subunit 2b includes stream habitat up to bank full
                height, consisting of the headwaters of Scarham-Laurel Creek to its
                confluence with Short Creek. Stream channels in and lands adjacent to
                Subunit 2b are privately owned except for bridge crossings and road
                easements, which are owned by the State and Counties. The subunit is
                connected to Subunit 2a.
                 This subunit is unoccupied by the species but is considered to be
                essential for the conservation of the species. Scarham-Laurel Creek is
                within the historical range of the slenderclaw crayfish but is not
                within the geographical range occupied by the species at the time of
                listing. The slenderclaw crayfish has not been documented at sites in
                Scarham-Laurel Creek in over 40 years, and we presume those
                historically occupied sites to be extirpated. Scarham-Laurel Creek is a
                small to medium, flowing stream with substrate consisting of boulder
                and cobble containing interstitial spaces for sheltering and breeding.
                Although it is currently unoccupied, this subunit contains some or all
                of the physical or biological features necessary for the conservation
                of the slenderclaw crayfish. This subunit possesses characteristics as
                described by physical or biological feature 1 (geomorphically stable,
                small to medium, flowing streams with substrate consisting of boulder
                and cobble and intact riparian cover); physical or biological feature 2
                (seasonal water flows, or a hydrologic flow regime, necessary to
                maintain benthic habitats where the species is found and to maintain
                connectivity of streams); and physical or biological feature 4 (prey
                base of aquatic macroinvertebrates and detritus). Physical or
                biological feature 3 (appropriate water and sediment quality) is
                degraded in this subunit, and with appropriate management and
                restoration actions, this feature can be restored.
                 In terms of water quality, Scarham-Laurel Creek is in restorable
                condition, and is currently devoid of the virile crayfish. Water
                quality concerns have been documented within Scarham-Laurel Creek,
                causing it to be listed on Alabama's 303(d) list of impaired waters for
                impacts from pesticides, siltation, ammonia, low dissolved oxygen/
                organic enrichment, and pathogens from agricultural sources in 1998
                (ADEM 1996, p. 1). In 2004, Scarham Creek was removed from the 303(d)
                list after TMDLs were established (ADEM 2002, p. 5); however, recent
                water quality analysis indicated that water quality was impaired within
                the Short Creek watershed in which Scarham-Laurel Creek is located
                (Bearden et al. 2017, p. 32). When the water quality of Scarham-Laurel
                Creek is restored, the stream could be an area for population expansion
                within the Short Creek watershed, in that this subunit is
                [[Page 50277]]
                connected to the occupied Shoal Creek and Short Creek subunit, and
                thereby provide redundancy needed to support the species' recovery.
                Therefore, we conclude that this stream is essential for the
                conservation of the slenderclaw crayfish, because it will provide
                habitat for population expansion in known historical habitat that is
                necessary to increase viability of the species by increasing its
                resiliency, redundancy, and representation.
                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 geographical 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 final
                critical habitat designation.
                Exclusions
                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 she determines
                that the benefits of such exclusion outweigh the benefits of specifying
                such area as part of the critical habitat, unless she 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.
                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. In order to consider economic impacts, we prepared
                an incremental effects memorandum (IEM) and screening analysis which
                together with our narrative and interpretation of effects we consider
                our draft economic analysis (DEA) of the proposed critical habitat
                designation and related factors (IEc 2018, entire). The analysis, dated
                June 29, 2018, addressed probable economic impacts of critical habitat
                designation for the slenderclaw crayfish. The DEA was made available
                for public review from October 9, 2018, through December 10, 2018
                (Industrial Economics, Inc. (IEc) 2018, entire), but we did not receive
                any comments on the draft DEA. Additional information relevant to the
                probable incremental economic impacts of critical habitat designation
                for the slenderclaw crayfish is summarized below and available in the
                screening analysis for the slenderclaw crayfish (IEc 2018, entire),
                available at http://www.regulations.gov.
                 The final critical habitat designation for the slenderclaw crayfish
                totals approximately 78 river mi (126 river km), which includes both
                occupied and unoccupied streams. This final critical habitat
                designation is likely to result, annually, in a maximum of three
                informal section 7 consultations and five technical assistance efforts
                at a total incremental cost of less than $10,000 per year. Within the
                occupied streams, any actions that may affect the species would likely
                also affect critical habitat, and it is unlikely that any additional
                conservation efforts would be required to address the adverse
                modification standard over and above those recommended as necessary to
                avoid jeopardizing the continued existence of the species. Within all
                unoccupied critical habitat, the Service will consult with Federal
                agencies on any projects that occur within the hydrologic unit code
                (HUC) 12-digit watershed boundaries, due to overlap with the ranges of
                other listed species such as Indiana bat (Myotis sodalis), gray bat
                (Myotis grisescens), northern long-eared bat (Myotis septentrionalis),
                harperella (Ptilimnium nodosum), and green pitcher-plant (Sarracenia
                oreophila) in these HUCs. In addition, all of the HUC 12-digit
                watershed boundaries containing unoccupied habitat are within the HUC
                12-digit range of watersheds occupied by slenderclaw crayfish. Thus, no
                incremental project modifications resulting solely from the presence of
                unoccupied critical habitat are anticipated. Therefore, the only
                additional costs that are expected in all of the critical habitat
                designation are administrative costs, due to the fact that this
                additional analysis will require time and resources by both the Federal
                action agency and the Service.
                Exclusions Based on Economic Impacts
                 As discussed above, the Service considered the economic impacts of
                the critical habitat designation and the Secretary is not exercising
                her discretion to exclude any areas from this designation of critical
                habitat for the slenderclaw crayfish based on economic impacts. A copy
                of the IEM and screening analysis with supporting documents may be
                obtained by contacting the Alabama Ecological Services Field Office
                (see ADDRESSES) or by downloading from the internet at http://www.regulations.gov.
                Exclusions Based on Impacts on National Security and Homeland Security
                 Section 4(a)(3)(B)(i) of the Act may not cover all Department of
                Defense (DoD) lands or areas that pose potential national-security
                concerns (e.g., a DoD installation that is in the process of revising
                its INRMP for a newly listed species or a species previously not
                covered). If a particular area is not covered under section
                4(a)(3)(B)(i), national-security or homeland-security concerns are not
                a factor in the process of determining what areas meet the definition
                of ``critical habitat.'' Nevertheless, when designating critical
                habitat under section 4(b)(2) of the Act, the Service must consider
                impacts on national security, including homeland security, on lands or
                areas not covered by section 4(a)(3)(B)(i) of the Act. Accordingly, we
                will always consider for exclusion from the designation areas for which
                DoD, Department of Homeland Security (DHS), or another Federal agency
                has requested exclusion based on an assertion of national-security or
                homeland-security concerns. However, no lands within the designation of
                critical habitat for slenderclaw crayfish are owned or managed by DoD
                or DHS. Consequently, the Secretary is not exercising her discretion to
                exclude any areas from the final designation based on impacts on
                national security.
                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 there are
                permitted conservation plans covering the species in the area, such as
                habitat conservation plans, safe harbor agreements, or candidate
                conservation agreements with assurances, or whether there are non-
                permitted conservation agreements and
                [[Page 50278]]
                partnerships that would be encouraged by designation of, or exclusion
                from, critical habitat. In addition, we look at the existence of Tribal
                conservation plans and partnerships 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 final rule, we have determined that there are
                currently no permitted conservation plans or other non-permitted
                conservation agreements or partnerships for the slenderclaw crayfish,
                and the final critical habitat designation does not include any Tribal
                lands or trust resources. We anticipate no impact on Tribal lands,
                partnerships, permitted or non-permitted plans, or agreements from this
                critical habitat designation. Accordingly, the Secretary is not
                exercising her discretion to exclude any areas from the final
                designation based on other relevant impacts.
                Effects of Critical Habitat Designation
                Section 7 Consultation
                 Section 7(a) of the Act requires Federal agencies to evaluate their
                actions with respect to critical habitat of any species that is listed
                as an endangered or threatened species. Regulations implementing this
                interagency cooperation provision of the Act are codified at 50 CFR
                part 402. 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 result in the destruction or adverse
                modification of designated critical habitat of any listed 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 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 45020).
                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' 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 Clean Water Act (33 U.S.C. 1251 et seq.) 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, authorized, or carried out
                by a Federal agency--do not require section 7 consultation.
                 Compliance with the requirements of section 7(a)(2) of the Act is
                documented through our issuance of:
                 (1) A concurrence letter for Federal actions that may affect, but
                are not likely to adversely affect, critical habitat; or
                 (2) A biological opinion for Federal actions that may affect, and
                are likely to adversely affect, critical habitat.
                 When we issue a biological opinion concluding that a project is
                likely to 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 destruction or adverse
                modification of critical habitat. We define ``reasonable and prudent
                alternatives'' (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 Service Director's opinion, 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 set forth requirements for Federal
                agencies to reinitiate formal consultation on previously reviewed
                actions. These requirements apply when the Federal agency has retained
                discretionary involvement or control over the action (or the agency's
                discretionary involvement or control is authorized by law) and,
                subsequent to the previous consultation, we have listed a new species
                or designated critical habitat that may be affected by the Federal
                action, or the action has been modified in a manner that affects the
                species or critical habitat in a way not considered in the previous
                consultation. In such situations, Federal agencies sometimes may need
                to request reinitiation of consultation with us, but the regulations
                also specify some exceptions to the requirement to reinitiate
                consultation on specific land management plans after subsequently
                listing a new species or designating new critical habitat. See the
                regulations for a description of those exceptions.
                Application of the ``Adverse Modification'' Standard
                 The key factor related to the destruction or adverse modification
                determination is whether implementation of the proposed Federal action
                directly or indirectly alters the designated critical habitat in a way
                that appreciably diminishes the value of the critical habitat as a
                whole for the conservation of the listed species. As discussed above,
                the role of critical habitat is to support 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 the Services may find are likely to destroy or
                adversely modify critical habitat, during a consultation under section
                7(a)(2) of the Act, include, but are not limited to:
                 (1) Actions that would alter the minimum flow or the existing flow
                regime. Such activities could include, but are not limited to,
                impoundment, channelization, water diversion, and water withdrawal.
                These activities could eliminate or reduce the habitat necessary for
                the growth and reproduction of the slenderclaw crayfish by decreasing
                or altering seasonal flows to levels that would adversely affect the
                species' ability to complete its life cycle.
                 (2) Actions that would significantly alter water chemistry or
                quality. Such activities could include, but are not limited to, release
                of chemicals (including pharmaceuticals, metals, and salts) or
                biological pollutants into the surface water or connected groundwater
                at a point source or by dispersed release (non-point source). These
                activities could alter water conditions to levels that are beyond the
                tolerances of the slenderclaw crayfish and result in direct
                [[Page 50279]]
                or cumulative adverse effects to these individuals and their life
                cycles.
                 (3) Actions that would significantly increase sediment deposition
                within the stream channel. Such activities could include, but are not
                limited to, excessive sedimentation from livestock grazing, road
                construction, channel alteration, poor forestry management, off-road
                vehicle use, and other watershed and floodplain disturbances. These
                activities could eliminate or reduce the habitat necessary for the
                growth and reproduction of the slenderclaw crayfish by increasing the
                sediment deposition to levels that would adversely affect the species'
                ability to complete its life cycle.
                 (4) Actions that would significantly increase eutrophic conditions.
                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 (non-point source). These activities can
                result in excessive nutrients and algae filling streams and reducing
                habitat for the slenderclaw crayfish, degrading water quality from
                excessive nutrients and during algae decay, and decreasing oxygen
                levels to levels below the tolerances of the slenderclaw crayfish.
                 (5) Actions that would significantly alter channel morphology or
                geometry or decrease connectivity. Such activities could include, but
                are not limited to, channelization, impoundment, road and bridge
                construction, mining, dredging, and destruction of riparian vegetation.
                These activities may lead to changes in water flows and levels that
                would degrade or eliminate the slenderclaw crayfish and its habitats.
                These actions can also lead to increased sedimentation and degradation
                in water quality to levels that are beyond the tolerances of the
                slenderclaw crayfish.
                 (6) Actions that result in the introduction, spread, or
                augmentation of nonnative aquatic species in occupied stream segments,
                or in stream segments that are hydrologically connected to occupied
                stream segments, or introduction of other species that compete with or
                prey on the slenderclaw crayfish. Possible actions could include, but
                are not limited to, stocking of nonnative crayfishes and fishes,
                stocking of sport fish, or other related actions. These activities can
                introduce parasites or disease; result in direct predation or direct
                competition; or affect the growth, reproduction, and survival of the
                slenderclaw crayfish.
                Required Determinations
                Regulatory Planning and Review (Executive Orders 12866 and 13563)
                 Executive Order 12866 provides that the Office of Information and
                Regulatory Affairs 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.
                 Executive Order 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, are 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 would be directly regulated by this designation. There
                is no requirement under RFA to evaluate the potential impacts to
                entities not directly regulated. Moreover, Federal agencies are not
                small entities. Therefore, because no small entities would be directly
                regulated by this rulemaking, the Service certifies that the final
                critical habitat designation will not have a significant economic
                impact on a substantial number of small entities.
                 During the development of this final rule we reviewed and evaluated
                all information submitted during the comment period that may pertain to
                our consideration of the probable incremental economic impacts of this
                critical habitat designation. Based on this information, we affirm our
                certification that this final critical habitat designation will not
                have a
                [[Page 50280]]
                significant economic impact on a substantial number of small entities,
                and a 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. OMB has provided guidance for implementing this
                Executive Order that outlines nine outcomes that may constitute ``a
                significant adverse effect'' when compared to not taking the regulatory
                action under consideration. The economic analysis finds that none of
                these criteria are relevant to this analysis. Thus, based on
                information in the economic analysis, energy-related impacts associated
                with slenderclaw crayfish conservation activities within critical
                habitat are not expected. As such, the designation of critical habitat
                is not expected to significantly affect energy supplies, distribution,
                or use. Therefore, this action is not a significant energy action, and
                no Statement of Energy Effects is required.
                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 would not produce a Federal mandate. In general, a
                Federal mandate is a provision in legislation, statute, or regulation
                that would impose an enforceable duty upon State, local, or tribal
                governments, or the private sector, and includes both ``Federal
                intergovernmental mandates'' and ``Federal private sector mandates.''
                These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
                intergovernmental mandate'' includes a regulation that ``would impose
                an enforceable duty upon State, local, or tribal governments'' with two
                exceptions. It excludes ``a condition of Federal assistance.'' It also
                excludes ``a duty arising from participation in a voluntary Federal
                program,'' unless the regulation ``relates to a then-existing Federal
                program under which $500,000,000 or more is provided annually to State,
                local, and Tribal governments under entitlement authority,'' if the
                provision would ``increase the stringency of conditions of assistance''
                or ``place caps upon, or otherwise decrease, the Federal Government's
                responsibility to provide funding,'' and the State, local, or Tribal
                governments ``lack authority'' to adjust accordingly. At the time of
                enactment, these entitlement programs were: Medicaid; 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 conclude that this rule would not significantly or uniquely
                affect small governments because the lands within and adjacent to the
                streams being designated as critical habitat are owned by private
                landowners. These government entities do not fit the definition of
                ``small governmental jurisdiction.'' Consequently, we conclude that the
                critical habitat designation would not significantly or uniquely affect
                small government entities. 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 slenderclaw crayfish 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 slenderclaw
                crayfish 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 rule does not have
                significant federalism effects. A federalism summary impact statement
                is not required. In keeping with Department of the Interior and
                Department of Commerce policy, we requested information from, and
                coordinated development of the proposed critical habitat designation
                with, the appropriate State resource agency in Alabama. We did not
                receive comments from Alabama. 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 State, or on the relationship
                between the National Government and the State, 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
                [[Page 50281]]
                Federal agency for actions that may affect critical habitat,
                consultation under section 7(a)(2) of the Act 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 are designating critical
                habitat in accordance with the provisions of the Act. To assist the
                public in understanding the habitat needs of the species, this 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 the Office of Management and Budget under the
                Paperwork Reduction Act of 1995. 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.)
                 We have determined that environmental assessments and environmental
                impact statements, as defined under the authority of the National
                Environmental Policy Act (NEPA), need not be prepared in connection
                with listing a species as an endangered or threatened species under the
                Act. We published a notice outlining our reasons for this determination
                in the Federal Register on October 25, 1983 (48 FR 49244).
                 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 NEPA in connection with designating
                critical habitat under the Act. We published a notice outlining 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. We have identified no Tribal interests
                that will be affected by this final rulemaking.
                References Cited
                 A complete list of references cited in the SSA report and this
                rulemaking is available on the internet at http://www.regulations.gov
                under Docket No. FWS-R4-ES-2018-0069 and upon request from the Alabama
                Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).
                Authors
                 The primary authors of this final rule are the staff members of the
                U.S. Fish and Wildlife Service Species Assessment Team and Alabama
                Ecological Services Field Office.
                List of Subjects in 50 CFR Part 17
                 Endangered and threatened species, Exports, Imports, Reporting and
                recordkeeping requirements, Transportation.
                Regulation Promulgation
                 Accordingly, we 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. Amend Sec. 17.11(h) by adding an entry for ``Crayfish,
                slenderclaw'' to the List of Endangered and Threatened Wildlife in
                alphabetical order under Crustaceans to read as follows:
                Sec. 17.11 Endangered and threatened wildlife.
                * * * * *
                 (h) * * *
                ----------------------------------------------------------------------------------------------------------------
                 Listing citations and
                 Common name Scientific name Where listed Status applicable rules
                ----------------------------------------------------------------------------------------------------------------
                
                 * * * * * * *
                 Crustaceans
                
                 * * * * * * *
                Crayfish, slenderclaw........... Cambarus cracens.. Wherever found.... E 86 FR [INSERT FEDERAL
                 REGISTER PAGE WHERE
                 THE DOCUMENT BEGINS],
                 9/8/21; 50 CFR
                 17.95(h)\CH\.
                
                 * * * * * * *
                ----------------------------------------------------------------------------------------------------------------
                0
                3. Amend Sec. 17.95(h) by adding an entry for ``Slenderclaw Crayfish
                (Cambarus cracens)'' after the entry for ``Pecos Amphipod (Gammarus
                pecos)'' to read as follows:
                Sec. 17.95 Critical habitat--fish and wildlife.
                * * * * *
                 (h) * * *
                [[Page 50282]]
                Slenderclaw Crayfish (Cambarus cracens)
                 (1) Critical habitat units are depicted for DeKalb and Marshall
                Counties, Alabama, on the maps in this entry.
                 (2) Within these areas, the physical or biological features
                essential to the conservation of the slenderclaw crayfish consist of
                the following components:
                 (i) Geomorphically stable, small to medium, flowing streams:
                 (A) That are typically 19.8 feet (ft) (6 meters (m)) wide or
                smaller;
                 (B) With attributes ranging from:
                 (1) Streams with predominantly large boulders and fractured
                bedrock, with widths from 16.4 to 19.7 ft (5 to 6 m), low to no
                turbidity, and depths up to 2.3 ft (0.7 m); to
                 (2) Streams dominated by small substrate types with a mix of
                cobble, gravel, and sand, with widths of approximately 9.8 feet (3 m),
                low to no turbidity, and depths up to 0.5 feet (0.15 m);
                 (C) With substrate consisting of boulder and cobble containing
                abundant interstitial spaces for sheltering and breeding; and
                 (D) With intact riparian cover to maintain stream morphology and to
                reduce erosion and sediment inputs.
                 (ii) Seasonal water flows, or a hydrologic flow regime (which
                includes the severity, frequency, duration, and seasonality of
                discharge over time), necessary to maintain benthic habitats where the
                species is found and to maintain connectivity of streams with the
                floodplain, allowing the exchange of nutrients and sediment for
                maintenance of the crayfish's habitat and food availability.
                 (iii) Appropriate water and sediment quality (including, but not
                limited to, conductivity; hardness; turbidity; temperature; pH; and
                minimal levels of ammonia, heavy metals, pesticides, animal waste
                products, and nitrogen, phosphorus, and potassium fertilizers)
                necessary to sustain natural physiological processes for normal
                behavior, growth, and viability of all life stages.
                 (iv) Prey base of aquatic macroinvertebrates and detritus. Prey
                items may include, but are not limited to, insect larvae, snails and
                their eggs, fish and their eggs, and plant and animal detritus.
                 (3) Critical habitat does not include manmade structures (such as
                buildings, aqueducts, runways, roads, and other paved areas) and the
                land on which they are located existing within the legal boundaries on
                October 8, 2021.
                 (4) Data layers defining map units were created using Universal
                Transverse Mercator (UTM) Zone 16N coordinates and species' occurrence
                data. The hydrologic data used in the maps were extracted from U.S.
                Geological Survey National Hydrography Dataset High Resolution
                (1:24,000 scale) using Geographic Coordinate System North American 1983
                coordinates. The maps in this entry, as modified by any accompanying
                regulatory text, establish the boundaries of the critical habitat
                designation. The coordinates or plot points or both on which each map
                is based are available to the public at http://www.regulations.gov
                under Docket No. FWS-R4-ES-2018-0069 and at the field office
                responsible for this designation. You may obtain field office location
                information by contacting one of the Service regional offices, the
                addresses of which are listed at 50 CFR 2.2.
                 (5) Note: Index map follows:
                BILLING CODE 4333-15-P
                [[Page 50283]]
                [GRAPHIC] [TIFF OMITTED] TR08SE21.000
                 (6) Unit 1: Town Creek, DeKalb County, Alabama.
                 (i) This unit consists of 41.8 river miles (67.2 river kilometers)
                of occupied habitat in Bengis and Town Creeks. Unit 1 includes stream
                habitat up to bank full height consisting of the headwaters of Bengis
                Creek to its confluence with Town Creek and upstream to the headwaters
                of Town Creek.
                 (ii) Map of Unit 1 follows:
                [[Page 50284]]
                [GRAPHIC] [TIFF OMITTED] TR08SE21.001
                 (7) Unit 2: Short Creek, DeKalb and Marshall Counties, Alabama.
                 (i) Subunit 2a: Shoal Creek and Short Creek, DeKalb and Marshall
                Counties, Alabama.
                 (A) This subunit consists of 10.3 river miles (16.6 river
                kilometers) of occupied habitat in Scarham, Shoal, Short, and
                Whippoorwill Creeks. Subunit 2a includes stream habitat up to bank full
                height consisting of the headwaters of Shoal Creek to its confluence
                with Whippoorwill Creek, Whippoorwill Creek to its confluence with
                Scarham Creek, Scarham Creek to its confluence with Short Creek, and
                Short Creek to its downstream extent to the Guntersville Lake Tennessee
                Valley Authority project boundary.
                 (B) Map of Subunit 2a follows:
                [[Page 50285]]
                [GRAPHIC] [TIFF OMITTED] TR08SE21.002
                 (ii) Subunit 2b: Scarham-Laurel Creek, DeKalb and Marshall
                Counties, Alabama.
                 (A) This subunit consists of 25.9 river miles (41.7 river
                kilometers) of unoccupied habitat in Scarham-Laurel Creek. Subunit 2b
                includes stream habitat up to bank full height consisting of the
                headwaters of Scarham-Laurel Creek to its confluence with Whippoorwill
                Creek. This subunit is a small to medium, flowing stream with substrate
                consisting of boulder and cobble containing interstitial spaces for
                sheltering and breeding and connected to the occupied subunit 2a.
                 (B) Map of Subunit 2b follows:
                [[Page 50286]]
                [GRAPHIC] [TIFF OMITTED] TR08SE21.003
                [[Page 50287]]
                * * * * *
                Martha Williams,
                Principal Deputy Director, Exercising the Delegated Authority of the
                Director, U.S. Fish and Wildlife Service.
                [FR Doc. 2021-19093 Filed 9-7-21; 8:45 am]
                BILLING CODE 4333-15-C
                

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