Proposed Rule2021-11966
Endangered and Threatened Wildlife and Plants; Designating Texas Hornshell Critical Habitat
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
June 10, 2021
Issuing agencies
Interior DepartmentFish and Wildlife Service
Abstract
We, the U.S. Fish and Wildlife Service (Service), propose to designate critical habitat for the Texas hornshell (Popenaias popeii), a freshwater mussel, under the Endangered Species Act (Act). In total, the proposed critical habitat designation includes approximately 463.6 river miles (745.9 kilometers) in Eddy County, New Mexico, and in Culberson, Brewster, Terrell, Val Verde, Kinney, Maverick, and Webb Counties, Texas. If we finalize this rule as proposed, it would extend the Act's protections to this species' critical habitat. The effect of this regulation is to designate critical habitat for the Texas hornshell under the Act. We also announce the availability of a draft economic analysis of the proposed designation of critical habitat. We also are notifying the public that we have scheduled an informational meeting followed by a public hearing on the proposed rule.
Full Text
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[Federal Register Volume 86, Number 110 (Thursday, June 10, 2021)]
[Proposed Rules]
[Pages 30888-30909]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-11966]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R2-ES-2018-0021; FF09E21000 FXES11110900000 212]
RIN 1018-BD55
Endangered and Threatened Wildlife and Plants; Designating Texas
Hornshell Critical Habitat
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
designate critical habitat for the Texas hornshell (Popenaias popeii),
a freshwater mussel, under the Endangered Species Act (Act). In total,
the proposed critical habitat designation includes approximately 463.6
river miles (745.9 kilometers) in Eddy County, New Mexico, and in
Culberson, Brewster, Terrell, Val Verde, Kinney, Maverick, and Webb
Counties, Texas. If we finalize this rule as proposed, it would extend
the Act's protections to this species' critical habitat. The effect of
this regulation is to designate critical habitat for the Texas
hornshell under the Act. We also announce the availability of a draft
economic analysis of the proposed designation of critical habitat. We
also are notifying the public that we have scheduled an informational
meeting followed by a public hearing on the proposed rule.
DATES:
Comment submission: We will accept comments on this proposed rule
or draft economic analysis that are received or postmarked on or before
August 9, 2021. Comments submitted electronically using the Federal
eRulemaking Portal (see ADDRESSES below) must be received by 11:59 p.m.
Eastern Time on the closing date.
Public informational meeting and public hearing: We will hold a
public informational session from 5:00 p.m. to 6:00 p.m., Mountain
Time, followed by a public hearing from 6:30 p.m. to 8:30 p.m.,
Mountain Time, on June 29, 2021.
ADDRESSES:
Comment submission: You may submit comments on the proposed rule or
draft economic analysis by one of the following methods:
(1) Electronically: Go to the Federal eRulemaking Portal: <a href="http://www.regulations.gov">http://www.regulations.gov</a>. In the Search box, enter FWS-R2-ES-2018-0021 to
find this proposed rule. You may submit a comment by clicking on
``Comment Now!''
(2) By hard copy: Submit by U.S. mail to: Public Comments
Processing, Attn: FWS-R2-ES-2018-0021; U.S. Fish and Wildlife Service
Headquarters, MS: BPHC, 5275 Leesburg Pike, Falls Church, VA 22041-
3803.
We request that you send comments only by the methods described
above. We will post all comments on <a href="http://www.regulations.gov">http://www.regulations.gov</a>. This
generally means that we will post any personal information you provide
us (see the Information Requested section below for more information).
Public informational meeting and public hearing: The public
informational meeting and the public hearing will be held virtually
using the Zoom platform. See Public Hearing, below, for more
information.
Document availability: The draft economic analysis is available at
<a href="https://www.fws.gov/southwest/es/TexasCoastal/">https://www.fws.gov/southwest/es/TexasCoastal/</a>, at <a href="http://www.regulations.gov">http://www.regulations.gov</a> in Docket No. FWS-R2-ES-2018-0021, and at the Texas
Coastal 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 <a href="https://www.fws.gov/southwest/es/TexasCoastal/">https://www.fws.gov/southwest/es/TexasCoastal/</a>, at <a href="http://www.regulations.gov">http://www.regulations.gov</a> in Docket No. FWS-R2-
ES-2018-0021, and at the Texas Coastal Ecological Services Field Office
(see FOR FURTHER INFORMATION CONTACT). Any additional tools or
supporting information that we may develop 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 of the
final rule and/or at <a href="http://www.regulations.gov">http://www.regulations.gov</a>.
FOR FURTHER INFORMATION CONTACT: Chuck Ardizzone, U.S. Fish and
Wildlife Service, Texas Coastal Ecological Services Field Office, 17629
El Camino Real #211, Houston, TX 77058; by telephone 281-286-8282; or
by facsimile 281-488-5882. 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 Endangered Species Act,
critical habitat must be designated, to the maximum extent prudent and
determinable, for all species determined to be endangered or
threatened. The Lists of Endangered and Threatened Wildlife and Plants
are in title 50 of the Code of Federal Regulations (CFR) in part 17 (50
CFR 17.11(h) for wildlife and 50 CFR 17.12(h) for plants). Designations
and revisions of critical habitat can only be completed by issuing a
rule.
What this document does. This document proposes the designation of
critical habitat for the Texas hornshell and announces the availability
of the draft economic analysis. The Texas hornshell has been listed as
an endangered species under the Act. This rule proposes designation of
critical habitat necessary for the conservation of the species.
The basis for our action. Under the Endangered Species Act, any
species that is determined to be a threatened or endangered species
shall, to the maximum extent prudent and determinable, have habitat
designated that is considered to be critical habitat. Section 4(b)(2)
of the Endangered Species 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, the impact on national security, and any other relevant impact
of specifying any particular area as critical habitat. The Secretary
may exclude an area from critical habitat if he determines that the
benefits of such exclusion outweigh the benefits of specifying such
area as part of the critical habitat, unless he determines, based on
the best scientific data available, that the failure to designate such
area as critical habitat will result in the extinction of the species.
Supporting analyses. We prepared an analysis of the economic
impacts of the proposed critical habitat designation and hereby
announce the availability of the draft economic analysis for public
review and comment.
Our species status assessment report (SSA report) documents the
results of the comprehensive biological status review for the Texas
hornshell and provides an account of the species' overall viability
through forecasting of the species' condition in the future (Service
2018, entire). Additionally, the SSA report contains our analysis of
required habitat and the existing conditions of that habitat.
Peer review. We sought comments from independent specialists on the
SSA report to ensure that our critical habitat proposal is based on
scientifically sound data and analyses. We received feedback from four
scientists with expertise in freshwater mussel biology, ecology, and
genetics as peer review of the SSA report. The reviewers were generally
supportive of
[[Page 30889]]
our approach and made suggestions and comments that strengthened our
analysis. We incorporated these comments into the SSA report, which can
be found at <a href="http://www.regulations.gov">http://www.regulations.gov</a> under Docket No. FWS-R2-ES-2018-
0021.
Information Requested
We intend that any final action resulting from this proposed rule
will be based on the best scientific data available and be as accurate
and as effective as possible. Therefore, we request comments or
information from other concerned government agencies, the scientific
community, industry, or any other interested party concerning this
proposed rule. Because we will consider all comments and information
received during the comment period, our final determinations may differ
from this proposal.
We particularly seek comments concerning:
(1) The reasons why we should or should not designate habitat as
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et
seq.) including information to inform the following factors such that a
designation of critical habitat may be determined to be not prudent:
(a) The species is threatened by taking or other human activity and
identification of critical habitat can be expected to increase the
degree of such threat to the species;
(b) The present or threatened destruction, modification, or
curtailment of a species' habitat or range is not a threat to the
species, or threats to the species' habitat stem solely from causes
that cannot be addressed through management actions resulting from
consultations under section 7(a)(2) of the Act;
(c) Areas within the jurisdiction of the United States provide no
more than negligible conservation value, if any, for a species
occurring primarily outside the jurisdiction of the United States;
(d) No areas meet the definition of critical habitat.
(2) Specific information on:
(a) The amount and distribution of Texas hornshell habitat;
(b) What areas that were occupied at the time of listing and that
contain the physical or biological features essential to the
conservation of the species should be included in the designation and
why;
(c) Special management considerations or protection that may be
needed in critical habitat areas we are proposing, including managing
for the potential effects of climate change; and
(d) What areas not occupied at the time of listing are essential
for the conservation of the species. We particularly seek comments
regarding:
(i) Whether occupied areas are inadequate for the conservation of
the species; and,
(ii) Specific information that supports the determination that
unoccupied areas will, with reasonable certainty, contribute to the
conservation of the species and, contain at least one physical or
biological feature essential to the conservation of the species.
(3) Land use designations and current or planned activities in the
subject areas and their possible impacts on proposed critical habitat.
(4) Information on the projected and reasonably likely impacts of
climate change on the Texas hornshell and proposed critical habitat.
(5) Any probable economic, national security, or other relevant
impacts of designating any area that may be included in the final
designation, and the benefits of including or excluding areas that may
be impacted.
(6) Information on the extent to which the description of probable
economic impacts in the draft economic analysis is a reasonable
estimate of the likely economic impacts.
(7) Whether any specific areas we are proposing for critical
habitat designation should be considered for exclusion under section
4(b)(2) of the Act, and whether the benefits of potentially excluding
any specific area outweigh the benefits of including that area under
section 4(b)(2) of the Act, in particular for those covered by the
Candidate Conservation Agreement (CCA) and Candidate Conservation
Agreement with Assurances (CCAA) for the Texas hornshell in the Black
and Delaware Rivers in New Mexico and Texas.
(8) Whether any lands should be considered for exclusion under
section 4(b)(2) of the Act for national security reasons, whether such
exclusion is or is not appropriate, and whether the benefits of
excluding any specific area outweigh the benefits of including that
area as critical habitat and why.
(9) Whether lands owned by the Kickapoo Indian Reservation of Texas
should be considered for exclusion under section 4(b)(2) of the Act,
whether such exclusion is or is not appropriate, and whether the
benefits of excluding any specific area outweigh the benefits of
including that area as critical habitat and why.
(10) The likelihood of adverse social reactions to the designation
of critical habitat, as discussed in the associated documents of the
draft economic analysis, and how the consequences of such reactions, if
likely to occur, would relate to the conservation and regulatory
benefits of the proposed critical habitat designation.
(11) Whether we could improve or modify our approach to designating
critical habitat in any way to provide for greater public participation
and understanding, or to better accommodate public concerns and
comments.
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in ADDRESSES. We request that you
send comments only by the methods described in ADDRESSES.
All comments submitted electronically via <a href="http://www.regulations.gov">http://www.regulations.gov</a> will be presented on the website in their entirety
as submitted. For comments submitted via hard copy, we will post your
entire comment--including your personal identifying information--on
<a href="http://www.regulations.gov">http://www.regulations.gov</a>. You may request at the top of your document
that we withhold personal information such as your street address,
phone number, or email address from public review; however, we cannot
guarantee that we will be able to do so.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection on <a href="http://www.regulations.gov">http://www.regulations.gov</a>.
Previous Federal Actions
All previous Federal actions are described in the final rule
listing the Texas hornshell as an endangered species under the Act
published in the Federal Register on February 9, 2018 (83 FR 5720).
Critical Habitat
Background
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
[[Page 30890]]
Our regulations at 50 CFR 424.02 define the geographical area
occupied by the species as: An area that may generally be delineated
around species' occurrences, as determined by the Secretary (i.e.,
range). Such areas may include those areas used throughout all or part
of the species' life cycle, even if not used on a regular basis (e.g.,
migratory corridors, seasonal habitats, and habitats used periodically,
but not solely by vagrant individuals).
Conservation, as defined under section 3 of the Act, means to use
and the use of all methods and procedures that are necessary to bring
an endangered or threatened species to the point at which the measures
provided pursuant to the Act are no longer necessary. Such methods and
procedures include, but are not limited to, all activities associated
with scientific resources management such as research, census, law
enforcement, habitat acquisition and maintenance, propagation, live
trapping, and transplantation, and, in the extraordinary case where
population pressures within a given ecosystem cannot be otherwise
relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the requirement that Federal agencies ensure, in consultation
with the Service, that any action they authorize, fund, or carry out is
not likely to result in the destruction or adverse modification of
critical habitat. The designation of critical habitat does not affect
land ownership or establish a refuge, wilderness, reserve, preserve, or
other conservation area. Such designation does not allow the government
or public to access private lands. Such designation does not require
implementation of restoration, recovery, or enhancement measures by
non-Federal landowners. Where a landowner requests Federal agency
funding or authorization for an action that may affect a listed species
or critical habitat, the consultation requirements of section 7(a)(2)
of the Act would apply, but even in the event of a destruction or
adverse modification finding, the obligation of the Federal action
agency and the landowner is not to restore or recover the species, but
to implement reasonable and prudent alternatives to avoid destruction
or adverse modification of critical habitat.
Under the first prong of the Act's definition of critical habitat,
areas within the geographical area occupied by the species at the time
it was listed are included in a critical habitat designation if they
contain physical or biological features (1) Which are essential to the
conservation of the species and (2) which may require special
management considerations or protection. For these areas, critical
habitat designations identify, to the extent known using the best
scientific and commercial data available, those physical or biological
features that are essential to the conservation of the species (such as
space, food, cover, and protected habitat). In identifying those
physical or biological features that occur in specific areas, we focus
on the specific features that are essential to support the life-history
needs of the species, including but not limited to, water
characteristics, soil type, geological features, prey, vegetation,
symbiotic species, or other features. A feature may be a single habitat
characteristic, or a more complex combination of habitat
characteristics. Features may include habitat characteristics that
support ephemeral or dynamic habitat conditions. Features may also be
expressed in terms relating to principles of conservation biology, such
as patch size, distribution distances, and connectivity.
Under the second prong of the Act's definition of critical habitat,
we can designate critical habitat in areas outside the geographical
area occupied by the species at the time it is listed, upon a
determination that such areas are essential for the conservation of the
species. When designating critical habitat, the Secretary will first
evaluate areas occupied by the species. The Secretary will only
consider unoccupied areas to be essential where a critical habitat
designation limited to geographical areas occupied by the species would
be inadequate to ensure the conservation of the species. In addition,
for an unoccupied area to be considered essential, the Secretary must
determine that there is a reasonable certainty both that the area will
contribute to the conservation of the species and that the area
contains one or more of those physical or biological features essential
to the conservation of the species.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific data available. Further, our Policy on
Information Standards Under the Endangered Species Act (published in
the Federal Register on July 1, 1994 (59 FR 34271)), the Information
Quality Act (section 515 of the Treasury and General Government
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)),
and our associated Information Quality Guidelines, provide criteria,
establish procedures, and provide guidance to ensure that our decisions
are based on the best scientific data available. They require our
biologists, to the extent consistent with the Act and with the use of
the best scientific data available, to use primary and original sources
of information as the basis for recommendations to designate critical
habitat.
When we are determining which areas should be designated as
critical habitat, our primary source of information is generally the
information 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 findings that the action jeopardizes the continued existence
of the species 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
[[Page 30891]]
available at the time of these planning efforts calls for a different
outcome.
Habitat Outside the United States
Within the identified geographical area occupied at the time of
listing (see below, Areas Occupied at the Time of Listing), the habitat
areas used by the species are in Texas, New Mexico, and Mexico. Because
we do not designate as critical habitat areas outside the United States
(50 CFR 424.12(g)), we did not examine areas on the Mexican side of the
Rio Grande; the critical habitat extends only as far into the river as
the United States' jurisdictional boundary, i.e., to the middle of the
river. However, conservation of habitat that meets the conditions
described in this designation in Mexico may be important to recovery of
the species.
Prudency Determination
Section 4(a)(3) of the Act, as amended, and implementing
regulations (50 CFR 424.12), require that, to the maximum extent
prudent and determinable, the Secretary shall designate critical
habitat at the time the species is determined to be an endangered or
threatened species. Our regulations (50 CFR 424.12(a)(1)) state that
the Secretary may, but is not required to, determine that a designation
would not be prudent in the following circumstances:
(i) The species is threatened by taking or other human activity and
identification of critical habitat can be expected to increase the
degree of such threat to the species;
(ii) The present or threatened destruction, modification, or
curtailment of a species' habitat or range is not a threat to the
species, or threats to the species' habitat stem solely from causes
that cannot be addressed through management actions resulting from
consultations under section 7(a)(2) of the Act;
(iii) Areas within the jurisdiction of the United States provide no
more than negligible conservation value, if any, for a species
occurring primarily outside the jurisdiction of the United States;
(iv) No areas meet the definition of critical habitat; or
(v) The Secretary otherwise determines that designation of critical
habitat would not be prudent based on the best scientific data
available.
We did not identify any of the factors above to apply to the Texas
hornshell. Therefore, we find designation of critical habitat is
prudent for the species.
Critical Habitat Determinability
Having determined that designation is prudent, under section
4(a)(3) of the Act we must find whether critical habitat for the Texas
hornshell is determinable. Our regulations at 50 CFR 424.12(a)(2) state
that critical habitat is not determinable when one or both of the
following situations exist:
(i) Data sufficient to perform required analyses are lacking, or
(ii) The biological needs of the species are not sufficiently well
known to identify any area that meets the definition of ``critical
habitat.''
When critical habitat is not determinable, the Act allows the
Service an additional year to publish a critical habitat designation
(16 U.S.C. 1533(b)(6)(C)(ii)).
At the time of our August 10, 2016, proposed rule to list the
species, we found that critical habitat was not determinable due to
insufficient knowledge of the biological needs of the species. We have
continued to review the available information related to the Texas
hornshell and newly acquired information necessary to perform this
assessment, and we reviewed the available information pertaining to the
biological needs of the species and habitat characteristics where this
species is located. We examined collection reports and occupancy models
for the Texas hornshell (Randklev et al. 2017, entire). Additionally,
we prepared a draft economic analysis. This and other information
represent the best scientific data available and led us to conclude
that the designation of critical habitat is determinable for the Texas
hornshell.
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, alkaline
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 characteristics include, but are not
limited to space for individual and population growth and for normal
behavior; food, water, air, light, minerals, or other nutritional or
physiological requirements; cover or shelter; sites for breeding,
reproduction, or rearing (or development) of offspring; and habitats
that are protected from disturbance.
Space for Individual and Population Growth and for Normal Behavior
Most freshwater mussels, including Texas hornshell, are found in
aggregations, called mussel beds, that vary in size from about 50 to
greater than 5,000 square meters (m\2\), separated by stream reaches in
which mussels are absent or rare (Vaughn 2012, p. 983). Texas hornshell
larvae (called glochidia) are parasites that must attach to a host fish
(generally river carpsucker (Carpiodes carpio), grey redhorse
(Moxostoma congestum), and red shiner (Cyprinella lutrensis)). A
population of Texas hornshell incorporates more than one mussel bed; it
is the collection of mussel beds within a stream reach between which
infested host fish may travel, allowing for ebbs and flows in mussel
bed density and abundance over time throughout the population's
occupied reach. Therefore, resilient
[[Page 30892]]
Texas hornshell populations must occupy stream reaches long enough so
that stochastic events that affect individual mussel beds do not
eliminate the entire population. Repopulation by infested host fish
from other mussel beds within the reach can allow the population to
recover from these events. Longer stream reaches are more likely to
support populations of Texas hornshell into the future than shorter
stream reaches. Therefore, we determine that long stream reaches are an
important component of a riverine system with habitat to support all
life stages of Texas hornshell.
Texas hornshell need flowing water for survival. They are not found
in lakes or in pools without flow, or in areas that are regularly
dewatered. River reaches with continuous flow support all life stages
of Texas hornshell, while those with little or no flow do not. Flow
rates needed by the species will vary depending on river size,
location, and substrate type.
Additionally, Texas hornshell occur in flow refuges such as
crevices, undercut riverbanks, travertine shelves, and large boulders.
These refuges must have seams of clay or other fine sediments within
which the mussels may anchor, but not so much excess sediment that the
mussels are smothered. Those areas with clean-swept substrate
(substrate not covered in sediment) with seams of fine sediments in
crevices are suitable Texas hornshell habitat, as well as habitat for
their host fish.
Physiological Requirements: Water Quality Requirements
Freshwater mussels, as a group, are sensitive to changes in water
quality parameters such as dissolved oxygen, salinity, ammonia, and
pollutants. Habitats with appropriate levels of these parameters are
considered suitable, while those habitats with levels outside of the
appropriate ranges are considered less suitable. We have used
information available for other species of freshwater mussels to inform
the needs of Texas hornshell. Juvenile freshwater mussels are
particularly susceptible to low dissolved oxygen levels. Juveniles will
reduce feeding behavior when dissolved oxygen is between 2-4 milligrams
per liter (mg/L), and mortality has been shown to occur at dissolved
oxygen levels below 1.3 mg/L. Additionally, Texas hornshell will die at
salinity levels of 7 parts per thousand (ppt) for more than several
weeks (Lang 2001, pp. 10-11). Juvenile mussels of other species have
been shown to experience complete mortality after 7 days at salinity
levels greater than 4 ppt (Blakeslee et al. 2013, p. 2851)
The release of pollutants into streams from point and nonpoint
sources have immediate impacts on water quality conditions and may make
environments unsuitable for habitation by mussels. Early life stages of
freshwater mussels are some of the most sensitive organisms of all
species to ammonia and copper (Naimo 1995, pp. 351-352; Augsperger et
al. 2007, p. 2025). Additionally, sublethal effects of contaminants
over time can result in reduced feeding efficiency, reduced growth,
decreased reproduction, changes in enzyme activity, and behavioral
changes to all mussel life stages. Even wastewater discharges with low
ammonia levels have been shown to negatively affect mussel populations.
Therefore, we determine that stream reaches with the following water
quality parameters are suitable for Texas hornshell:
<bullet> Low salinity (less than 0.9 ppt)
<bullet> Low ammonia (less than 0.7 mg/L)
<bullet> Low levels of contaminants
<bullet> Dissolved oxygen levels within substrate greater than 1.3 mg/
L.
Sites for Development of Offspring
As discussed above, Texas hornshell larvae are parasites that must
attach to a host fish to develop into juvenile mussels. Texas hornshell
primarily use river carpsucker, gray redhorse, and red shiner as hosts.
The river carpsucker and red shiner are widespread throughout the Texas
hornshell's occupied range (Hubbs 1990, pp. 90-91; Levine et al. 2012,
p. 1857). The presence of these fish species, either singly or in
combination, supports the life-history needs of the Texas hornshell.
Summary of Essential Physical or Biological Features
We derive the specific physical or biological features essential to
the conservation of the Texas hornshell from studies of this species'
habitat, ecology, and life history as described below. Additional
information can be found in the final listing rule published in the
Federal Register on February 9, 2018 (83 FR 5720), and the Species
Status Assessment for the Texas Hornshell (Service 2018, entire). We
have determined that the following physical or biological features are
essential to the conservation of the Texas hornshell:
A riverine system with habitat to support all life stages of the
Texas hornshell, which includes:
(a) Flowing water at rates high enough to support clean-swept
substrate but not so high as to dislodge individuals;
(b) Crevices beneath boulders, shelves, and within undercut banks
with seams of fine sediment;
(c) River carpsucker, red shiner, and gray redhorse present; and
(d) Water quality parameters within the following ranges:
(i) Salinity below 0.9 ppt;
(ii) Ammonia below 0.7 mg/L;
(iii) Low levels of contaminants; and
(iv) Dissolved oxygen levels within substrate greater than 1.3mg/L.
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 this species
may require special management considerations or protection to reduce
the following threats: Increased fine sediment, water quality
impairment, loss of flowing water, and barriers to fish movement.
Management activities that could ameliorate these threats and
protect the integrity of the stream ecosystem include restoring or
maintaining the natural hydrology of the stream, removing livestock
from Texas hornshell habitats, preventing chemical spills, and
appropriately maintaining bridges and other stream crossings to limit
sediment input.
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. We are not currently proposing to
designate any areas outside the geographical area occupied by the
species at the time of listing in February 2018.
The SSA report contains much of the information used to identify
critical habitat for Texas hornshell, which includes existing State
recovery plans, numerous survey reports on streams
[[Page 30893]]
throughout the species' range, and museum records of historical
locations (Service 2018).
Areas Occupied at the Time of Listing
The proposed critical habitat designation does not include all
streams known to have been occupied by the species historically;
instead, it focuses on occupied streams within the historical range
that have retained the necessary physical and biological features
(PBFs) that will allow for the maintenance and expansion of existing
populations. The following streams meet the definition of areas
occupied by the species at the time of listing: Black River, Delaware
River, Pecos River, Devils River, and Rio Grande. No developed areas
occur within the proposed designation except for road crossings of
streams, which do not remove the suitability of these areas for this
species, because habitat is still present.
In summary, for areas proposed as critical habitat, we delineated
critical habitat unit boundaries using the following criterion:
Evaluate habitat suitability of stream segments within the geographic
area occupied at the time of listing, and delineate those segments that
contain some or all of the PBFs to support life-history functions
essential for conservation of the species.
As a final step, we evaluated those occupied stream segments
identified through the above analysis and refined the starting and
ending points by evaluating the presence or absence of appropriate
PBFs. We selected upstream and downstream cutoff points to omit areas
that are highly degraded and are not likely to support the Texas
hornshell. For example, permanently dewatered areas or areas in which
there was a change to unsuitable parameters (e.g., water quality,
bedrock substrate) were used to mark the start or endpoint of a stream
segment proposed for designation. Critical habitat stream segments were
then mapped using ArcMap version 10 (Environmental Systems Research
Institute, Inc.), a Geographic Information Systems program.
The areas proposed for designation as critical habitat provide
sufficient stream habitat for adult Texas hornshell, as well as for the
habitat needs for juveniles and the fish species that serve as hosts
for the Texas hornshell's parasitic larvae. In general, the PBFs of
critical habitat are contained within the riverine ecosystem formed by
the channel at bankfull stage. Texas hornshell use the riverine
ecosystem for feeding, breeding, and sheltering.
When determining proposed 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 the Texas hornshell. The
scale of the maps we prepared under the parameters for publication
within the Code of Federal Regulations may not reflect the exclusion of
such developed lands. Any such lands inadvertently left inside critical
habitat boundaries shown on the maps of this proposed rule have been
excluded by text in the proposed rule and are not proposed for
designation as critical habitat. Therefore, if the critical habitat is
finalized as proposed, a Federal action involving these lands would not
trigger section 7 consultation with respect to critical habitat and the
requirement of no adverse modification unless the specific action would
affect the physical or biological features in the adjacent critical
habitat.
We are proposing for designation of critical habitat river miles
that we have determined were occupied at the time of listing and
contain one or more of the physical or biological features that are
essential to support life-history processes of the species.
The critical habitat designation is defined by the maps, as
modified by any accompanying regulatory text, presented at the end of
this document in the rule portion. We include more detailed information
on the boundaries of the critical habitat designation in the preamble
of this document. We will make the coordinates or plot points or both
on which each map is based available to the public on <a href="http://www.regulations.gov">http://www.regulations.gov</a> at Docket No. FWS-R2-ES-2017-0030, on our internet
site (<a href="https://www.fws.gov/southwest/es/TexasCoastal/">https://www.fws.gov/southwest/es/TexasCoastal/</a>), and at the field
office responsible for the designation (see FOR FURTHER INFORMATION
CONTACT above).
Proposed Critical Habitat Designation
We are proposing to designate 463.6 mi (745.9 km) in five units as
critical habitat for Texas hornshell. The critical habitat areas we
describe below constitute our current best assessment of areas that
meet the definition of critical habitat for Texas hornshell. The five
areas we propose as critical habitat are: (1) Pecos Tributary Unit; (2)
Pecos River Unit; (3) Devils River Unit; (4) Rio Grande--Lower Canyons
Unit; and (5) Rio Grande--Laredo Unit. Table 1 shows the occupancy of
the units, the land ownership, and approximate areas of the proposed
designated areas for the Texas hornshell.
Table 1--Occupancy, Land Ownership, and Size of Texas Hornshell Proposed Critical Habitat Units and Subunits
[BLM = Bureau of Land Management; NGO = non-governmental organization]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Occupancy at time of
Unit Subunit listing Current occupancy Riparian ownership Area
--------------------------------------------------------------------------------------------------------------------------------------------------------
1--Pecos Tributary................. 1a--Black River....... Occupied.............. Occupied............. Private.............. 9.7 mi (15.6 km).
1b--Delaware River.... Occupied.............. Occupied............. BLM, Private......... 31.1 mi (50.0 km).
2--Pecos River..................... ...................... Occupied.............. Occupied............. Private, Federal, NGO 85.7 mi (137.9 km).
3--Devils River.................... ...................... Occupied.............. Occupied............. Federal, Private, 33.0 mi (53.1 km).
NGO, State.
4--Rio Grande--Lower Canyons....... 4a--Lower Canyons Occupied.............. Occupied............. Federal, State....... 66.7 mi (107.3 km).
Reach.
4b--Langtry Reach..... Occupied.............. Occupied............. Private, Federal..... 46.5 mi (74.8 km).
5--Rio Grande--Laredo.............. 5a--Eagle Pass Reach.. Occupied.............. Occupied............. Private, City, Tribal 138.7 mi (223.2 km).
5b--Laredo Reach...... Occupied.............. Occupied............. Private, City........ 52.2 mi (84.0 km).
--------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 30894]]
We present brief descriptions of all units, and reasons why they
meet the definition of critical habitat for Texas hornshell, below.
Unit 1: Pecos Tributary Unit
Subunit 1a: Black River: Subunit 1a consists of 15.6 km (9.7 mi) in
private ownership in Eddy County, New Mexico. The Texas hornshell
occupies the entire stream in this subunit, and the subunit contains
all of the PBFs essential to the conservation of Texas hornshell. The
watershed of the Black River is characterized by rural ranching and
farming, as well as oil and gas development. Diverted river water and
groundwater are used for irrigation of farms and ranches as well as
hydraulic fracturing by oil and gas development operations (Bren School
of Environmental Management 2014, pp. 32, 130). Additionally, only a
few roads cross the Black River at low-water crossings; therefore,
traffic, including local and industrial, is concentrated in these
areas. The relatively short length of this reach renders the population
more susceptible to stochastic events. Consequently, special management
may be necessary to ensure perennial flow in the river, prevent
contaminant spills, and reduce livestock access to the river.
The Service has collaborated with water users, oil and gas
developers, landowners, and other partners to develop a Candidate
Conservation Agreement (CCA) and Candidate Conservation Agreements with
Assurances (CCAAs) for the species on State, Federal, and private
lands. The purpose of these agreements is to provide voluntary
conservation that would reduce threats to the species while improving
physical habitat and water quality. The key conservation measures in
the agreements are designed to limit oil and gas development to areas
outside of the Black and Delaware River floodplains, minimize erosion,
and maintain minimum water flows in the rivers. Along with these
measures, the partners to the agreement are evaluating alternatives to
the multiple low water crossings on the Black River. Partners are
considering alternate crossing locations that could include bridges
designed to allow host fishes to pass through in addition to decreasing
potential contamination events. We are considering excluding the
subunit under section 4(b)(2) of the Act if these agreements are
implemented in a manner sufficient to defray the need for additional
special management.
Subunit 1b: Delaware River: Subunit 1b consists of 50.0 km (31.1
mi) of occupied habitat in the Delaware River in Culberson County,
Texas, and Eddy County, New Mexico. Texas hornshell were historically
known from dead shells found within this subunit; the species was
likely extirpated due to lack of water. Habitat improvements undertaken
by the Bureau of Land Management (BLM) resulted in perennial flow
through the rehabilitated section of the Delaware River (BLM 2005, p.
1). A total of 126 adult Texas hornshell were reintroduced to the river
in New Mexico in 2014 and 2015. The reintroduced adults were recaptured
alive and the females were gravid (brooding larvae) in 2016, indicating
preliminary success. A spill of 11 barrels of oil and 18,000 barrels of
water that has been collected as a byproduct of oil and gas production
occurred upstream of the reintroduced individuals in August 2017; the
effects of this spill and the subsequent flooding has resulted in only
two of the reintroduced individuals still remaining in the Delaware
River. The New Mexico Department of Game and Fish plan to continue
their reintroduction efforts to ensure a diverse, reproducing
population persists in the river; successful freshwater mussel
reintroductions typically require multiple years of effort. Riparian
ownership consists of the BLM and private landowners. The BLM helped
restore perennial flow to the river through riparian management, and
now the reach contains all of the PBFs essential to the conservation of
Texas hornshell.
The Delaware River is included in the CCA/CCAA described in Subunit
1a; therefore, we are considering it for exclusion under section
4(b)(2) of the Act.
Unit 2: Pecos River Unit
This unit consists of 137.9 km (85.7 mi) in private, non-
governmental organization (NGO), and Federal ownership of the Pecos
River in Val Verde and Terrell Counties, Texas. This unit is occupied.
Three live Texas hornshell were collected from the Pecos River Unit in
2016, which, based on species survey efforts, indicates several other
living Texas hornshell were likely in the unit at that time. In
addition, the 2016 collection resulted in numerous shells of the Texas
hornshell (Bosman et al. 2016, p. 6; Randklev et al. 2016, p. 9), which
is further evidence that additional members of the species were in the
Pecos River. The live specimens collected in 2016 were very old, but we
have no indication that they were no longer occupying the Pecos River
at the time of listing. The direct evidence of multiple living
specimens of Texas hornshell in the Pecos River as recently as 2016,
along with the conclusion that other members of the species were likely
present at that time, allows us to conclude that the Pecos River Unit
was occupied at the time of listing. This unit contains some of the
PBFs essential to the conservation of Texas hornshell, such as flowing
water and adequate crevices, but salinity is relatively high in this
unit, compromising water quality. Special management may be necessary
to improve water quality in this reach.
Unit 3: Devils River Unit
This unit consists of 53.1 km (33.0 mi) of the Devils River in Val
Verde County, Texas. Riparian lands are primarily in private ownership,
including The Nature Conservancy (TNC), and both the Texas Parks and
Wildlife Department (TPWD) and the Federal Government owns portions of
these lands. Texas hornshell are historically known from the Devils
River and currently occupy the unit. The Devils River represents a
relatively intact watershed, with no dams, little development, and much
of it under conservation management. Texas hornshell sites are located
on Dolan Falls Preserve, which is 4,800 acres (ac) (1,943 hectares
(ha)) owned by TNC, as well as an additional 13,722 ac (5,553 ha)
managed under a conservation easement. TNC also owns Nix 2 Ranch
(87,000 ac (35,209 ha)), and TPWD owns the Devils River State Natural
Area (37,000 ac (15,000 ha)), resulting in conservation management of
much of the land along the river (TNC 2004, p. 9; TPWD 2016, p. 1). The
PBFs essential to the conservation of Texas hornshell are present in
the Devils River. Special management may be necessary to maintain
instream flows in the river.
Unit 4: Rio Grande--Lower Canyons
Subunit 4a: Lower Canyons Reach: This subunit consists of 107.3 km
(66.7 mi) of occupied habitat on the U.S. side of the Rio Grande in
Terrell and Brewster Counties, Texas. Most of this reach is part of the
Rio Grande Wild and Scenic River, owned by the United States and
managed by the National Park Service. A small portion of the subunit is
owned by the State of Texas. The PBFs essential to the conservation of
Texas hornshell are present in this subunit. It was designated a
National Wild and Scenic River in 1978 (Garrett and Edwards 2004, p.
396), which affords some protection from Federal development projects,
but does not limit State, local, or private development (National Wild
and Scenic Rivers System 2016, p. 1). Special management
[[Page 30895]]
may be necessary to maintain instream flows in the river.
Subunit 4b: Langtry Reach: This subunit consists of 74.8 km (46.5
mi) of the U.S. side of the Rio Grande in Terrell and Val Verde
Counties, Texas, most of which is also owned and managed by the
National Park Service. A small portion of this subunit is in private
ownership. This unit contains all of the PBFs and is connected to the
known population of Texas hornshell in Subunit 4a, but the remote
nature of this reach has prevented surveys. There are no instream
structures in Subunit 4b that would impede water flow; the flow regime
is the same as in Subunit 4a; and the host fish may move between the
subunits freely. Based on this information, it is reasonable to
conclude that that the population in Subunit 4a is unlikely to stop at
the most downstream survey location; therefore, we conclude this
subunit is occupied.
However, due to the lack of recent surveys, we are analyzing this
subunit against the second prong of the definition of critical habitat
for unoccupied habitat out of an abundance of caution. If Subunit 4b is
not, in fact, occupied, it would provide for needed growth and
expansion of the species in this portion of its historical range. The
longer the occupied reach, the more likely it is that the Texas
hornshell population can withstand stochastic events such as extreme
flooding, dewatering, or water contamination. Therefore, Subunit 4b is
essential for the conservation of the species.
Like Subunit 4a, this subunit is part of the Rio Grande Wild and
Scenic River, which affords some protection from Federal development
projects, but does not limit State, local, or private development
(National Wild and Scenic Rivers System 2016, p. 1). Special management
may be necessary to maintain instream flows in the river.
Unit 5: Rio Grande--Laredo
Subunit 5a: Eagle Pass Reach: This subunit consists of 223.2 km
(138.7 mi) of the U.S. side of the Rio Grande from Del Rio, Texas, to
upstream of the Laredo population of Texas hornshell in Kinney and
Maverick Counties, Texas. This subunit is primarily privately owned,
with small portions owned by the City of Eagle Pass and the Kickapoo
Tribe of Texas. We conclude that this reach was occupied at the time of
listing. This conclusion is based on the collection of two live
individuals near Del Rio between 2008 and 2011 (Karatayev et al. 2015,
p. 8). The immobility of Texas hornshell and the continued presence of
suitable habitat indicates the species remained in the area at the time
of listing. This reach includes all of the PBFs necessary to support
the continued existence of the species. Additionally, the hydrological
connection with Subunit 5b, which contains the largest known population
of Texas hornshell, allows for host fish movement between the subunits.
However, due to the lack of recent records, we are analyzing this
subunit against the second prong of the definition of critical habitat
for unoccupied habitat out of an abundance of caution. If Subunit 5a is
not occupied, it would provide for needed growth and expansion of the
species in this portion of its historical range. The longer the
occupied reach, the more likely it is that the Texas hornshell
population can withstand stochastic events such as extreme flooding,
dewatering, or water contamination. Therefore, Subunit 5a is essential
for the conservation of the species.
The Rio Grande in this subunit is heavily influenced by development
along the Texas-Mexico border, and the river has a high sediment load
in this reach (Texas Clean Rivers Program 2013, p. 9). Flows are
regulated by releases from Amistad Reservoir based on hydropower
generation and water deliveries for downstream irrigation needs (Texas
Water Development Board 2016, p. 1). Special management may be
necessary to improve water quality and reduce sedimentation.
Subunit 5b: Laredo Reach: This subunit consists of 84.0 km (52.2
mi) of the U.S. side of the Rio Grande upstream of Laredo in Webb
County, Texas, in private and city ownership. This subunit is occupied
and contains the largest known Texas hornshell population (Randklev et
al. 2015, p. 7). Like subunit 5a, this subunit is heavily influenced by
development along the Texas-Mexico border, and rapid human population
growth as well as industrialization on the Mexican side of the river
has stressed the existing wastewater treatment facilities, and Rio
Grande water quality is impaired as a result (Texas Clean Rivers
Program 2013, p. 7). All of the PBFs essential to the conservation of
Texas hornshell are found in this reach, although special management to
improve water quality may be necessary.
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that any action they fund, authorize, or carry out
is not likely to jeopardize the continued existence of any endangered
species or threatened species or result in the destruction or adverse
modification of designated critical habitat of such species. In
addition, section 7(a)(4) of the Act requires Federal agencies to
confer with the Service on any agency action that is likely to
jeopardize the continued existence of any species proposed to be listed
under the Act or result in the destruction or adverse modification of
proposed critical habitat.
We published a final regulation with a revised definition of
destruction or adverse modification on August 27, 2019 (84 FR 44976).
Destruction or adverse modification means a direct or indirect
alteration that appreciably diminishes the value of critical habitat as
a whole for the conservation of a listed species.
If a Federal action may affect a listed species or its critical
habitat, the responsible Federal agency (action agency) must enter into
consultation with us. Examples of actions that are subject to the
section 7 consultation process are actions on State, tribal, local, or
private lands that require a Federal permit (such as a permit from the
U.S. Army Corps of Engineers under section 404 of the 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.
As a result of section 7 consultation, we document compliance with
the requirements of section 7(a)(2) through our issuance of:
(1) A concurrence letter for Federal actions that may affect, but
are not likely to adversely affect, listed species or critical habitat;
or
(2) A biological opinion for Federal actions that may affect and
are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is
likely to jeopardize the continued existence of a listed species and/or
destroy or adversely modify critical habitat, we provide reasonable and
prudent alternatives to the project, if any are identifiable, that
would avoid the likelihood of jeopardy and/or destruction or adverse
modification of critical habitat. We define ``reasonable and prudent
alternatives'' (at 50 CFR
[[Page 30896]]
402.02) as alternative actions identified during consultation that:
(1) Can be implemented in a manner consistent with the intended
purpose of the action,
(2) Can be implemented consistent with the scope of the Federal
agency's legal authority and jurisdiction,
(3) Are economically and technologically feasible, and
(4) Would, in the Director's opinion, avoid the likelihood of
jeopardizing the continued existence of the listed species and/or avoid
the likelihood of destroying or adversely modifying critical habitat.
Reasonable and prudent alternatives can vary from slight project
modifications to extensive redesign or relocation of the project. Costs
associated with implementing a reasonable and prudent alternative are
similarly variable.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate
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 7(a)(2) of the Act by destroying or
adversely modifying such designation.
Activities that the Services may, during a consultation under
section 7(a)(2) of the Act, find are likely to destroy or adversely
modify critical habitat include, but are not limited to:
(1) Actions that would alter the existing flow regime. Such
activities could include, but are not limited to, impoundment, water
diversion, and water withdrawal. These activities could eliminate or
reduce the habitat necessary for the growth and reproduction of these
mussels.
(2) Actions that would significantly alter water chemistry or
temperature. Such activities could include, but are not limited to,
release of chemicals, biological pollutants, or heated effluents 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
mussels or their fish host and result in direct 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, and other watershed and floodplain
disturbances. These activities could eliminate or reduce the habitat
necessary for the growth and reproduction of these mussels and their
fish host by increasing the sediment deposition to levels that would
adversely affect their ability to complete their life cycles.
Exemptions
Application of Section 4(a)(3) of the Act
Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i))
provides that: ``The Secretary shall not designate as critical habitat
any lands or other geographic areas owned or controlled by the
Department of Defense, or designated for its use, that are subject to
an integrated natural resources management plan (INRMP) prepared under
section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary
determines in writing that such plan provides a benefit to the species
for which critical habitat is proposed for designation.'' There are no
Department of Defense lands within the proposed critical habitat
designation.
Consideration of Impacts Under Section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that the Secretary shall
designate and make revisions to critical habitat on the basis of the
best available scientific data after taking into consideration the
economic impact, national security impact, and any other relevant
impact of specifying any particular area as critical habitat. The
Secretary may exclude an area from critical habitat if he determines
that the benefits of such exclusion outweigh the benefits of specifying
such area as part of the critical habitat, unless he determines, based
on the best scientific data available, that the failure to designate
such area as critical habitat will result in the extinction of the
species. In making that determination, the statute on its face, as well
as the legislative history, are clear that the Secretary has broad
discretion regarding which factor(s) to use and how much weight to give
to any factor.
When identifying the benefits of inclusion for an area, we consider
the additional regulatory benefits that area would receive due to the
protection from destruction of adverse modification as a result of
actions with a Federal nexus; the educational benefits of mapping
essential habitat for recovery of the listed species; and any benefits
that may result from a designation due to State or Federal laws that
may apply to critical habitat. In the case of the Texas hornshell, the
benefits of critical habitat include public awareness of the presence
of the Texas hornshell and the importance of habitat protection, and,
where a Federal nexus exists, increased habitat protection for the
Texas hornshell due to protection from destruction or adverse
modification of critical habitat.
When considering the benefits of exclusion, we consider, among
other things, whether exclusion of a specific area is likely to result
in conservation or the continuation, strengthening, or encouragement of
partnerships. Continued implementation of an ongoing management plan
that provides equal to or more conservation than a critical habitat
designation would reduce the benefits of including that specific area
in the critical habitat designation.
We evaluate the existence of a conservation plan when considering
the benefits of inclusion. We consider a variety of factors, including
but not limited to, whether the plan is finalized; how it provides for
the conservation of the essential physical or biological features;
whether there is a reasonable expectation that the conservation
[[Page 30897]]
management strategies and actions contained in a management plan will
be implemented into the future; whether the conservation strategies in
the plan are likely to be effective; and whether the plan contains a
monitoring program or adaptive management to ensure that the
conservation measures are effective and can be adapted in the future in
response to new information.
After identifying the benefits of inclusion and the benefits of
exclusion, we carefully weigh the two sides to evaluate whether the
benefits of exclusion outweigh those of inclusion. If our analysis
indicates that the benefits of exclusion outweigh the benefits of
inclusion, we then determine whether exclusion would result in
extinction of the species. If exclusion of an area from critical
habitat will result in extinction, we will not exclude it from the
designation.
The final decision on whether to exclude any areas will be based on
the best scientific data available at the time of the final
designation, including information obtained during the comment period
and information about the economic impact of designation. Accordingly,
we have prepared a draft economic analysis concerning the proposed
critical habitat designation, which is available for review and comment
(see ADDRESSES).
Consideration of Economic Impacts
Section 4(b)(2) of the Act and its implementing regulations require
that we consider the economic impact that may result from a designation
of critical habitat. To assess the probable economic impacts of a
designation, we must first evaluate specific land uses or activities
and projects that may occur in the area of the critical habitat. We
then must evaluate the impacts that a specific critical habitat
designation may have on restricting or modifying specific land uses or
activities for the benefit of the species and its habitat within the
areas proposed. We then identify which conservation efforts may be the
result of the species being listed under the Act versus those
attributed solely to the designation of critical habitat for this
particular species.
The probable economic impact of a proposed critical habitat
designation is analyzed by comparing scenarios both ``with critical
habitat'' and ``without critical habitat.'' The ``without critical
habitat'' scenario represents the baseline for the analysis, which
includes the existing regulatory and socio-economic burden imposed on
landowners, managers, or other resource users potentially affected by
the designation of critical habitat (e.g., under the Federal listing as
well as other Federal, State, and local regulations). The baseline,
therefore, represents the costs of all efforts attributable to the
listing of the species under the Act (i.e., conservation of the species
and its habitat incurred regardless of whether critical habitat is
designated). The ``with critical habitat'' scenario describes the
incremental impacts associated specifically with the designation of
critical habitat for the species. The incremental conservation efforts
and associated impacts would not be expected without the designation of
critical habitat for the species. In other words, the incremental costs
are those attributable solely to the designation of critical habitat,
above and beyond the baseline costs. These are the costs we use when
evaluating the benefits of inclusion and exclusion of particular areas
from the final designation of critical habitat should we choose to
conduct a discretionary section 4(b)(2) exclusion analysis.
For this particular designation, we developed an Incremental
Effects Memorandum (IEM) considering the probable incremental economic
impacts that may result from this proposed designation of critical
habitat. The information contained in our IEM was then used to develop
a screening analysis of the probable effects of the designation of
critical habitat for the Texas hornshell (Industrial Economics, Inc.
2019).
We began by conducting a screening analysis of the proposed
designation of critical habitat in order to focus our analysis on the
key factors that are likely to result in incremental economic impacts.
The purpose of the screening analysis is to filter out the geographic
areas in which the critical habitat designation is unlikely to result
in probable incremental economic impacts. In particular, the screening
analysis considers baseline costs (i.e., absent critical habitat
designation) and includes probable economic impacts where land and
water use may be subject to conservation plans, land management plans,
best management practices, or regulations that protect the habitat area
as a result of the Federal listing status of the species. The screening
analysis filters out particular areas of critical habitat that are
already subject to such protections and are, therefore, unlikely to
incur incremental economic impacts. Ultimately, the screening analysis
allows us to focus our analysis on evaluating the specific areas or
sectors that may incur probable incremental economic impacts as a
result of the designation. The screening analysis also assesses whether
units that are unoccupied by the species may require additional
management or conservation efforts as a result of the critical habitat
designation, thereby possibly incurring incremental economic impacts.
This screening analysis combined with the information contained in our
IEM are what we consider our draft economic analysis of the proposed
critical habitat designation for the Texas hornshell, and this analysis
is summarized in the narrative below.
Executive Orders 12866 and 13563 direct Federal agencies to assess
the costs and benefits of available regulatory alternatives in
quantitative (to the extent feasible) and qualitative terms. Consistent
with the E.O. regulatory analysis requirements, our effects analysis
under the Act may take into consideration impacts to both directly and
indirectly affected entities, where practicable and reasonable. If
sufficient data are available, we assess to the extent practicable the
probable impacts to both directly and indirectly affected entities. As
part of our screening analysis, we considered the types of economic
activities that are likely to occur within the areas likely affected by
the critical habitat designation.
In our evaluation of the probable incremental economic impacts that
may result from the proposed designation of critical habitat for the
Texas hornshell, first we identified, in the IEM dated December 5,
2016, probable incremental economic impacts associated with the
following categories of activities: (1) Federal lands management
(National Park Service, Bureau of Land Management); (2) roadway and
bridge construction; (3) agriculture; (4) grazing; (5) groundwater
pumping; (6) in-stream dams and diversions; (7) oil and gas production;
and (8) border protection. We considered each industry or category
individually. Additionally, we considered whether their activities have
any Federal involvement. Critical habitat designation generally will
not affect activities that do not have any Federal involvement; under
the ESA, designation of critical habitat affects only activities
conducted, funded, permitted, or authorized by Federal agencies. In
areas where the Texas hornshell is present, Federal agencies already
are required to consult with the Service under section 7 of the Act on
activities they fund, permit, or implement that may affect the species.
If we finalize this proposed critical habitat designation,
consultations to avoid the destruction or adverse modification of
critical habitat would be incorporated into the existing consultation
process.
[[Page 30898]]
In our IEM, we attempted to clarify the distinction between the
effects that will result from the species being listed and those
attributable to the critical habitat designation (i.e., difference
between the jeopardy and adverse modification standards) for the Texas
hornshell's critical habitat. The Texas hornshell has not been listed
long enough for us to have conducted any section 7 consultations. It
has been our experience that, for such species, it is more difficult to
discern which conservation efforts are attributable to the species
being listed and which will result solely from the designation of
critical habitat. However, the following specific circumstances in this
case help to inform our evaluation: (1) The essential physical or
biological features identified for critical habitat are the same
features essential for the life requisites of the species and (2) any
actions that would result in sufficient harm or harassment to
constitute jeopardy to the Texas hornshell would also likely adversely
affect the essential physical or biological features of critical
habitat. The IEM outlines our rationale concerning this limited
distinction between baseline conservation efforts and incremental
impacts of the designation of critical habitat for this species. This
evaluation of the incremental effects has been used as the basis to
evaluate the probable incremental economic impacts of this proposed
designation of critical habitat.
The proposed critical habitat designation for the Texas hornshell
totals 463.6 mi (745.9 km) in five units, all of which were occupied at
the time of listing. However, two subunits--4b and 5a (comprising 40
percent of the proposed critical habitat designation)--have few records
of Texas hornshell and are so remote that we do not believe listing the
species made the public aware of its presence in these areas. As a
result, we do not expect section 7 consultations to be initiated in
these areas until additional awareness is brought to these areas when
they are designated as critical habitat. Therefore, while all units of
the proposed critical habitat were occupied at the time of listing, we
conducted an economic analysis that modeled Subunits 4b and 5a as
unoccupied so that we could more accurately represent the anticipated
increase in public awareness and cost of project modifications when
these areas are designated as critical habitat. As a result, our
economic effects analysis demonstrates the maximum economic effects of
the critical habitat designation.
All other subunits (besides the two modeled as unoccupied) comprise
60 percent of the designation and were modeled as occupied in the
economic analysis. In these areas, any actions that may affect the
species or its habitat would also affect designated critical habitat
and it is unlikely that any additional conservation efforts would be
recommended to address the adverse modification standard over and above
those recommended as necessary to avoid jeopardizing the continued
existence of the Texas hornshell. Therefore, only administrative costs
are expected in approximately 60 percent of the proposed critical
habitat designation. While this additional analysis will require time
and resources by both the Federal action agency and the Service, we
believe that in most circumstances these costs would predominantly be
administrative in nature and would not exceed $89,000 in a single year.
The remaining subunits (185.2 mi (298.0) km, or 40 percent of the
total proposed critical habitat designation) that were analyzed as
unoccupied by the species for the purposes of the economic analysis are
essential for the conservation of the species. In these areas, any
conservation efforts or associated probable impacts would be considered
incremental effects attributed to the critical habitat designation.
Subunit 4b (Rio Grande-Lower Canyons, Langtry Reach) is very remote
with little to no development, and activities that could affect the
Texas hornshell or its habitat are not expected to occur in these
areas. We do not anticipate any projects because of how remote Subunit
4b is, as well as the lack of historical, current, or planned
activities in this area. Subunit 5a (Rio Grande-Laredo, Eagle Pass
Reach) has potential for projects to occur; however, because this reach
is upstream of occupied habitat, for large projects, project
modifications requested to avoid adverse modification are likely to be
the same as those that would be needed to avoid jeopardizing the
species in downstream, occupied critical habitat. For small projects
that may affect critical habitat in this reach, project modifications
would be the same as conservation measures currently included in best
management practices under Clean Water Act section 404 permits issued
by the U.S. Army Corps of Engineers. Therefore, costs are unlikely to
exceed $100 million in any single year and would not be significant,
based on the definition of significance in E.O. 12866.
The entities most likely to incur incremental costs are parties to
section 7 consultations, including Federal action agencies and, in some
cases, third parties, most frequently State agencies or municipalities.
Activities we expect will be subject to consultations that may involve
private entities as third parties are residential and commercial
development that may occur on private lands. However, based on
coordination efforts with State and local agencies, the cost to private
entities within these sectors is expected to be relatively minor
(administrative costs of less than $10,000 per consultation effort) and
would not be significant (exceed $100 million in a single year).
The probable incremental economic impacts of the Texas hornshell
critical habitat designation are expected to be limited to additional
administrative effort as well as minor costs of conservation efforts
resulting from a small number of future section 7 consultations. This
is due to two factors: (1) In proposed critical habitat stream reaches
that were analyzed as occupied by the species (60 percent), incremental
economic impacts of critical habitat designation, other than
administrative costs, are unlikely; and (2) in proposed areas that were
analyzed as if they were unoccupied by the Texas hornshell (40
percent), few actions are anticipated that will result in section 7
consultation or associated project modifications. At approximately
$10,000 or less per consultation, in order to reach the threshold of
$100 million of incremental administrative impacts in a single year,
critical habitat designation would have to result in more than 11,000
consultations in a single year. Thus, the annual administrative burden
is unlikely to reach $100 million.
As we stated earlier, we are soliciting data and comments from the
public on the draft economic analysis, as well as all aspects of the
proposed rule and our amended required determinations. We may revise
the proposed rule or supporting documents to incorporate or address
information we receive during the public comment period. In particular,
we may exclude an area from critical habitat if we determine that the
benefits of excluding the area outweigh the benefits of including the
area, provided the exclusion will not result in the extinction of this
species.
Exclusions
Based on the information provided by entities seeking exclusion, as
well as any additional public comments received, we will evaluate
whether certain lands are appropriate for exclusion from the final
designation under section 4(b)(2) of the Act. If the analysis indicates
that the benefits of excluding lands from the final designation
outweigh the benefits of designating those lands as critical
[[Page 30899]]
habitat, then the Secretary may exercise his discretion to exclude the
lands from the final designation.
We are considering whether to exclude Unit 1: Pecos Tributary Unit
under section 4(b)(2) of the Act from the final critical habitat
designation for the Texas hornshell because of the conservation
agreements discussed earlier in this document. The Service has
collaborated with water users, oil and gas developers, landowners, and
other partners to implement a CCA and CCAA for the Texas hornshell on
State, Federal, and private lands in the Black and Delaware River
watersheds. The key conservation measures in the agreements are
designed to limit oil and gas development to areas outside of the Black
and Delaware River floodplains, minimize erosion in order to maintain
suitable substrate, and maintain minimum water flows in the rivers.
Along with these measures, the partners to the agreement are evaluating
alternatives to the multiple low water crossings on the Black River to
reduce the potential for river contamination. Partners are considering
alternate crossing locations that could include bridges designed to
allow host fishes to pass through in addition to decreasing the risk of
contamination events.
The Pecos Tributary Unit consists of two subunits, the Black River
Subunit (9.7 mi (15.6 km)) and the Delaware River Subunit (31.1 mi
(50.0 km)). A CCA and CCAA between the Service, BLM, New Mexico State
Land Office, and Center of Excellence has been completed for the Black
and Delaware Rivers in New Mexico and Texas. We are considering the
exclusion of non-Federal lands covered by this plan that provide for
the conservation of the Texas hornshell. We are requesting comments on
the benefit to the Texas hornshell from the CCA/CCAA; however, at this
time, we are not proposing to exclude any area within the proposed
critical habitat for the Texas hornshell.
However, we specifically solicit comments on the inclusion or
exclusion of the Pecos Tributary Unit.
Any other plans in development that are submitted to us will be
evaluated and could result in the exclusion of additional proposed
critical habitat units from the final designation.
Exclusions Based on Economic Impacts
Under section 4(b)(2) of the Act, we consider the economic impacts
of specifying any particular area as critical habitat. In order to
consider economic impacts, we prepared an analysis of the economic
impacts of the proposed critical habitat designation and related
factors. Potential land use sectors that may be affected by the Texas
hornshell critical habitat designation include water diversion,
impoundment repairs, bridge and highway maintenance, oil and gas
development, border protection, grazing, groundwater withdrawals, and
agriculture.
During the development of a final designation, we will consider any
additional economic impact information received through the public
comment period, and as such areas may be excluded from the final
critical habitat designation under section 4(b)(2) of the Act and our
implementing regulations at 50 CFR 424.19.
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), the Service must consider impacts on
national security, including homeland security, on lands or areas not
covered by section 4(a)(3)(B)(i). 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.
We cannot, however, automatically exclude requested areas. When
DoD, DHS, or another Federal agency requests exclusion from critical
habitat on the basis of national-security or homeland-security impacts,
it must provide a reasonably specific justification of an incremental
impact on national security that would result from the designation of
that specific area as critical habitat. That justification could
include demonstration of probable impacts, such as impacts to ongoing
border-security patrols and surveillance activities, or a delay in
training or facility construction, as a result of compliance with
section 7(a)(2) of the Act. If the agency requesting the exclusion does
not provide us with a reasonably specific justification, we will
contact the agency to recommend that it provide a specific
justification or clarification of its concerns relative to the probable
incremental impact that could result from the designation. If the
agency provides a reasonably specific justification, we will defer to
the expert judgment of DoD, DHS, or another Federal agency as to: (1)
Whether activities on its lands or waters, or its activities on other
lands or waters, have national-security or homeland-security
implications; (2) the importance of those implications; and (3) the
degree to which the cited implications would be adversely affected in
the absence of an exclusion. In that circumstance, in conducting a
discretionary section 4(b)(2) exclusion analysis, we will give great
weight to national-security and homeland-security concerns in analyzing
the benefits of exclusion.
We are not considering or proposing any lands for exclusions based
on national security impacts under section 4(b)(2) of the Act in this
proposed critical habitat rule. We have coordinated with the DHS and
will continue to do so during the development of the final rule. U.S.
Customs and Border Protection indicated that construction and
maintenance of boat ramps, sediment removal, and dam construction may
be affected by the designation of critical habitat for the Texas
hornshell. We note that Congress has provided to the Secretary of
Homeland Security a number of authorities necessary to carry out the
Department's border security mission. One of those authorities is found
at section 102 of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, as amended (``IIRIRA''). In section 102(a)
of IIRIRA, Congress provided that the Secretary of Homeland Security
shall take such actions as may be necessary to install additional
physical barriers and roads (including the removal of obstacles to
detection of illegal entrants) in the vicinity of the United States
border to deter illegal crossings in areas of high illegal entry into
the United States. In section 102(b) of IIRIRA, Congress mandated the
installation of additional fencing, barriers, roads, lighting, cameras,
and sensors on the southwest border. Finally, in section 102(c) of
IIRIRA, Congress granted to the Secretary of Homeland Security the
authority to waive all legal requirements that he determines are
necessary to ensure the expeditious construction of barriers and roads
authorized by section 102 of IIRIRA. On February 20, 2020, the
Secretary of Homeland Security issued waivers for legal requirements
covering border barrier activities directly in the vicinity of the
Texas hornshell's known range (85 FR 9794).
[[Page 30900]]
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 CCAAs, or
whether there are non-permitted conservation agreements and
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
have been in contact with the Kickapoo Traditional Tribe of Texas
during the development of this proposed rule and will continue to do so
during the development of final critical habitat. We also consider any
social impacts that might occur because of the designation.
Public Hearings
We have scheduled a public informational meeting and public hearing
on this proposed rule to designate critical habitat for the Texas
hornshell. We will hold the public informational meeting and public
hearing on the date and at the times listed above under Public
informational meeting and public hearing in DATES. We are holding the
public informational meeting and public hearing via the Zoom online
video platform and via teleconference so that participants can attend
remotely. For security purposes, registration is required. To listen
and view the meeting and hearing via Zoom, listen to the meeting and
hearing by telephone, or provide oral public comments at the public
hearing by Zoom or telephone, you must register. For information on how
to register, or if you encounter problems joining Zoom the day of the
meeting, visit <a href="https://www.fws.gov/southwest/">https://www.fws.gov/southwest/</a>. Registrants will receive
the Zoom link and the telephone number for the public informational
meeting and public hearing. If applicable, interested members of the
public not familiar with the Zoom platform should view the Zoom video
tutorials (<a href="https://support.zoom.us/hc/en-us/articles/206618765-Zoom-video-tutorials">https://support.zoom.us/hc/en-us/articles/206618765-Zoom-video-tutorials</a>) prior to the public informational meeting and public
hearing.
The public hearing will provide interested parties an opportunity
to present verbal testimony (formal, oral comments) regarding this
proposed rule. While the public informational meeting will be an
opportunity for dialogue with the Service, the public hearing is not:
It is a forum for accepting formal verbal testimony. In the event there
is a large attendance, the time allotted for oral statements may be
limited. Therefore, anyone wishing to make an oral statement at the
public hearing for the record is encouraged to provide a prepared
written copy of their statement to us through the Federal eRulemaking
Portal, or U.S. mail (see ADDRESSES, above). There are no limits on the
length of written comments submitted to us. Anyone wishing to make an
oral statement at the public hearing must register before the hearing
(<a href="https://www.fws.gov/southwest/">https://www.fws.gov/southwest/</a>). The use of a virtual public hearing
is consistent with our regulations at 50 CFR 424.16(c)(3).
Required Determinations
Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) in the Office of Management and Budget will
review all significant rules. OIRA 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 required to evaluate the potential incremental impacts of
rulemaking only on those entities directly regulated by the rulemaking
itself, and therefore, not required to evaluate the potential impacts
to indirectly regulated entities. The regulatory mechanism through
which critical habitat protections are realized is section 7 of the
Act, which requires Federal agencies, in consultation with the Service,
to ensure that any action authorized, funded, or carried out by the
Agency is not likely to destroy or adversely modify critical habitat.
Therefore, under section 7, only Federal action agencies are directly
subject to the specific regulatory requirement (avoiding destruction
and adverse modification) imposed by critical habitat designation.
Consequently, it is our position that
[[Page 30901]]
only Federal action agencies will be directly regulated by this
designation. There is no requirement under the RFA to evaluate the
potential impacts to entities not directly regulated. Moreover, Federal
agencies are not small entities. Therefore, because no small entities
are directly regulated by this rulemaking, the Service certifies that,
if promulgated, the proposed critical habitat designation will not have
a significant economic impact on a substantial number of small
entities.
In summary, we have considered whether the proposed designation
would result in a significant economic impact on a substantial number
of small entities. For the above reasons and based on currently
available information, we certify that, if promulgated, the proposed
critical habitat designation would not have a significant economic
impact on a substantial number of small business entities. Therefore,
an initial regulatory flexibility analysis is not required.
Energy Supply, Distribution, or Use--Executive Order 13211
Executive Order 13211 (Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use) requires
agencies to prepare Statements of Energy Effects when undertaking
certain actions. Oil and gas leases occur within the watershed of both
subunits in Unit 1: Pecos Tributary Unit. We do not expect designation
of critical habitat for the Texas hornshell to significantly affect the
production under these leases because we anticipate most companies will
participate in the voluntary conservation measures provided in the
CCAA. Further, in our economic analysis, we did not find that the
designation of this proposed critical habitat will significantly affect
energy supplies, distribution, or use. Therefore, this action is not a
significant energy action, and no Statement of Energy Effects is
required.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following findings:
(1) This rule will not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute, or regulation
that would impose an enforceable duty upon State, local, or tribal
governments, or the private sector, and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or tribal governments'' with two
exceptions. It excludes ``a condition of Federal assistance.'' It also
excludes ``a duty arising from participation in a voluntary Federal
program,'' unless the regulation ``relates to a then-existing Federal
program under which $500,000,000 or more is provided annually to State,
local, and tribal governments under entitlement authority,'' if the
provision would ``increase the stringency of conditions of assistance''
or ``place caps upon, or otherwise decrease, the Federal Government's
responsibility to provide funding,'' and the State, local, or tribal
governments ``lack authority'' to adjust accordingly. At the time of
enactment, these entitlement programs were: Medicaid; Aid to Families
with Dependent Children work programs; Child Nutrition; Food Stamps;
Social Services Block Grants; Vocational Rehabilitation State Grants;
Foster Care, Adoption Assistance, and Independent Living; Family
Support Welfare Services; and Child Support Enforcement. ``Federal
private sector mandate'' includes a regulation that ``would impose an
enforceable duty upon the private sector, except (i) a condition of
Federal assistance or (ii) a duty arising from participation in a
voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not destroy or adversely modify critical
habitat under section 7. While non-Federal entities that receive
Federal funding, assistance, or permits, or that otherwise require
approval or authorization from a Federal agency for an action, may be
indirectly impacted by the designation of critical habitat, the legally
binding duty to avoid destruction or adverse modification of critical
habitat rests squarely on the Federal agency. Furthermore, to the
extent that non-Federal entities are indirectly impacted because they
receive Federal assistance or participate in a voluntary Federal aid
program, the Unfunded Mandates Reform Act would not apply, nor would
critical habitat shift the costs of the large entitlement programs
listed above onto State governments.
(2) We do not believe that this rule will significantly or uniquely
affect small governments because small governments will be affected
only to the extent that any programs having Federal funds, permits, or
other authorized activities must ensure that their actions will not
adversely affect the critical habitat. Therefore, a Small Government
Agency Plan is not required.
Takings--Executive Order 12630
In accordance with E.O. 12630 (Government Actions and Interference
with Constitutionally Protected Private Property Rights), we have
analyzed the potential takings implications of designating critical
habitat for the Texas hornshell 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 Texas hornshell
does not pose significant takings implications for lands within or
affected by the designation.
Federalism--Executive Order 13132
In accordance with E.O. 13132 (Federalism), this proposed rule does
not have significant Federalism effects. A Federalism assessment is not
required. In keeping with Department of the Interior and Department of
Commerce policy, we request information from, and coordinated
development of this proposed critical habitat designation with,
appropriate State resource agencies in New Mexico and Texas. From a
federalism perspective, the designation of critical habitat directly
affects only the responsibilities of Federal agencies. The Act imposes
no other duties with respect to critical habitat, either for States and
local governments, or for anyone else. As a result, the rule does not
have substantial direct effects either on the States, or on the
relationship between the national government and the States, or on the
distribution of powers and responsibilities among the various levels of
government. The designation may have some benefit to these governments
because the areas
[[Page 30902]]
that contain the features essential to the conservation of the species
are more clearly defined, and the physical or biological features of
the habitat necessary to the conservation of the species are
specifically identified. This information does not alter where and what
federally sponsored activities may occur. However, it may assist these
local governments in long-range planning (because these local
governments no longer have to wait for case-by-case section 7
consultations to occur).
Where State and local governments require approval or authorization
from a Federal agency for actions that may affect critical habitat,
consultation under section 7(a)(2) would be required. While non-Federal
entities that receive Federal funding, assistance, or permits, or that
otherwise require approval or authorization from a Federal agency for
an action, may be indirectly impacted by the designation of critical
habitat, the legally binding duty to avoid destruction or adverse
modification of critical habitat rests squarely on the Federal agency.
Civil Justice Reform--Executive Order 12988
In accordance with Executive Order 12988 (Civil Justice Reform),
the Office of the Solicitor has determined that the rule does not
unduly burden the judicial system and that it meets the requirements of
sections 3(a) and 3(b)(2) of the Order. We have proposed designating
critical habitat in accordance with the provisions of the Act. To
assist the public in understanding the habitat needs of the species,
the rule identifies the elements of physical or biological features
essential to the conservation of the species. The designated areas of
critical habitat are presented on maps, and the rule provides several
options for the interested public to obtain more detailed location
information, if desired.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This rule does not contain any new collections of information that
require approval by OMB under the Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.). This rule will not impose recordkeeping or
reporting requirements on State or local governments, individuals,
businesses, or organizations. An agency may not conduct or sponsor, and
a person is not required to respond to, a collection of information
unless it displays a currently valid OMB control number.
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
It is our position that, outside the jurisdiction of the U.S. Court
of Appeals for the Tenth Circuit, we do not need to prepare
environmental analyses pursuant to the National Environmental Policy
Act (NEPA; 42 U.S.C. 4321 et seq.) 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)).] However, when the
range of the species includes States within the Tenth Circuit, such as
that of the Texas hornshell, under the Tenth Circuit ruling in Catron
County Board of Commissioners v. U.S. Fish and Wildlife Service, 75
F.3d 1429 (10th Cir. 1996), we undertake a NEPA analysis for critical
habitat designation. We invite the public to comment on the extent to
which this proposed regulation may have a significant impact on the
human environment, or fall within one of the categorical exclusions for
actions that have no individual or cumulative effect on the quality of
the human environment. We will complete our analysis, in compliance
with NEPA, before finalizing this proposed rule.
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.
There are tribal lands in Texas included in this proposed
designation of critical habitat. The Kickapoo Indian Reservation of
Texas owns 1.3 km (0.8 mi) adjacent to the Rio Grande in the Rio
Grande-Eagle Pass Reach subunit. Using the criteria found in the
Criteria Used To Identify Critical Habitat section, we have determined
that all of the areas proposed for designation on tribal lands are
essential to the conservation of the species. We will seek government-
to-government consultation with these tribes throughout the proposal
and development of the final designation of Texas hornshell critical
habitat.
Clarity of the Rule
We are required by Executive Orders 12866 and 12988 and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in ADDRESSES. To better help us
revise the rule, your comments should be as specific as possible. For
example, you should tell us the numbers of the sections or paragraphs
that are unclearly written, which sections or sentences are too long,
the sections where you feel lists or tables would be useful, etc.
References Cited
A complete list of references cited in this rulemaking is available
on the internet at <a href="http://www.regulations.gov">http://www.regulations.gov</a> and upon request from the
Texas Coastal Ecological Services Field Office (see FOR FURTHER
INFORMATION CONTACT).
Authors
The primary authors of this proposed rulemaking are the staff
members of the Texas Coastal Ecological Services Field Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Proposed Regulation Promulgation
Accordingly, we propose to amend part 17, subchapter B of chapter
I, title 50 of the Code of Federal Regulations, as set forth below:
[[Page 30903]]
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), the List of Endangered and Threatened
Wildlife, by revising the entry for ``Hornshell, Texas'' under CLAMS to
read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
----------------------------------------------------------------------------------------------------------------
Listing citations
Common name Scientific name Where listed Status and applicable
rules
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Clams
* * * * * * *
Hornshell, Texas............. Popenaias popeii.... Wherever found...... E 83 FR 5720, 2/9/
2018; 50 CFR
17.95(f).\CH\
* * * * * * *
----------------------------------------------------------------------------------------------------------------
* * * * *
0
3. In Sec. 17.95, amend paragraph (f) by adding an entry for ``Texas
Hornshell Popenaias popeii),'' after the entry for ``Carolina
Heelsplitter (Lasmigona decorata)'', to read as follows:
Sec. 17.95 Critical habitat--fish and wildlife.
* * * * *
(f) Clams and snails.
* * * * *
Texas Hornshell (Popenaias popeii)
(1) Critical habitat units are depicted for Eddy County, New
Mexico, and in Brewster, Culberson, Kinney, Maverick, Terrell, Val
Verde, and Webb Counties, Texas, on the maps in this entry.
(2) Within these areas, the physical or biological features
essential to the conservation of the Texas hornshell consist of a
riverine system that includes:
(i) Flowing water at rates high enough to support clean-swept
substrate but not so high as to dislodge individuals;
(ii) Crevices beneath boulders, shelves, and within undercut banks
with seams of fine sediment;
(iii) River carpsucker (Carpiodes carpio), red shiner (Cyprinella
lutrensis), and gray redhorse (Moxostoma congestum) present; and
(iv) Water quality parameters within the following ranges:
(A) Salinity below 0.9 ppt;
(B) Ammonia below 0.7 mg/L;
(C) Low levels of contaminants; and
(D) Dissolved oxygen levels within substrate >1.3mg/L.
(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
[EFFECTIVE DATE OF THE FINAL RULE].
(4) Data layers defining map units were created using U.S.
Geological Survey digital ortho-photo quarter-quadrangles, and critical
habitat units were then mapped using Universal Transverse Mercator
(UTM) Zone 15N 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 the Service's internet
site, <a href="https://www.fws.gov/southwest/es/TexasCoastal/">https://www.fws.gov/southwest/es/TexasCoastal/</a>, at <a href="http://www.regulations.gov">http://www.regulations.gov</a> in Docket No. FWS-R2-ES-2018-0021, 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 30904]]
[GRAPHIC] [TIFF OMITTED] TP10JN21.006
(6) Unit 1: Pecos Tributary Unit, Eddy County, New Mexico, and
Culberson County, Texas.
(i) Unit 1 consists of two subunits: Subunit 1a (Black River
Subunit) contains 15.6 km (9.7 mi) in Eddy County, New Mexico, and is
composed of lands in private ownership; Subunit 1b (Delaware River
Subunit) contains 50.0 km (31.1 mi) in Eddy County, New Mexico, and
Culberson County, Texas, and is composed of lands in Federal (13.2 km
(8.2 mi)) and private (36.8 km (22.9 mi)) ownership.
(ii) Map of Unit 1, Pecos Tributary Unit, Eddy County, New Mexico,
and Culberson County, Texas, follows:
[[Page 30905]]
[GRAPHIC] [TIFF OMITTED] TP10JN21.007
(7) Unit 2: Pecos River Unit, Val Verde and Terrell Counties,
Texas.
(i) Unit 2 consists of 137.9 km (85.7 mi) in Val Verde and Terrell
Counties, Texas, and is composed of lands in Federal (2.7 km (1.7 mi)),
non-governmental organization (7.6 km (4.7 mi)), and private (127.6 km
(79.3 mi)) ownership.
(ii) Map of Unit 2, Pecos River Unit, Val Verde and Terrell
Counties, Texas, follows:
[[Page 30906]]
[GRAPHIC] [TIFF OMITTED] TP10JN21.008
(8) Unit 3: Devils River Unit, Val Verde County, Texas.
(i) Unit 3 consists of 53.1 km (33.0 mi) in Val Verde County,
Texas, and is composed of lands in Federal (2.6 km (1.6 mi)), State
(1.6 km (1.0 mi)), non-governmental organization (16.7 km (10.4 mi)),
and private (32.2 km (20.0 mi)) ownership.
(ii) Map of Unit 3, Devils River Unit, Val Verde County, Texas,
follows:
[[Page 30907]]
[GRAPHIC] [TIFF OMITTED] TP10JN21.009
(9) Unit 4: Rio Grande--Lower Canyons Unit, Terrell, Brewster, and
Val Verde Counties, Texas.
(i) Unit 4 consists of two subunits: Subunit 4a (Lower Canyons
Reach Subunit) contains 107.3 km (66.7 mi) in Terrell and Brewster
Counties, Texas, and is composed of lands in State (7.1 km (4.4 mi)),
and Federal (100.3 km (62.3 mi)) ownership; Subunit 4b (Langtry Reach
Subunit) contains 74.8 km (46.5 mi) in Brewster and Val Verde Counties,
Texas, and is composed of lands in Federal (69.8 km (43.4 mi)) and
private (5.0 km (3.1 mi)) ownership.
(ii) Map of Unit 4, Rio Grande--Lower Canyons Unit, Terrell,
Brewster, and Val Verde Counties, Texas, follows:
[[Page 30908]]
[GRAPHIC] [TIFF OMITTED] TP10JN21.010
(10) Unit 5: Rio Grande--Laredo Unit, Kinney, Maverick, and Webb
Counties, Texas.
(i) Unit 5 consists of two subunits: Subunit 5a (Eagle Pass Reach
Subunit) contains 223.2 km (138.7 mi) in Kinney and Maverick Counties,
Texas, and is composed of lands in city (0.8 km (0.5 mi)), Tribal (1.3
km (0.8 mi), and private (221.1 km (137.4 mi)) ownership; Subunit 5b
(Laredo Reach Subunit) contains 84.0 km (52.2 mi) in Webb County,
Texas, and is composed of lands in city (0.5 km (0.3 mi)) and private
(83.5 km (51.9 mi)) ownership.
(ii) Map of Unit 5, Rio Grande-Laredo Unit, Kinney, Maverick, and
Webb Counties, Texas, follows:
[[Page 30909]]
[GRAPHIC] [TIFF OMITTED] TP10JN21.011
* * * * *
Martha Williams,
Principal Deputy Director, Exercising the Delegated Authority of the
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2021-11966 Filed 6-9-21; 8:45 am]
BILLING CODE 4333-15-C
</pre></body>
</html>Indexed from Federal Register on June 10, 2021.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.