Rule2021-13800
Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Suwannee Moccasinshell
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
July 1, 2021
Effective
August 2, 2021
Issuing agencies
Interior DepartmentFish and Wildlife Service
Abstract
We, the U.S. Fish and Wildlife Service (Service), designate critical habitat for the Suwannee moccasinshell (Medionidus walkeri) under the Endangered Species Act of 1973 (Act), as amended. In total, approximately 190 miles (306 kilometers) of stream channels in Alachua, Bradford, Columbia, Dixie, Gilchrist, Hamilton, Lafayette, Madison, Suwannee, and Union Counties, Florida, and Brooks and Lowndes Counties, Georgia, fall within the boundaries of the critical habitat designation. The effect of this regulation is to designate critical habitat for the Suwannee moccasinshell under the Act.
Full Text
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[Federal Register Volume 86, Number 124 (Thursday, July 1, 2021)]
[Rules and Regulations]
[Pages 34979-34998]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-13800]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R4-ES-2019-0059; FF09E21000 FXES11110900000 212]
RIN 1018-BD09
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for Suwannee Moccasinshell
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate
critical habitat for the Suwannee moccasinshell (Medionidus walkeri)
under the Endangered Species Act of 1973 (Act), as amended. In total,
approximately 190 miles (306 kilometers) of stream channels in Alachua,
Bradford, Columbia, Dixie, Gilchrist, Hamilton, Lafayette, Madison,
Suwannee, and Union Counties, Florida, and Brooks and Lowndes Counties,
Georgia, fall within the boundaries of the critical habitat
designation. The effect of this regulation is to designate critical
habitat for the Suwannee moccasinshell under the Act.
DATES: This rule is effective August 2, 2021.
ADDRESSES: This final rule is available on the internet at <a href="http://www.regulations.gov">http://www.regulations.gov</a> under Docket No. FWS-R4-ES-2019-0059 and at <a href="https://www.fws.gov/panamacity/">https://www.fws.gov/panamacity/</a>. Comments and materials we received, as well
as some supporting documentation we used in preparing this rule, are
available for public inspection at <a href="http://www.regulations.gov">http://www.regulations.gov</a>. All of
the comments, materials, and documentation that we considered in this
rulemaking are available upon mailed request from U.S. Fish and
Wildlife Service, Panama City Ecological Services Field Office, 1601
Balboa Avenue, Panama City, FL 32405; or by telephone 850-769-0552.
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="http://www.regulations.gov">http://www.regulations.gov</a> at
Docket No. FWS-R4-ES-2019-0059, and at the Panama City Ecological
Services Field Office at <a href="https://www.fws.gov/panamacity/">https://www.fws.gov/panamacity/</a> (see FOR
FURTHER INFORMATION CONTACT). Any additional tools or supporting
information that we developed for this critical habitat designation
will also be available at the
[[Page 34980]]
U.S. Fish and Wildlife Service website and upon mailed request to the
Field Office set out above, and may also be included in the preamble
and at <a href="http://www.regulations.gov">http://www.regulations.gov</a>.
FOR FURTHER INFORMATION CONTACT: Jay B. Herrington, Field Supervisor,
U.S. Fish and Wildlife Service, Panama City Ecological Services Field
Office, 1601 Balboa Avenue, Panama City, FL 32405; telephone 850-769-
0552. 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 Section 4(a)(3) of the Act, if
we determine that a species is endangered or threatened, we must
designate critical habitat to the maximum extent prudent and
determinable. Designations and revisions of critical habitat can only
be completed by issuing a rule. We listed the Suwannee moccasinshell as
a threatened species on November 7, 2016 (81 FR 69417). We are
designating a total of approximately 190 mi (306 km) of stream channel
in three units as critical habitat for the Suwannee moccasinshell.
Basis for this rule. Section 3(5)(A) of the Act defines critical
habitat as (i) the specific areas within the geographical area occupied
by the species, at the time it is listed, on which are found those
physical or biological features (I) essential to the conservation of
the species and (II) which may require special management
considerations or protections; and (ii) specific areas outside the
geographical area occupied by the species at the time it is listed,
upon a determination by the Secretary that such areas are essential for
the conservation of the species. Section 4(b)(2) of the Act states that
the Secretary must make the designation on the basis of the best
scientific data available and after taking into consideration the
economic impact, the impact on national security, and any other
relevant impacts of specifying any particular area as critical habitat.
Economic analysis. In accordance with section 4(b)(2) of the Act,
we prepared an economic analysis of the impacts of designating critical
habitat for the Suwannee moccasinshell. We published the announcement
of, and solicited public comments on, the draft economic analysis (DEA;
84 FR 65325, November 27, 2019). Because we received no comments on the
DEA, we adopted the DEA as a final version.
Peer review and public comment. In accordance with our peer review
policy published on July 1, 1994 (59 FR 34270), we solicited expert
opinion from three knowledgeable individuals with scientific expertise
that included familiarity with the Suwannee moccasinshell and its
habitat, biological needs, and threats. We received a response from one
peer reviewer who agreed with the information in the proposed critical
habitat rule. We also considered all comments and information received
from the public during the comment period on the proposed designation.
Previous Federal Actions
On October 6, 2015 (80 FR 60335), we proposed to list the Suwannee
moccasinshell as a threatened species. On October 6, 2016 (81 FR
69417), we published the final listing rule, which added the Suwannee
moccasinshell to the List of Endangered and Threatened Wildlife in
title 50 of the Code of Federal Regulations at 50 CFR 17.11(h). On
November 27, 2019 (84 FR 65325), we proposed to designate critical
habitat for the Suwannee moccasinshell. All other previous Federal
actions for the Suwannee moccasinshell are described in one or more of
the documents discussed above.
Summary of Comments and Recommendations
In our November 27, 2019, proposed critical habitat rule, we
requested written comments from the public on the proposed designation
and the associated DEA by January 27, 2020. We also contacted
appropriate Federal, State, and local agencies; scientific
organizations; and other interested parties and invited them to comment
on the proposed critical habitat designation and DEA during the comment
period. Notices of the availability of these documents for review and
inviting public comment were published by the Tallahassee Democrat on
December 4, 2019, Gainesville Sun and Gilchrist Journal on December 5,
2019, and Valdosta Daily Times and Suwannee Democrat on December 11,
2019. We received nine comments during the 60-day comment period. We
did not receive any requests for a public hearing. All substantive
information provided during the comment period has either been
incorporated directly into this final determination or is addressed
below.
Comments From States
Section 4(b)(5)(A)(ii) of the Act requires the Service to give
actual notice of any designation of lands that are considered to be
critical habitat to the appropriate agency of each State in which the
species is believed to occur, and invite each such agency to comment on
the proposed regulation. The Florida Fish and Wildlife Conservation
Commission (FWC) provided comments in support of the designation of
critical habitat, and provided additional information related to
current and future threats. Specifically, the FWC provided a
publication by Holcomb et al. (2018, entire) on the strong connection
between spring discharge and species occupancy; information on a
proposed surface mining operation along the New River; and a
publication by Neupane et al. (2019, entire) that assessed the
hydrologic responses to projected climate change in the Suwannee River
basin. We incorporated this new information into the final rule.
Public Comments
We received eight public comments on the proposed rule. Several
commenters indicated support for the habitat protection of the Suwannee
moccasinshell. None of the comments were substantive so as to require
the Service's response.
Summary of Changes From the Proposed Rule
After consideration of the comments we received during the public
comment period (refer to Summary of Comments and Recommendations
above), and new information published or obtained since the proposed
rule was published, we made changes to the final critical habitat rule.
Many small, nonsubstantive changes and corrections, not affecting the
determination (e.g., updating the Background section in response to
comments, minor clarifications), were made throughout the document.
Below is a summary of changes made to the final rule.
(1) We incorporated information on the strong connection between
spring discharge and species occupancy from Holcomb et al. (2018,
entire) into the discussion of natural flow regimes in the Habitats
Protected From Disturbance section under Physical or Biological
Features Essential to the Conservation of the Species.
(2) We incorporated information from Neupane et al. (2018, entire),
provided by FWC (see above), that assessed the hydrologic responses to
projected climate change scenarios in the Suwannee River basin into the
discussion of natural flow regimes in the Habitats Protected From
Disturbance section under Physical or Biological Features Essential to
the Conservation of the Species.
(3) We incorporated information received from FWC (see above) on a
[[Page 34981]]
proposed surface mining operation in the upper Santa Fe River sub-basin
into the discussion of physical or biological features that may require
special management considerations or protection within Unit 1 under
Final Critical Habitat Designation.
Critical Habitat
Background
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features:
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Our regulations at 50 CFR 424.02 define the geographical area
occupied by the species as: An area that may generally be delineated
around species' occurrences, as determined by the Secretary (i.e.,
range). Such areas may include those areas used throughout all or part
of the species' life cycle, even if not used on a regular basis (e.g.,
migratory corridors, seasonal habitats, and habitats used periodically,
but not solely by vagrant individuals).
Conservation, as defined under section 3 of the Act, means to use
and the use of all methods and procedures that are necessary to bring
an endangered or threatened species to the point at which the measures
provided pursuant to the Act are no longer necessary. Such methods and
procedures include, but are not limited to, all activities associated
with scientific resources management such as research, census, law
enforcement, habitat acquisition and maintenance, propagation, live
trapping, and transplantation, and, in the extraordinary case where
population pressures within a given ecosystem cannot be otherwise
relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the requirement that Federal agencies ensure, in consultation
with the Service, that any action they authorize, fund, or carry out is
not likely to result in the destruction or adverse modification of
critical habitat. The designation of critical habitat does not affect
land ownership or establish a refuge, wilderness, reserve, preserve, or
other conservation area. Such designation does not allow the government
or public to access private lands. Such designation does not require
implementation of restoration, recovery, or enhancement measures by
non-Federal landowners. Where a landowner requests Federal agency
funding or authorization for an action that may affect a listed species
or critical habitat, the Federal agency would be required to consult
with the Service under section 7(a)(2) of the Act. However, even if the
Service were to conclude that the proposed activity would result in
destruction or adverse modification of the critical habitat, the
Federal action agency and the landowner are not required to abandon the
proposed activity, or to restore or recover the species; instead, they
must implement ``reasonable and prudent alternatives'' to avoid
destruction or adverse modification of critical habitat.
Under the first prong of the Act's definition of critical habitat,
areas within the geographical area occupied by the species at the time
it was listed are included in a critical habitat designation if they
contain physical or biological features (1) which are essential to the
conservation of the species and (2) which may require special
management considerations or protection. For these areas, critical
habitat designations identify, to the extent known using the best
scientific and commercial data available, those physical or biological
features that are essential to the conservation of the species (such as
space, food, cover, and protected habitat). In identifying those
physical or biological features that occur in specific occupied 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 may designate critical habitat in areas outside the geographical
area occupied by the species at the time it is listed, upon a
determination that such areas are essential for the conservation of the
species. 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 from
the 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
[[Page 34982]]
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) the prohibitions found in section 9 of the
Act. Federally funded or permitted projects affecting listed species
outside their designated critical habitat areas may still result in
jeopardy findings in some cases. These protections and conservation
tools will continue to contribute to recovery of this species.
Similarly, critical habitat designations made on the basis of the best
available information at the time of designation will not control the
direction and substance of future recovery plans, habitat conservation
plans (HCPs), or other species conservation planning efforts if new
information available at the time of these planning efforts calls for a
different outcome.
Physical or Biological Features Essential to the Conservation of the
Species
In accordance with section 3(5)(A)(i) of the Act and regulations at
50 CFR 424.12(b), in determining which areas we will designate as
critical habitat from within the geographical area occupied by the
species at the time of listing, we consider the physical or biological
features that are essential to the conservation of the species and that
may require special management considerations or protection. 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 essential to the conservation of the species might
include gravel of a particular size required for spawning, alkali soil
for seed germination, protective cover for migration, or susceptibility
to flooding or fire that maintains necessary early-successional habitat
characteristics. Biological features might include prey species, forage
grasses, specific kinds or ages of trees for roosting or nesting,
symbiotic fungi, or a particular level of nonnative species consistent
with conservation needs of the listed species. The features may also be
combinations of habitat characteristics and may encompass the
relationship between characteristics or the necessary amount of a
characteristic essential to support the life history of the species.
In considering whether features are essential to the conservation
of the species, we 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
Mussels generally live embedded in the bottom of stable streams and
other bodies of water, in areas where flow velocities are sufficient to
remove finer sediments and provide well-oxygenated waters. The Suwannee
moccasinshell inhabits creeks and rivers where it is found in
substrates of sand or a mixture of sand and gravel, and in areas with
slow to moderate current (Williams 2015, p. 2). The species is often
associated with large woody material embedded in the substrate, which
may help stabilize substrates and act as a flow refuge. The Suwannee
moccasinshell, similar to other freshwater mussels, is dependent on
areas with flow refuges, where shear stress is relatively low and
sediments remain stable during high flow events (Strayer 1999, pp. 468,
472; Hastie et al. 2001, pp. 111-114; Gangloff and Feminella 2007, p.
71). Substrates that remain stable in high flows conceivably allow
these relatively sedentary animals to remain in the same general
location throughout their entire lives. These habitat conditions not
only provide space for Suwannee moccasinshell populations, but also
provide cover and shelter and sites for breeding, reproduction, and
growth of offspring.
Food, Water, Air, Light, Minerals, or Other Nutritional or
Physiological Requirements
Freshwater mussels, such as the Suwannee moccasinshell, siphon
water into their shells and across four gills that are specialized for
respiration, food collection, and brooding larvae in females. Food
items include fine detritus (particles of organic debris), algae,
diatoms, and bacteria (Strayer et al. 2004, pp. 430-431, Vaughn et al.
2008, p. 410). Adult mussels obtain food items both from the water
column and from the sediment, either by taking water in through the
incurrent siphon or by moving material extracted from sediments into
their shell using cilia (hair-like structures) on their foot. For the
first several months, juvenile mussels feed primarily with their foot,
although they also may filter interstitial (pore) water (Yeager et al.
1994, pp. 217-221). Food availability and quality for the Suwannee
moccasinshell is affected by habitat stability, floodplain
connectivity, flow, and water and sediment quality. Adequate food
availability and quality is essential for normal behavior, growth, and
viability during all life stages of this species.
The Suwannee moccasinshell is a riverine species that depends upon
adequate amounts of flowing water. Flowing water transports food items
to the sedentary juvenile and adult life stages, provides oxygen for
respiration, removes wastes, transports sperm to females, and maintains
the stream bottom habitats where the species is found (the effects of
flow alteration on habitat is discussed below under Habitats Protected
From Disturbance). A sufficient amount of continuously flowing water is
a feature essential to this species.
Important water quality parameters for freshwater mussels include
(but are not limited to) dissolved oxygen (DO), temperature, pH,
salinity, and suspended sediment. As relatively sedentary animals,
mussels must tolerate the full range of physical and chemical
conditions that occur naturally within the streams where they persist,
but many species are considered sensitive to disturbance. Water quality
within the Suwannee River basin may vary according to season, geology,
climate events, and human activities within the watershed. Dissolved
oxygen (DO) and water temperature are important parameters for
freshwater mussel early life stages, which are more sensitive to
deviations from normal ranges. Water temperature also plays an
important role in the overall water quality, including oxygen
solubility and
[[Page 34983]]
ammonia toxicity. Increased stream temperatures and decreased dissolved
oxygen concentrations are important secondary effects associated with
flow reduction and cessation (Haag and Warren 2008, pp. 1174-1176).
Sensitive mussel species like the Suwannee moccasinshell may suffer
lethal and nonlethal effects to low dissolved oxygen levels and
elevated stream temperatures (Gagnon et al. 2004, p. 672; Golladay et
al. 2004, p. 501; Haag and Warren 2008, pp. 1174-1176; Spooner and
Vaughn 2008, p. 313), and are particularly susceptible to these
conditions during early life stages (Sparks and Strayer 1998, pp. 132-
133; Pandolfo et al. 2010, p. 965; Archambault et al. 2013, p. 247).
Water temperatures of not more than 91 [deg]F (32 [deg]C), and DO
concentrations of not less than 5.0 milligrams per liter (mg/L)
represent important thresholds for freshwater mussels (Sparks and
Strayer 1998, pp. 132-133; Gagnon et al. 2004, p. 672; Pandolfo et al.
2010, p. 965; Khan et al. 2019, p. 6). The specific physical and
chemical tolerance ranges needed by the Suwannee moccasinshell for
normal behavior, growth, and viability of all life stages have not been
investigated. In the absence of species-specific data, we are using the
current numeric standards for water quality criteria adopted by the
States under the Clean Water Act (CWA). We find these criteria
represent sustainable levels for aquatic life that would provide for
the conservation of the species.
Sites for Breeding, Reproduction, or Rearing (or Development) of
Offspring
Sites for breeding, reproduction, and development are tied to areas
in stable rivers and creeks where flow velocities are sufficient to
maintain habitats, and bottom substrates are composed of sand or a
mixture of sand and gravel (see Space for Individual and Population
Growth and for Normal Behavior above). Juvenile mussels depend upon
areas where substrates remain stable during high flow events. The
presence of large embedded logs may contribute to substrate stability
and act as flow refuges. The larvae of most freshwater mussels are
parasitic, requiring a period of encystment on a fish host in order to
transform into juvenile mussels. Thus, the presence of appropriate host
fishes to complete its reproductive life cycle is essential to the
Suwannee moccasinshell. In laboratory host trials, Suwannee
moccasinshell larvae transformed primarily on the blackbanded darter
(Percina nigrofasciata) and to a lesser extent on the brown darter
(Etheostoma edwini) (Johnson et al. 2016, p. 171). The blackbanded
darter is one of the most abundant darter species in coastal plain
streams, and the distribution of both fish species overlap with the
historical distribution of the Suwannee moccasinshell (Kuehne and
Barbour 1983, pp. 29-30; Robins et al. 2018, pp. 317, 336).
Habitats Protected From Disturbance
The Suwannee moccasinshell's habitat has been impacted by pollution
and reduced flows throughout its range, and by channel instability and
excessive sedimentation in portions of its range (see Factor A, The
Present or Threatened Destruction, Modification, or Curtailment of Its
Habitat or Range of the proposed listing rule).
An environment free from toxic levels of pollutants is essential to
the Suwannee moccasinshell, especially to its early life stages. There
is no specific information on the sensitivity of the species to common
municipal, agricultural, and industrial pollutants. However, as a
group, freshwater mussels are more sensitive to pollution than many
other aquatic organisms and are one of the first species to respond to
water quality impacts (Haag 2012, p. 355). A detailed discussion of
pollution issues in the basin and potential effects to the Suwannee
moccasinshell is provided in the proposed listing rule (80 FR 60335)
under Factor A.
The Suwannee moccasinshell depends upon a natural flow regime to
maintain its benthic habitats. Altered flow regimes (including higher
peak flows, lower base flows, and changes to seasonal flow pulses)
within the basin are attributable to altered stormwater runoff
patterns, lowering of the groundwater table, recent periods of drought,
and climate change. Developed areas and some agricultural lands shed
water extremely quickly during storm events. Urban areas significantly
affect water quantity because of the high percentage of impervious
cover and increases in water consumption. Rainfall on impervious
surfaces is immediately transported to stream channels, causing
increases in flow volume and velocity. These effects are discussed
further in the next section and in the final listing rule under Factor
A, Stream Channel Instability.
Because less infiltration occurs in developed areas, less
groundwater recharge occurs and stream base flows may be reduced. The
distinctive geology of the Suwannee River basin relies heavily on
spring discharge to buffer the tannic waters of the mainstem, and
groundwater recharge is limited in the region due to confinement of the
aquifer. Over 250 springs located in this system have been threatened
by increased demand for water resources within the basin and adjacent
basins. The combined effects of groundwater pumping and prolonged
droughts have resulted in lower groundwater tables and reduced flow and
dewatering of basin streams and springs for extended periods (Grubbs
and Crandall 2007, p. 78; Torak et al. 2010, pp. 46-47). The springs
provide refugia for aquatic organisms during periods of drought when
groundwater has the most influence on water quality and quantity.
Recent surveys found the species only in portions of the basin with
significant contributions from spring discharge and failed to locate
the species in areas without this influence (Holcomb et al. 2018, pp.
99-100). The strong connection between spring discharge and Suwannee
moccasinshell occupancy indicates that groundwater discharge via
springs is important to maintaining flows and water quality needed by
the species, especially during drought (Holcomb et al. 2018, p. 95).
Reductions in stream flow may also alter hydraulically mediated
sediment sorting throughout the river, which may displace or otherwise
alter Suwannee moccasinshell habitat. Climate scenarios for the years
2050 and 2080 predict changes to seasonal and annual hydrology of the
Suwannee River basin due to a wetter and warmer climate in the region
(Neupane et al. 2018, pp. 2232-2238). Within the basin, surface runoff
is projected to increase as a result of increased precipitation, and
summer stream flow is projected to decrease substantially (up to 25%)
by 2080 due to the effects of higher air temperature (Neupane et al.
2018, p. 2240).
Because freshwater mussels are relatively long-lived and have
limited mobility, habitat stability is a requirement shared by nearly
all freshwater mussels (Haag 2012, p. 106). Optimal substrate
conditions for the Suwannee moccasinshell include consolidated sand or
sand and gravel mixtures, without excessive accumulations of sediment
or detritus, and that remain stable during high flows. These substrates
are dependent on geomorphically stable stream channels and intact
riparian areas (Allan et al. 1997, p. 149; Rosgen 1996, pp. 8-11).
Stable stream channels consistently transport their sediment load, such
that the stream bed neither degrades nor aggrades, and have lower
suspended sediment loads (Rosgen 1996, pp. 1-3), which mussels require
in order to efficiently feed, respire, and reproduce. Stable stream
channels are formed and maintained by natural flow regimes, channel
features (dimension,
[[Page 34984]]
pattern, and profile), and natural sediment input to the system through
periodic flooding, which maintains connectivity and interaction with
the floodplain. Habitat instability is induced by changes in natural
sediment or flow regimes, and by physical modifications to the stream
channel or floodplain (channel instability is discussed further under
Factor A of the final listing rule).
Summary of Essential Physical or Biological Features
We have determined that the following physical or biological
features are essential to the conservation of Suwannee moccasinshell:
(1) Geomorphically stable stream channels (channels that maintain
lateral dimensions, longitudinal profiles, and sinuosity patterns over
time without an aggrading or degrading bed elevation).
(2) Stable substrates of muddy sand or mixtures of sand and gravel,
and with little to no accumulation of unconsolidated sediments and low
amounts of filamentous algae.
(3) A natural hydrologic flow regime (magnitude, frequency,
duration, and seasonality of discharge over time) necessary to maintain
benthic habitats where the species is found, and connectivity of stream
channels with the floodplain, allowing the exchange of nutrients and
sediment for habitat maintenance, food availability, and spawning
habitat for native fishes.
(4) Water quality conditions needed to sustain healthy Suwannee
moccasinshell populations, including low pollutant levels (not less
than State criteria), a natural temperature regime, pH (between 6.0 to
8.5), adequate oxygen content (not less than State criteria), hardness,
turbidity, and other chemical characteristics necessary for normal
behavior, growth, and viability of all life stages.
(5) The presence of abundant fish hosts necessary for recruitment
of the Suwannee moccasinshell. The presence of blackbanded darters
(Percina nigrofasciata) and brown darters (Etheostoma edwini) will
serve as an indication of fish host presence.
Special Management Considerations or Protection
When designating critical habitat, we assess whether the specific
areas within the geographical area occupied by the species at the time
of listing contain features that are essential to the conservation of
the species and which may require special management considerations or
protection.
All three units that we are designating as critical habitat,
including the unit that was occupied by the species at the time of
listing, have mixed ownership of adjacent riparian lands, with mainly
private (72 percent) and State (27 percent) lands (Table 1). All State-
owned riparian lands are in Florida, and the majority are managed by
Florida's Suwannee River Water Management District (District). Tracts
are managed to maintain adequate water supply and water quality for
natural systems by preserving riparian habitats and restricting
development (SRWMD 2014, p. 3).
The District established minimum flows and levels for the lower
Suwannee River, downstream of Fanning Springs and for the upper Santa
Fe River. Minimum flow and level criteria establish a limit at which
further withdrawals would be detrimental to water resources, taking
into consideration fish and wildlife habitats, the passage of fish,
sediment loads, and water quality, among others (SRWMD 2005, pp. 6-8;
SRWMD 2007, entire). In addition, the Suwannee River and Santa Fe River
systems have been designated Outstanding Florida Waters, which prevents
the permitted discharge of pollutants that would lower existing water
quality of, or significantly degrade, such waters. While these programs
may indirectly alleviate some detrimental impacts on aquatic habitats,
there currently are no plans or agreements designed specifically for
the conservation of the Suwannee moccasinshell or for freshwater
mussels in general.
The features essential to the conservation of the Suwannee
moccasinshell may require special management considerations or
protection to ameliorate the following threats: Altered flow regimes,
nonpoint source pollution (from stormwater runoff or infiltration),
point source pollution (from wastewater discharges or accidental
releases), physical alterations to the stream channel (for example,
dredging, straightening, impounding, etc.), and altered physical and
chemical water quality parameters (especially, temperature, dissolved
oxygen, turbidity, pH, and salinity). Special management considerations
or protection may be required within critical habitat areas to
ameliorate these threats, and include (but are not limited to): (1)
Moderation of surface and ground water withdrawals; (2) improvement of
the treatment of wastewater discharged from permitted facilities and
the operation of those facilities; (3) reductions in pesticide and
fertilizer use especially in groundwater recharge areas and near stream
channels; (4) use of best management practices designed to reduce
sedimentation, erosion, and stream bank alteration; (5) protection and
restoration of riparian buffers; and (6) avoidance of physical
alterations to stream channels and adjacent floodplains. This list
applies only to Federal actions (see the Application of the ``Adverse
Modification'' Standard below for more information).
Criteria Used To Identify Critical Habitat
As required by section 4(b)(2) of the Act, we use the best
scientific data available to designate critical habitat. In accordance
with the Act and our implementing regulations at 50 CFR 424.12(b), we
review available information pertaining to the habitat requirements of
the species and identify specific areas within the geographical area
occupied by the species at the time of listing and any specific areas
outside the geographical area occupied by the species to be considered
for designation as critical habitat. As discussed in more detail below,
we are designating critical habitat in areas within the geographical
area occupied by the species at the time of listing. We also are
designating specific areas outside the geographical area occupied by
the species at the time of listing because we have determined that a
designation limited to occupied areas would be inadequate--and
therefore designation of unoccupied areas is essential--to ensure the
conservation of the species.
On December 16, 2020, we published a final rule in the Federal
Register (85 FR 81411) adding a definition of ``habitat'' to our
regulations for purposes of critical habitat designations under the
Endangered Species Act of 1973, as amended (Act). This rule became
effective on January 15, 2021 and only applies to critical habitat
rules for which a proposed rule was published after January 15, 2021.
Consequently, this new regulation does not apply to this final rule.
The current distribution of the species is much reduced from its
historical range. We anticipate that recovery will require continued
protection of the existing population and its habitat, as well as
reintroduction of Suwannee moccasinshell into historically occupied
areas, ensuring there are multiple viable populations and that they
occur over a wide geographic area. Range-wide recovery considerations,
such as maintaining existing genetic diversity and striving for
representation of all major portions of the species' current range,
were considered in formulating the critical habitat.
[[Page 34985]]
For this rule, we delineated critical habitat unit boundaries using
the following criteria:
(1) We compiled all available occurrence data records.
(2) We used confirmed presences between the years 2000 and 2016 as
the foundation for identifying areas currently occupied.
(3) We evaluated habitat suitability of stream segments currently
occupied by the species and retained all occupied stream segments.
(4) We evaluated unoccupied stream segments for suitability,
connectivity, and expansion, and identified areas containing the
components comprising the physical or biological features that may
require special management considerations or protection.
(5) We omitted some unoccupied areas that are highly degraded and
are not likely restorable (e.g., insufficient flowing water, channel
destabilized), and, therefore, are not considered essential for the
conservation of the species.
(6) We delineated boundaries of critical habitat units based on the
above information.
Specific criteria and methodology used to determine critical
habitat unit boundaries are discussed below.
Sources of data for this critical habitat designation include
multiple databases maintained by Florida Fish and Wildlife Conservation
Commission, Dr. James D. Williams, Florida Museum of Natural History,
and U.S. Geological Survey; verified museum records from multiple
institutions (see Methods in Johnson et al. 2016, pp. 164-165); and a
status report by Blalock-Herod and Williams (2001, entire). Historical
and recent occurrence data included records collected from May 1916 to
March 2016. Many surveys were conducted throughout the Suwannee River
basin by Florida Fish and Wildlife Conservation Commission biologists
during 2012-2016, and all sites with historical occurrences of Suwannee
moccasinshell were sampled during this period. Sources of information
pertaining to habitat requirements of the Suwannee moccasinshell
include observations recorded during surveys and information contained
in Blalock-Herod and Williams (2001, entire) and Williams et al. (2014,
pp. 278-280).
Areas Occupied at the Time of Listing
We define ``currently occupied'' as river reaches with positive
surveys from 2000 to 2016. In making these determinations, we
recognized that known occurrences for some mussel species are extremely
localized, and rare mussels can be difficult to locate. In addition,
stream habitats are highly dependent upon upstream and downstream
channel habitat conditions for their maintenance. Therefore, we
considered the entire reach between the uppermost and lowermost
currently occupied locations to delineate the probable upstream and
downstream extent of the Suwannee moccasinshell's distribution. Within
the current range of the species, some habitats may or may not be
actively utilized by individuals, but we consider these areas to be
occupied at the scale of the geographic range of the species.
We are designating as critical habitat for the Suwannee
moccasinshell one occupied unit in the Suwannee River and lower Santa
Fe River. This area contains one or more of the physical or biological
features essential to the conservation of the Suwannee moccasinshell,
and those physical or biological features may require special
management conditions or protections. However, this single population
provides little redundancy for the species, and a series of back-to-
back stochastic events or a single catastrophic event could
significantly reduce or extirpate this one population. Consequently, we
have determined that the occupied area is inadequate to ensure the
conservation of the species. Therefore, we have also identified, and
are designating as critical habitat, unoccupied areas that are
essential for the conservation of the species.
Areas Not Occupied at the Time of Listing
We are designating two unoccupied units as critical habitat. The
units have some of the physical or biological features essential to the
conservation of the species, and we are reasonably certain that each
will contribute to the conservation of the species. Our specific
rationale for each unit can be found in the unit descriptions below.
An examination of all available collection data shows that the
Suwannee moccasinshell's range and numbers have declined over time (see
``Distribution and Abundance'' discussion in the final listing rule).
For example, despite considerable survey effort, the species has not
been collected in the lower Suwannee River or Withlacoochee River sub-
basins since the 1960s, and was last collected in the upper Santa Fe
River sub-basin in 1996 (Johnson et al. 2016, p. 170). There has also
been a reduction in numbers, with fewer individuals encountered during
recent surveys than were collected historically (Johnson et al. 2016,
pp. 166, 170).
The Suwannee moccasinshell's reduced range and small population
size may increase its vulnerability to many threats. Aquatic species
with small ranges, few populations, and small or declining population
sizes are the most vulnerable to extinction (Primack 2008, p. 137; Haag
2012, p. 336). The effects of certain environmental pressures,
particularly habitat degradation and loss, catastrophic weather events,
and introduced species, are greater when population size is small
(Soul[eacute] 1980, pp. 33, 71; Primack 2008, pp. 133-137, 152).
Threats to the Suwannee moccasinshell are compounded by its reduced and
linear distribution, with nearly the entire population presently
distributed within the Suwannee River mainstem. A small population also
occurs in the lower Santa Fe River; however, only 5 recent collections
(3 of which are relic shell) have been reported in this sub-basin
(Johnson et al. 2016, p. 171).
A larger population of Suwannee moccasinshell occurring over a wide
geographic area can have higher resilience. A large population is
better able to return to pre-disturbance numbers after stochastic
events, and also has increased availability of mates and reduced risk
of genetic drift and inbreeding depression. The minimum viable
population size needed to withstand stochastic events is not known for
mussels. For species with complex life histories like freshwater
mussels, maximizing the chances of viability over the long term, likely
requires a population of considerable size (Haag 2012, p. 371).
Reestablishing viable populations in the Withlacoochee and upper Santa
Fe River sub-basins increases Suwannee moccasinshell redundancy by
expanding its range into historically occupied areas, potentially
increasing population size, and providing refuge from catastrophic
events (for example, flooding and spills) in the Suwannee River.
We determined the Withlacoochee and upper Santa Fe River sub-basins
have the potential for future reoccupation by the species, provided
that stressors are managed and mitigated. These specific areas
encompass the minimum area of the species' historical range within the
critical habitat designation, while still providing ecological
diversity so that the species has the ability to evolve and adapt over
time (representation) to ensure that the species has an adequate level
of redundancy to guard against future catastrophic events. These areas
also represent the stream reaches within the historical range with the
best potential for recovery of the species due
[[Page 34986]]
to their current conditions and likely suitability for reintroductions.
Accordingly, we are designating one unoccupied unit in the upper Santa
Fe River and one unoccupied unit in the Withlacoochee River. As
described below in the individual unit descriptions, each unit contains
one or more of the physical or biological features and is reasonably
certain to contribute to the conservation of the species.
General Information on the Maps of the Critical Habitat Designation
The critical habitat streams were mapped with USGS National
Hydrography Dataset GIS data. The high-resolution 1:24,000 flowlines
were used to delineate the upstream and downstream boundaries of the
critical habitat units and to calculate river kilometers and miles,
according to the criteria explained below. The downstream boundary of a
unit is the confluence of a named tributary stream or spring, below the
farthest downstream occurrence record. The upstream boundary is the
confluence of the first major tributary, road-crossing bridge, or a
permanent barrier to fish passage above the farthest upstream
occurrence record. The confluence of a large tributary typically marks
a significant change in the size of the stream and is a logical and
recognizable upstream terminus. Likewise, a dam or other barrier to
fish passage marks the upstream extent to which mussels may disperse
via their fish hosts. In the unit descriptions, distances between
landmarks marking the upstream or downstream extent of a stream segment
are given in river kilometers (km) and equivalent miles (mi), as
measured tracing the course of the stream, not straight-line distance.
The areas designated as critical habitat include only stream
channels within the ordinary high-water line. States were granted
ownership of lands beneath navigable waters up to the ordinary high-
water line upon achieving statehood (Pollard v. Hagan, 44 U.S. (3 How.)
212 (1845)). Prior sovereigns or the States may have made grants to
private parties that included lands below the ordinary high-water mark
of some navigable waters that are included in this rule. Most, if not
all, lands beneath the navigable waters included in this final rule are
owned by the States of Florida and Georgia. The lands beneath most non-
navigable waters included in this final rule are in private ownership.
There are no developed areas within the critical habitat boundaries
except for transportation crossings, which do not remove the
suitability of these areas for this species. The scale of the maps we
prepared under the parameters for publication within the Code of
Federal Regulations may not reflect the exclusion of such developed
lands. Any such lands inadvertently left inside critical habitat
boundaries shown on the maps of this rule have been excluded by text in
the rule and are not designated as critical habitat. Therefore, a
Federal action involving these lands would not trigger section 7
consultation with respect to critical habitat and the requirement of no
adverse modification unless the specific action would affect the
physical or biological features in the adjacent critical habitat.
The critical habitat designation is defined by these maps, as
modified by any accompanying regulatory text, presented at the end of
this document in the text of the rule itself. We include more detailed
information on the boundaries of the critical habitat designation in
the preamble of this document. The coordinates on which each map is
based are available at the Service's internet site, (<a href="https://www.fws.gov/panamacity">https://www.fws.gov/panamacity</a>), (<a href="http://www.regulations.gov">http://www.regulations.gov</a>) at Docket No.
FWS-R4-ES-2019-0059, and at the field office responsible for this
designation (see FOR FURTHER INFORMATION CONTACT above).
Final Critical Habitat Designation
We are designating approximately 306 km (190 mi) of stream channel
in three units as critical habitat for the Suwannee moccasinshell. The
three units we are designating as critical habitat are: Unit 1:
Suwannee River, Unit 2: Upper Santa Fe River, and Unit 3: Withlacoochee
River. About 81 percent of critical habitat for the Suwannee
moccasinshell is already designated as critical habitat for either of
two ESA-listed species: The oval pigtoe (Pleurobema pyriforme) or the
Gulf sturgeon (Acipenser oxyrinchus desotoi). The table below shows the
critical habitat units for the Suwannee moccasinshell and ownership of
riparian lands adjacent to the units.
Table of Critical Habitat Units for the Suwannee Moccasinshell
[Ownership of riparian lands adjacent to the units is given for each streambank in kilometers (km) and miles
(mi). Lengths greater than 10 kilometers are rounded to the nearest whole kilometer and mile.]
----------------------------------------------------------------------------------------------------------------
Private km Unit length km
Bank (mi) State km (mi) County km (mi) (mi)
----------------------------------------------------------------------------------------------------------------
Unit 1: Suwannee River, FL...................... .............. .............. .............. 187 (116.2)
Right descending bank *..................... 133 (83) 51 (31) 3.1 (1.9) ..............
Left descending bank *...................... 133 (83) 53 (33) 1.5 (0.9) ..............
---------------------------------------------------------------
Total................................... 266 (165) 103 (64) 4.6 (2.9) ..............
Unit 2: Upper Santa Fe River, FL................ .............. .............. .............. 43 (26.7)
Right descending bank....................... 34 (21) 8.4 (5.2) 0.4 (0.3) ..............
Left descending bank........................ 26 (16) 13 (8) 3.6 (2.2) ..............
---------------------------------------------------------------
Total................................... 61 (38) 22 (13) 4 (2.5) ..............
Unit 3: Withlacoochee River, FL and GA.......... .............. .............. .............. 75.5 (46.9)
Right descending bank....................... 58 (36) 17 (11) 0 ..............
Left descending bank........................ 53 (33) 22 (14) 0 ..............
---------------------------------------------------------------
Total................................... 112 (69) 39 (25) 0 ..............
----------------------------------------------------------------------------------------------------------------
Note: Totals may not sum due to rounding.
* Right and left descending bank is that bank of a stream when facing in the direction of flow or downstream.
[[Page 34987]]
We present brief descriptions of all units, and reasons why they
meet the definition of critical habitat for the Suwannee moccasinshell,
below.
Unit 1: Suwannee River, Florida
Unit 1 consists of approximately 187 km (116 mi) of the Suwannee
River and lower Santa Fe River in Alachua, Columbia, Dixie, Gilchrist,
Lafayette, Madison, and Suwannee Counties, Florida. The unit includes
the Suwannee River mainstem from the confluence of Hart Springs (near
river kilometer 71) in Dixie and Gilchrist Counties, upstream 137 km
(85 mi) to the confluence of the Withlacoochee River in Madison and
Suwannee Counties; and the Santa Fe River from its confluence with the
Suwannee River in Suwannee and Gilchrist Counties, upstream 50 km (31
mi) to the river's rise in Alachua County. The Santa Fe River flows
underground for about 5 km (3.1 mi), ``sinking'' at O'Leno State Park
and ``rising'' at River Rise Preserve State Park. The lower and upper
portions of the Santa Fe River are intermittently connected during high
flow events. The riparian lands along stream reaches in this unit are
generally privately owned agricultural or silvicultural lands, or
State-owned or -managed conservation lands (Table 1).
The Suwannee moccasinshell occupies all stream reaches in this
unit, which contains most of the physical or biological features
essential to the conservation of the Suwannee moccasinshell. However,
decreases in stream flow and changes in water quality, especially
increased nitrogen loads and algae growth, are recognized issues in all
stream reaches within the unit (SRWMD 2017, pp. 26-27, 42-50). During
drought, depressed dissolved oxygen levels and elevated water
temperatures may also be degraded in some reaches. Therefore, physical
or biological features 3 and 4 are not consistently present in the
unit. Currently, 73 percent of Unit 1 is designated critical habitat
for the Gulf sturgeon (a migratory fish). Some small urban areas also
are located near the two rivers.
Special management considerations and protections that may be
required to address threats within the unit include: Minimizing ground
and surface water withdrawals or other actions that alter stream
hydrology; reducing the use of fertilizers and pesticides, especially
in spring recharge areas and near stream channels; improving treatment
of wastewater discharged from permitted facilities and the operation of
those facilities; implementing practices that protect or restore
riparian buffer areas along stream corridors; avoidance of physical
alternations to the stream channel and floodplain; prohibiting the
removal of pre-cut submerged timber (deadhead logs); and establishing
and enforcing restrictions on boat speed and length, especially in the
lower Santa Fe River. Many of these measures would also be implemented
in stream reaches upstream of the unit to adequately protect habitat
within the unit. For example, a large surface mining project is
proposed adjacent the New River within the upper Santa Fe River
watershed. If the mining operation and its associated structures are
constructed as currently proposed, we anticipate that physical or
biological features 3 and 4 would be negatively impacted to a
significant degree within the unit. In addition, groundwater discharge
via springs is important to maintaining flows and water quality needed
by the species, especially during drought (Holcomb et al., 2018, p.
95). Therefore, spring recharge areas and aquifers may also need to be
protected in order to fully address threats within the unit.
Unit 2: Upper Santa Fe River, Florida
Unit 2 consists of approximately 43 km (27 mi) of the Santa Fe
River and New River in Alachua, Bradford, Columbia, and Union Counties,
Florida. The unit includes the Santa Fe River from the river's sink in
Alachua County, upstream 36.5 km (23 mi) to the confluence of Rocky
Creek in Bradford and Alachua Counties; and the New River from its
confluence with the Santa Fe River, upstream 6.5 km (4 mi) to the
confluence of Five Mile Creek in Union and Bradford Counties. The
riparian lands along stream channels in this unit are generally
privately owned agricultural or silvicultural lands, or are State-owned
or -managed conservation lands (Table 1). All of Unit 2 is also
designated critical habitat for the oval pigtoe (a freshwater mussel).
The Suwannee moccasinshell was routinely represented in historical
collections in the upper Santa Fe sub-basin; however, it is the only
mussel species not detected in contemporary surveys. Unit 2 retains the
features of a natural stream channel and presently supports a diverse
mussel fauna, including several mussel species known to co-occur with
the Suwannee moccasinshell. This unit has at least one of the physical
or biological features essential to the conservation of the species,
and we are reasonably certain that this area will contribute to the
conservation of the species. Our specific rationale for this unit can
be found below.
This area is essential for the conservation of the species because
it would improve its resiliency and redundancy of the species, which is
necessary to conserve and recover the Suwanee moccasinshell. To improve
the species' overall viability by increasing resiliency and redundancy,
it is important to reestablish Suwannee moccasinshell populations in
its former range in the Santa Fe River sub-basin (i.e., Unit 2).
Presently, nearly the entire population of the species is linearly
distributed within the Suwannee River and vulnerable to catastrophic
events (for example, contaminant spills or severe floods), as well as
to random fluctuations in population size or environmental conditions
(Haag and Williams 2014, p. 48). Therefore, reestablishing populations
in Unit 2 would reduce its extinction risk by expanding its current
range into areas beyond the mainstem by providing connectivity to
already occupied areas, space for growth and population expansion in
portions of historical habitat, and refugia areas from threats in the
Suwannee River.
Although it is considered unoccupied, portions of this unit contain
some or all of the physical or biological features essential for the
conservation of the species. Unit 2 possesses characteristics described
by physical or biological features 1 and 2 as long reaches of stable
stream channel and suitable substrates are present throughout much of
the unit. Unit 2 retains the features of a natural stream channel and
presently supports a diverse mussel fauna, including several mussel
species that ordinarily co-occur with the Suwannee moccasinshell. Both
fish species found to serve as larval hosts for the Suwannee
moccasinshell occur within the unit (Robins et al., 2018, pp. 317,
336). Physical or biological features 3 and 4 are degraded in the Unit
during some times of the year. Flow levels in the upper Santa Fe River
have declined over time, and the river has ceased to flow multiple
times since 2000 (Johnson et al., 2016, p. 170). An important effect of
reduced flows is altered water quality, especially depressed dissolved
oxygen levels and elevated water temperatures (discussed above under
``Physical or Biological Features''). In 2007, the District developed
minimum flow levels to establish flows protective of ``fish and
wildlife habitats and the passage of fish'' in the upper Santa Fe River
(SRWMD 2007, entire). The restoration of natural flow levels is a
complex issue that will require considerable involvement and
collaboration of Federal, State, and local governments and private
landowners to implement projects that reduce groundwater
[[Page 34988]]
pumping in order to recover aquifer levels and sustain base flows in
the upper Santa Fe River sub-basin. However, if implemented, water
management strategies would improve physical or biological features 3
and 4. The need for conservation efforts is recognized by our
conservation partners, and methods for restoring natural flow regimes
and reintroducing the species into unoccupied habitat are being
advocated and developed. Accordingly, we are reasonably certain this
unit will contribute to the conservation of the species.
Unit 3: Withlacoochee River, Georgia and Florida
Unit 3 consists of approximately 75.5 km (47 mi) of the
Withlacoochee River in Madison and Hamilton Counties, Florida, and
Brooks and Lowndes Counties, Georgia. The unit includes the
Withlacoochee River from its confluence with the Suwannee River in
Madison and Hamilton Counties, FL, upstream 75.5 km (47 mi) to the
confluence of Okapilco Creek in Brooks and Lowndes Counties, GA. The
riparian lands along stream channels in this unit are generally
privately owned agricultural or silvicultural lands (Table 1). Unit 3
is within the historical range of the Suwannee moccasinshell but is not
currently occupied by the species. Twenty-five percent of Unit 3 is
also designated critical habitat for the Gulf sturgeon. Unit 3 retains
the features of a natural stream channel and supports a diverse mussel
fauna, including several mussel species known to co-occur with the
Suwannee moccasinshell. This unit has at least one of the physical or
biological features essential to the conservation of the species and we
are reasonably certain that this area will contribute to the
conservation of the species. Our specific rationale for this unit can
be found below.
This area is essential for the conservation of the species because
it would improve the resiliency and redundancy of the species, which is
necessary to conserve and recover the Suwanee moccasinshell. Presently,
nearly the entire population of the species is linearly distributed
within the Suwannee River (see Unit 1 above) and vulnerable to
catastrophic events (for example, contaminant spills or severe floods)
as well as to random fluctuations in population size or environmental
conditions (Haag and Williams 2014, p. 48). Reestablishing populations
in Withlacoochee River sub-basin would reduce its extinction risk by
expanding its current range into areas beyond the mainstem by providing
connectivity to already occupied areas, space for growth and population
expansion in portions of historical habitat, and refugia areas from
threats in the Suwannee River.
Although it is considered unoccupied, portions of this unit contain
some or all of the physical or biological features essential for the
conservation of the species. Specifically, Unit 3 possesses
characteristics described by physical or biological features 1 and 2 as
long reaches of stable stream channel with suitable substrates are
present within the unit. Unit 3 retains the features of a natural
stream channel and supports a diverse mussel fauna, including several
mussel species that ordinarily co-occur with the Suwannee
moccasinshell. Both fish species found to serve as larval hosts for the
Suwannee moccasinshell occur within the unit (Robins et al. 2018, pp.
317, 336). Therefore, we find that the unit has the potential to
support the species' life-history functions.
Physical or biological feature 4 is in degraded condition, and
pollution may have contributed to the Suwannee moccasinshell's decline
in Unit 3. The domestic wastewater treatment plant for the city of
Valdosta, GA is approximately 14 river miles upstream of the unit and
has a history of untreated sewage releases to the Withlacoochee River
after heavy rain events. However, major renovations to the city's sewer
system were completed in June 2016 with the construction of a new
treatment plant. Additional projects to address continued problems with
sewage spills are ongoing, and the construction of a large retention
basin is planned. If these improvements are realized, water quality
could be restored to levels necessary to support the species.
The need for conservation efforts is recognized by our conservation
partners, and methods for restoring and reintroducing the species into
unoccupied habitat are being developed. The Florida Fish and Wildlife
Conservation Commission and Georgia Department of Natural Resources
have expressed support for including this area in a critical habitat
designation (Florida Fish and Wildlife Conservation Commission 2019;
Georgia Department of Natural Resources 2018). Accordingly, we are
reasonably certain this unit will contribute to the conservation of the
species.
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that any action they fund, authorize, or carry out
is not likely to jeopardize the continued existence of any endangered
species or threatened species or result in the destruction or adverse
modification of designated critical habitat of such species. In
addition, section 7(a)(4) of the Act requires Federal agencies to
confer with the Service on any agency action that is likely to
jeopardize the continued existence of any species listed under the Act
or result in the destruction or adverse modification of critical
habitat.
We published a final regulation with a new definition of
destruction or adverse modification on August 27, 2019 (84 FR 45020).
Destruction or adverse modification means a direct or indirect
alteration that appreciably diminishes the value of critical habitat as
a whole for the conservation of a listed species.
If a Federal action may affect a listed species 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
or authorized, do not require section 7 consultation.
Compliance with the requirements of section 7(a)(2), is documented
through our issuance of:
(1) A concurrence letter for Federal actions that may affect, but
are not likely to adversely affect, listed species or critical habitat;
or
(2) A biological opinion for Federal actions that may affect and
are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is
likely to jeopardize the continued existence of a listed species and/or
destroy or adversely modify critical habitat, we provide reasonable and
prudent alternatives to the project, if any are identifiable, that
would avoid the likelihood of jeopardy and/or destruction or adverse
modification of critical habitat. We define ``reasonable and prudent
alternatives'' (at 50 CFR
[[Page 34989]]
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
consultation on previously reviewed actions in instances where we have
listed a new species or subsequently designated critical habitat that
may be affected and the Federal agency has retained discretionary
involvement or control over the action (or the agency's discretionary
involvement or control is authorized by law). Consequently, Federal
agencies sometimes may need to request reinitiation of consultation
with us on actions for which formal consultation has been completed, if
those actions with discretionary involvement or control may affect
subsequently listed species or designated critical habitat.
Overall, about 81 percent of critical habitat proposed for the
Suwannee moccasinshell is already designated as critical habitat for
either the oval pigtoe or Gulf sturgeon. For Federal actions within
areas already designated as critical habitat for these species,
conservation measures we would recommend for the Suwannee moccasinshell
are likely to be the same or very similar to those we already recommend
for the oval pigtoe and Gulf sturgeon. New additional conservation
measures will, however, likely be needed within that portion of Unit 3
that is unoccupied by the Suwannee moccasinshell but not currently
designated critical habitat for the Gulf sturgeon.
Application of the ``Destruction or Adverse Modification'' Standard
The key factor related to the destruction or adverse modification
determination is whether, with implementation of the proposed Federal
action, the affected critical habitat would continue to serve its
intended conservation role for the species. Activities that may destroy
or adversely modify critical habitat are those that result in a direct
or indirect alteration that appreciably diminishes the value of
critical habitat as a whole for the conservation of the Suwannee
moccasinshell. 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 destroy or
adversely modify such habitat, or that may be affected by such
designation.
Activities that may affect critical habitat, when carried out,
funded, or authorized by a Federal agency, should result in
consultation for the Suwannee moccasinshell. These activities include,
but are not limited to:
(1) Actions that would introduce contaminants or alter water
chemistry or temperature. Such activities could include, but are not
limited to, release of chemical or biological pollutants, or heated
effluents into the surface water or connected groundwater at a point
source or by dispersed release (nonpoint source). These activities
could alter water quality conditions to levels that are beyond the
tolerances of the mussel or its fish host.
(2) Actions that would reduce flow levels or alter flow regimes.
This could include, but is not limited to, activities that lower
groundwater levels including groundwater pumping and surface water
withdrawal or diversion. These activities can result in long-term
reduced stream flows, which may cause streams to stop flowing or dry
up; and also may decrease oxygen levels, elevate water temperatures,
degrade water quality, and cause sediments to accumulate. These
activities could alter flow levels beyond the tolerances of the mussel
or its fish host.
(3) Actions that would significantly increase the filamentous algal
community within the stream channel. Such activities could include, but
are not limited to, release of nutrients into the surface water or
connected groundwater at a point source or by dispersed release
(nonpoint source). These activities can result in excessive filamentous
algae filling streams and reducing habitat for the mussel and its fish
host, degrading water quality during their decay, and decreasing oxygen
levels at night from their respiration. Thick algal mats can also
entrain young mussels and prevent juveniles from settling into the
sediment. These activities could degrade the habitat and reduce oxygen
levels below the tolerances of the mussel or its fish host.
(4) Actions that would significantly alter channel morphology or
cause channel instability. Such activities could include but are not
limited to channelization, impoundment, road and bridge construction,
mining, dredging, destruction of riparian vegetation, and land
clearing. These activities may lead to changes in flow regimes, erosion
of the streambed and banks, and excessive sedimentation that could
degrade the habitat of the mussel or its fish host.
(5) Actions that would cause significant amounts of sediments to
enter the stream channel. Such activities could include but are not
limited to livestock grazing, road and bridge construction, channel
alteration, incompatible with best management practices, commercial and
residential development, and other watershed and floodplain
disturbances. These activities could eliminate or degrade the habitat
necessary for the growth and reproduction of the mussel or its fish
host.
Exemptions
Application of Section 4(a)(3) of the Act
Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i))
provides that: ``The Secretary shall not designate as critical habitat
any lands or other geographical areas owned or controlled by the
Department of Defense, or designated for its use, that are subject to
an integrated natural resources management plan [INRMP] prepared under
section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary
determines in writing that such plan provides a benefit to the species
for which critical habitat is proposed for designation.'' There are no
Department of Defense (DoD) lands with a completed INRMP within the
final 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
[[Page 34990]]
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 the determination to exclude a
particular area, 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. On
December 18, 2020, we published a final rule in the Federal Register
(85 FR 82376) revising portions of our regulations pertaining to
exclusions of critical habitat. These final regulations became
effective on January 19, 2021 and apply to critical habitat rules for
which a proposed rule was published after January 19, 2021.
Consequently, these new regulations do not apply to this final rule.
When considering the benefits of exclusion, we consider, among
other things, whether exclusion of a specific area is likely to result
in conservation; the continuation, strengthening, or encouragement of
partnerships; or implementation of a management plan. In the case of
the Suwannee moccasinshell, the benefits of critical habitat include
public awareness of the presence of the species and the importance of
habitat protection, and, where a Federal nexus exists, increased
habitat protection for the Suwannee moccasinshell due to protection
from adverse modification or destruction of critical habitat. In
practice, situations with a Federal nexus exist primarily on Federal
lands or for projects undertaken by Federal agencies. Additionally,
continued implementation of an ongoing management plan that provides
equal to or more conservation than a critical habitat designation would
reduce the benefits of including that specific area in the critical
habitat designation.
We describe below the process that we undertook for taking into
consideration each category of impacts and our analyses of the relevant
impacts.
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
designated areas. 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 critical habitat
designation is analyzed by comparing scenarios both ``with critical
habitat'' and ``without critical habitat.''
The ``without critical habitat'' scenario represents the baseline
for the analysis, which includes the existing regulatory and socio-
economic burden imposed on landowners, managers, or other resource
users potentially affected by the designation of critical habitat
(e.g., under the Federal listing as well as other Federal, State, and
local regulations). The baseline, therefore, represents the costs of
all efforts attributable to the listing of the species under the Act
(i.e., conservation of the species and its habitat incurred regardless
of whether critical habitat is designated). The ``with critical
habitat'' scenario describes the incremental impacts associated
specifically with the designation of critical habitat for the species.
The incremental conservation efforts and associated impacts would not
be expected without the designation of critical habitat for the
species. In other words, the incremental costs are those attributable
solely to the designation of critical habitat, above and beyond the
baseline costs. These are the costs we use when evaluating the benefits
of inclusion and exclusion of particular areas from the final
designation of critical habitat should we choose to conduct an optional
section 4(b)(2) exclusion analysis.
For this designation, we developed an incremental effects
memorandum (IEM) considering the probable incremental economic impacts
that may result from this designation of critical habitat. The
information contained in our IEM was then used to develop a screening
analysis of the probable effects of the designation (Industrial
Economics 2020, entire). The purpose of the screening analysis is to
filter out the geographic areas in which the critical habitat
designation is unlikely to result in probable incremental economic
impacts. In particular, the screening analysis considers baseline costs
(i.e., absent critical habitat designation) and includes probable
economic impacts where land and water use may be subject to
conservation plans, land management plans, best management practices,
or regulations that protect the habitat area as a result of the Federal
listing status of the species. The screening analysis filters out
particular areas of critical habitat that are already subject to such
protections and are, therefore, unlikely to incur incremental economic
impacts. Ultimately, the screening analysis allows us to focus our
analysis on evaluating the specific areas or sectors that may incur
probable incremental economic impacts as a result of the designation.
The screening analysis also assesses whether units unoccupied by the
species may require additional management or conservation efforts as a
result of the critical habitat designation, and thus may incur
incremental economic impacts. This screening analysis, combined with
the information contained in our IEM, constitute our economic analysis
of the critical habitat designation for the Suwannee moccasinshell and
is summarized in the narrative below.
Executive Orders 12866 and 13563 direct Federal agencies to assess
the costs and benefits of available regulatory alternatives in
quantitative (to the extent feasible) and qualitative terms. Consistent
with the E.O. regulatory analysis requirements, our effects analysis
under the Act may take into consideration impacts to both directly and
indirectly affected entities, where practicable and reasonable. If
sufficient data are available, we assess to the extent practicable the
probable impacts to both directly and indirectly affected entities. As
part of our screening analysis, we considered the types of economic
activities that are likely to occur within the areas likely affected by
the critical habitat designation. In our evaluation of the probable
incremental economic impacts that may result from the designation of
critical habitat for the Suwannee moccasinshell, first we identified,
in the IEM dated June 30, 2016, probable incremental economic impacts
associated with the following categories of activities: (1) Groundwater
pumping; (2) agriculture; (3) mining; (4) grazing; (5) discharge of
chemical pollutants; (6) roadway and bridge construction; (7) in-stream
dams and diversions; (8) dredging; (9) commercial or residential
development; (10) timber harvest; and (11) removal of large in-channel
logs. We considered each industry or category individually.
Additionally, we considered whether these activities would have any
Federal involvement.
Critical habitat designation generally will not affect activities
that do not have any Federal involvement; under the Act, the
designation of critical habitat only affects activities conducted,
funded, permitted, or authorized by Federal agencies. In areas where
the Suwannee moccasinshell is present, Federal
[[Page 34991]]
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. Consultations to avoid the destruction or adverse
modification of critical habitat will be incorporated into the existing
consultation process.
In our IEM, we attempted to clarify the distinction between the
effects that will result from the species being listed and those
attributable to the critical habitat designation (i.e., difference
between the jeopardy and adverse modification standards) for the
Suwannee moccasinshell's critical habitat. The following specific
circumstances in this case help to inform our evaluation: (1) The
physical or biological features identified for occupied critical
habitat are the same features essential for the life requisites of the
species and (2) any actions that would result in sufficient harm or
harassment to constitute jeopardy to the Suwannee moccasinshell would
also likely adversely affect the essential physical or biological
features of occupied critical habitat. The IEM outlines our rationale
concerning this limited distinction between baseline conservation
efforts and incremental impacts of the designation of critical habitat
for this species.
The final critical habitat designation for the Suwannee
moccasinshell totals approximately 306 kilometers (190 miles) of stream
channels in three units. The riparian lands adjacent to critical
habitat are under private (72 percent), State (27 percent), and county
(1 percent) ownership. Unit 1 is the only occupied unit and is 61
percent of the critical habitat designation. As discussed above, in
this occupied area, any actions that may affect the species or its
habitat would also affect designated critical habitat and it is
unlikely that any additional conservation efforts would be recommended
to address the adverse modification standard over and above those
recommended as necessary to avoid jeopardizing the continued existence
of the Suwannee moccasinshell. Therefore, only administrative costs are
expected in actions affecting this unit. While this additional analysis
will require time and resources by both the Federal action agency and
the Service, it is believed that, in most circumstances, these costs,
because they are predominantly administrative in nature, would not be
significant.
Units 2 and 3 are currently unoccupied by the species but are
essential for the conservation of the species. These units total 119 km
(78 mi) and comprise 39 percent of the critical habitat designation. In
these unoccupied areas, any conservation efforts or associated probable
impacts would be considered incremental effects attributed to the
critical habitat designation.
The screening analysis finds that the total annual incremental
costs of critical habitat designation for the Suwannee moccasinshell
are anticipated to be less than $100,000 per year. The highest costs
are anticipated in Unit 3 because it is unoccupied by the species and
is not already designated critical habitat for another mussel species
(for comparison, see discussion for Unit 2 below). In this unit, the
designation is anticipated to result in a small number of additional
section 7 consultations (approximately three per year), primarily
related to planned transportation projects that intersect the unit.
Anticipated project modifications may include minimizing the extent of
in-channel maintenance activities, relocation of discharge outfalls, or
requiring strict adherence of water quality and habitat protections.
Total annual costs to the Service and action agencies for consultations
and project modifications in Unit 3 are anticipated to be less than
$80,000 annually (Industrial Economics 2020, pp. 9-12).
In Units 1 and 2, the economic costs of implementing the rule will
most likely be limited to additional administrative efforts by the
Service and action agencies to consider adverse modification. Unit 1 is
occupied by the Suwannee moccasinshell, and conservation actions taken
in order to be protective of the species would also be sufficient to
protect its critical habitat. Unit 2 is also designated as critical
habitat for the oval pigtoe, a freshwater mussel with nearly identical
physical or biological features to the Suwannee moccasinshell.
Conservation efforts taken to protect oval pigtoe critical habitat
would also be sufficient to protect Suwannee moccasinshell critical
habitat. Thus, additional project modifications are not anticipated in
Units 1 and 2. In total, up to six section 7 consultations per year are
anticipated to occur in Units 1 and 2, with total costs of less than
$20,000 annually (Industrial Economics 2020, pp. 7-9).
Exclusions
Exclusions Based on Economic Impacts
We solicited data and comments from the public regarding the
economic analysis, as well as all aspects of the proposed rule. We did
not receive any additional information on economic impacts during the
public comment period to determine whether any specific areas should be
excluded from the final critical habitat designation under authority of
section 4(b)(2) and our implementing regulations at 50 CFR 424.19.
Based on the above-described consideration of the economic impacts
of the critical habitat designation, the Secretary is not exercising
his discretion to exclude any areas from this designation of critical
habitat for the Suwannee moccasinshell based on economic impacts.
A copy of the IEM and economic screening analysis with supporting
documents may be obtained by contacting the Panama City Ecological
Services Field Office or from the field office's website (see
ADDRESSES).
Exclusions Based on Impacts to National Security and Homeland Security
In preparing this rule, we determined that none of the lands within
the designated critical habitat for the Suwannee moccasinshell are
owned or managed by the Department of Defense or Department of Homeland
Security, and, therefore, we anticipate no impact on national security
or homeland security. We did not receive any additional information
during the public comment period for the proposed designation regarding
impacts of the designation on national security or homeland security
that would support excluding any specific areas from the final critical
habitat designation under authority of section 4(b)(2) and our
implementing regulations at 50 CFR 424.19.
Exclusions Based on Other Relevant Impacts
Under section 4(b)(2) of the Act, we considered any other relevant
impacts, in addition to economic impacts and impacts on national
security. We considered a number of factors including whether there are
permitted conservation plans covering the species in the area such as
HCPs, safe harbor agreements, or candidate conservation agreements with
assurances, 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 looked at the
existence of Tribal conservation plans and partnerships and consider
the government-to-government relationship of the United States with
Tribal entities. We also considered any social impacts that might occur
because of the designation.
[[Page 34992]]
In preparing this final rule, we determined that there are
currently no HCPs or other management plans for the Suwannee
moccasinshell, and the final designation does not include any Tribal
lands or trust resources. Therefore, we anticipate no impact on Tribal
lands, partnerships, or HCPs from this final critical habitat
designation. We did not receive any additional information during the
public comment period for the proposed rule regarding other relevant
impacts to support excluding any specific areas from the final critical
habitat designation under authority of section 4(b)(2) and our
implementing regulations at 50 CFR 424.19. Accordingly, the Secretary
is not exercising his discretion to exclude any areas from this final
designation based on other relevant impacts.
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.
Under the RFA, as amended, and as understood in the light of recent
court decisions, Federal agencies are required to evaluate the
potential incremental impacts of rulemaking on those entities directly
regulated by the rulemaking itself; in other words, the RFA does not
require agencies to evaluate the potential impacts to indirectly
regulated entities. The regulatory mechanism through which critical
habitat protections are realized is section 7 of the Act, which
requires Federal agencies, in consultation with the Service, to ensure
that any action authorized, funded, or carried out by the agency is not
likely to destroy or adversely modify critical habitat. Therefore,
under section 7, only Federal action agencies are directly subject to
the specific regulatory requirement (avoiding destruction and adverse
modification) imposed by critical habitat designation. Consequently, it
is our position that only Federal action agencies would be directly
regulated with the critical habitat 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 would be directly
regulated by this rulemaking, the Service certifies that the critical
habitat designation will not have a significant economic impact on a
substantial number of small entities.
In summary, we have considered whether the 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 the critical habitat designation will not
have a significant economic impact on a substantial number of small
business entities. Therefore, a regulatory flexibility analysis is not
required.
Energy Supply, Distribution, or Use--Executive Order 13211
Executive Order 13211 (Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use) requires
agencies to prepare Statements of Energy Effects when undertaking
certain actions. In our economic analysis, we did not find that this
critical habitat designation would 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
[[Page 34993]]
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 it would not produce a Federal mandate
of $100 million or greater in any year; that is, it is not a
``significant regulatory action'' under the Unfunded Mandates Reform
Act. The designation of critical habitat imposes no obligations on
State or local governments. By definition, Federal agencies are not
considered small entities, although the activities they fund or permit
may be proposed or carried out by small entities. Consequently, we do
not believe that the critical habitat designation would significantly
or uniquely affect small government entities. As such, a Small
Government Agency Plan is not required.
Takings--Executive Order 12630
In accordance with E.O. 12630 (Government Actions and Interference
with Constitutionally Protected Private Property Rights), we have
analyzed the potential takings implications of designating critical
habitat for the Suwannee moccasinshell in a takings implications
assessment. The Act does not authorize the Service to regulate private
actions on private lands or confiscate private property as a result of
critical habitat designation. Designation of critical habitat does not
affect land ownership, or establish any closures, or restrictions on
use of or access to the designated areas. Furthermore, the designation
of critical habitat does not affect landowner actions that do not
require Federal funding or permits, nor does it preclude development of
habitat conservation programs or issuance of incidental take permits to
permit actions that do require Federal funding or permits to go
forward. However, Federal agencies are prohibited from carrying out,
funding, or authorizing actions that would destroy or adversely modify
critical habitat. A takings implications assessment has been completed
and concludes that this designation of critical habitat for the
Suwannee moccasinshell does not pose significant takings implications
for lands within or affected by the designation.
Federalism--Executive Order 13132
In accordance with E.O. 13132 (Federalism), this rule does not have
significant Federalism effects. A federalism summary impact statement
is not required. In keeping with Department of the Interior and
Department of Commerce policy, we requested information from, and
coordinated development of this critical habitat designation with,
appropriate State resource agencies. From a federalism perspective, the
designation of critical habitat directly affects only the
responsibilities of Federal agencies. The Act imposes no other duties
with respect to critical habitat, either for States and local
governments, or for anyone else. As a result, the rule does not have
substantial direct effects either on the States, or on the relationship
between the national government and the States, or on the distribution
of powers and responsibilities among the various levels of government.
The designation may have some benefit to these governments because the
areas that contain the features essential to the conservation of the
species are more clearly defined, and the physical or biological
features of the habitat necessary for 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
State and local governments in long-range planning because they 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) of the Act would be required. While
non-Federal entities that receive Federal funding, assistance, or
permits, or that otherwise require approval or authorization from a
Federal agency for an action, may be indirectly impacted by the
designation of critical habitat, the legally binding duty to avoid
destruction or adverse modification of critical habitat rests squarely
on the Federal agency.
Civil Justice Reform--Executive Order 12988
In accordance with Executive Order 12988 (Civil Justice Reform),
the Office of the Solicitor has determined that the rule would 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 designated critical
habitat in accordance with the provisions of the Act. To assist the
public in understanding the habitat needs of the species, this rule
identifies the elements of physical or biological features essential to
the conservation of the species. The areas of designated 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 information collection requirements, and
a submission to the Office of Management and Budget (OMB) under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) is not
required. We may not conduct or sponsor and you are not required to
respond to a collection of information unless it displays a currently
valid OMB control number.
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
It is our position that, outside the jurisdiction of the U.S. Court
of Appeals for the Tenth Circuit, we do not need to prepare
environmental analyses pursuant to the National Environmental Policy
Act in connection with
[[Page 34994]]
designating critical habitat under the Act. We published a notice
outlining our reasons for this determination in the Federal Register on
October 25, 1983 (48 FR 49244). This position was upheld by the U.S.
Court of Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48
F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)).
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994
(Government-to-Government Relations with Native American Tribal
Governments; 59 FR 22951), Executive Order 13175 (Consultation and
Coordination With Indian Tribal Governments), and the Department of the
Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. In accordance with
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species Act),
we readily acknowledge our responsibilities to work directly with
Tribes in developing programs for healthy ecosystems, to acknowledge
that Tribal lands are not subject to the same controls as Federal
public lands, to remain sensitive to Indian culture, and to make
information available to Tribes. We have determined that no Tribal
lands would be affected by the designation.
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
Panama City Ecological Services Field Office (see FOR FURTHER
INFORMATION CONTACT).
Authors
The primary authors of this rulemaking are staff of the Panama City
Ecological Services Field Office.
Signing Authority
The Director, U.S. Fish and Wildlife Service, approved this
document and authorized the undersigned to sign and submit the document
to the Office of the Federal Register for publication electronically as
an official document of the U.S. Fish and Wildlife Service. Martha
Williams, Principal Deputy Director Exercising the Delegated Authority
of the Director, U.S. Fish and Wildlife Service, approved this document
on June 23, 2021, for publication.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Regulation Promulgation
Accordingly, we amend part 17, subchapter B of chapter I, title 50
of the Code of Federal Regulations, as set forth below:
PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; 4201-4245; unless
otherwise noted.
0
2. Amend Sec. 17.11 in paragraph (h) by revising the entry for
``Moccasinshell, Suwannee'' under ``Clams'' in the List of Endangered
and Threatened Wildlife to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
----------------------------------------------------------------------------------------------------------------
Listing citations and
Common name Scientific name Where listed Status applicable rules
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Clams
* * * * * * *
Moccasinshell, Suwannee......... Medionidus walkeri Wherever found.... T 81 FR 69417, 10/6/2016;
50 CFR 17.95(f).CH
* * * * * * *
----------------------------------------------------------------------------------------------------------------
0
3. Amend Sec. 17.95 in paragraph (f) by adding an entry for ``Suwannee
Moccasinshell (Medionidus walkeri)'' immediately after the entry for
``Fluted Kidneyshell (Ptychobranchus subtentum),'' to read as follows:
Sec. 17.95 Critical habitat--fish and wildlife.
* * * * *
(f) * * *
Suwannee Moccasinshell (Medionidus walkeri)
(1) Critical habitat units are depicted on the maps in this entry
for Alachua, Bradford, Columbia, Dixie, Gilchrist, Hamilton, Lafayette,
Madison, Suwannee, and Union Counties, Florida; and Brooks and Lowndes
Counties, Georgia.
(2) Within these areas, the physical or biological features
essential to the conservation of Suwannee moccasinshell consist of the
following components:
(i) Geomorphically stable stream channels (channels that maintain
lateral dimensions, longitudinal profiles, and sinuosity patterns over
time without an aggrading or degrading bed elevation).
(ii) Stable substrates of muddy sand or mixtures of sand and
gravel, and with little to no accumulation of unconsolidated sediments
and low amounts of filamentous algae.
(iii) A natural hydrologic flow regime (magnitude, frequency,
duration, and seasonality of discharge over time) necessary to maintain
benthic habitats where the species is found, and connectivity of stream
channels with the floodplain, allowing the exchange of nutrients and
sediment for habitat maintenance, food availability, and spawning
habitat for native fishes.
(iv) Water quality conditions needed to sustain healthy Suwannee
moccasinshell populations, including low pollutant levels (not less
than State criteria), a natural temperature regime, pH (between 6.0 to
8.5), adequate oxygen content (not less than State criteria), hardness,
turbidity, and other chemical characteristics necessary for normal
behavior, growth, and viability of all life stages.
(v) The presence of fish hosts necessary for recruitment of the
Suwannee moccasinshell. The presence of blackbanded darters (Percina
nigrofasciata) and brown darters (Etheostoma edwini) will serve as an
indication of fish host presence.
(3) Critical habitat does not include manmade structures (such as
buildings, aqueducts, dams, roads, and other paved areas) and the land
on which they
[[Page 34995]]
are located existing within the legal boundaries on August 2, 2021.
(4) Data layers defining map units were created with U.S.
Geological Survey National Hydrography Dataset GIS data. The high-
resolution 1:24,000 flowlines were used to calculate river kilometers
and miles. ESRIs ArcGIS 10.2.2 software was used to determine longitude
and latitude coordinates using decimal degrees. The projection used in
mapping all units was Universal Transverse Mercator, NAD 83, Zone 16
North. The maps in this entry, as modified by any accompanying
regulatory text, establish the boundaries of the critical habitat
designation. The coordinates on which each map is based are available
at <a href="http://www.regulations.gov">http://www.regulations.gov</a> at Docket No. FWS-R4-ES-2019-0059, the
Service's internet site (<a href="https://www.fws.gov/panamacity">https://www.fws.gov/panamacity</a>), and at the
field office responsible for this designation. You may obtain field
office location by contacting one of the Service regional offices, the
addresses of which are listed at 50 CFR 2.2.
(5) Note: Index map of critical habitat units for the Suwannee
moccasinshell in Florida and Georgia follows:
BILLING CODE 4333-15-P
[GRAPHIC] [TIFF OMITTED] TR01JY21.000
(6) Unit 1: Suwannee River in Alachua, Columbia, Dixie, Gilchrist,
Lafayette, Madison, and Suwannee Counties, Florida.
(i) Unit 1 consists of approximately 187 kilometers (km) (116 miles
(mi)) of
[[Page 34996]]
the Suwannee River and lower Santa Fe River in Alachua, Columbia,
Dixie, Gilchrist, Lafayette, Madison, and Suwannee Counties, Florida.
The unit includes the Suwannee River mainstem from the confluence of
Hart Springs in Dixie and Gilchrist Counties, upstream 137 km (85 mi)
to the confluence of the Withlacoochee River in Madison and Suwannee
Counties; and the Santa Fe River from its confluence with the Suwannee
River in Suwannee and Gilchrist Counties, upstream 50 km (31 mi) to the
river's rise (the Santa Fe River runs underground for more than 3
miles, emerging at River Rise Preserve State Park) in Alachua County.
(ii) Map of Unit 1, Suwannee River, follows:
[GRAPHIC] [TIFF OMITTED] TR01JY21.001
(7) Unit 2: Upper Santa Fe River in Alachua, Bradford, Columbia,
and Union, Counties, Florida.
(i) The Upper Santa Fe River Unit consists of approximately 43 km
(27 mi) of the Santa Fe River and New River in Alachua, Bradford,
Columbia, and Union Counties, Florida. The unit includes the Santa Fe
River from the river's sink in Alachua County, upstream 36.5 km (23 mi)
to the confluence of Rocky Creek in Bradford and Alachua Counties; and
the New River from its confluence with the Santa Fe River, upstream 6.5
km (4 mi) to the confluence of Five Mile Creek in Union and Bradford
Counties.
[[Page 34997]]
(ii) Map of Unit 2, Upper Santa Fe River, follows:
[GRAPHIC] [TIFF OMITTED] TR01JY21.002
(8) Unit 3: Withlacoochee River in Hamilton and Madison Counties,
Florida; Brooks and Lowndes Counties, Georgia.
(i) The Withlacoochee River Unit consists of approximately 75.5 km
(47 mi) of the Withlacoochee River in Hamilton and Madison Counties,
Florida, and Brooks and Lowndes Counties, Georgia. The unit includes
the Withlacoochee River from its confluence with the Suwannee River in
Madison and Hamilton Counties, FL, upstream 75.5 km (47 mi) to the
confluence of Okapilco Creek in Brooks and Lowndes Counties, GA.
(ii) Map of Unit 3, Withlacoochee River, follows:
[[Page 34998]]
[GRAPHIC] [TIFF OMITTED] TR01JY21.003
* * * * *
Anissa Craghead,
Acting Regulations and Policy Chief, Division of Policy, Economics,
Risk Management, and Analytics, Joint Administrative Operations, U.S.
Fish and Wildlife Service.
[FR Doc. 2021-13800 Filed 6-30-21; 8:45 am]
BILLING CODE 4333-15-C
</pre></body>
</html>Indexed from Federal Register on July 1, 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.