Rule2021-19093
Endangered and Threatened Wildlife and Plants; Endangered Species Status for Slenderclaw Crayfish and Designation of Critical Habitat
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
September 8, 2021
Effective
October 8, 2021
Issuing agencies
Interior DepartmentFish and Wildlife Service
Abstract
We, the U.S. Fish and Wildlife Service (Service), determine endangered species status under the Endangered Species Act of 1973, as amended (Act), for the slenderclaw crayfish (Cambarus cracens), a cryptic freshwater crustacean that is endemic to streams on Sand Mountain within the Tennessee River Basin in DeKalb and Marshall Counties, Alabama. This rule adds this species to the Federal List of Endangered and Threatened Wildlife. In addition, we designate approximately 78 river miles (126 river kilometers) in DeKalb and Marshall Counties, Alabama, as critical habitat for the species under the Act.
Full Text
<html>
<head>
<title>Federal Register, Volume 86 Issue 171 (Wednesday, September 8, 2021)</title>
</head>
<body><pre>
[Federal Register Volume 86, Number 171 (Wednesday, September 8, 2021)]
[Rules and Regulations]
[Pages 50264-50287]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-19093]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R4-ES-2018-0069; FF09E21000 FXES11110900000 212]
RIN 1018-BD36
Endangered and Threatened Wildlife and Plants; Endangered Species
Status for Slenderclaw Crayfish and Designation of Critical Habitat
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: We, the U.S. Fish and Wildlife Service (Service), determine
endangered species status under the Endangered Species Act of 1973, as
amended (Act), for the slenderclaw crayfish (Cambarus cracens), a
cryptic freshwater crustacean that is endemic to streams on Sand
Mountain within the Tennessee River Basin in DeKalb and Marshall
Counties, Alabama. This rule adds this species to the Federal List of
Endangered and Threatened Wildlife. In addition, we designate
approximately 78 river miles (126 river kilometers) in DeKalb and
Marshall Counties, Alabama, as critical habitat for the species under
the Act.
DATES: This rule is effective October 8, 2021.
ADDRESSES: This final rule is available on the internet at <a href="http://www.regulations.gov">http://www.regulations.gov</a> under Docket No. FWS-R4-ES-2018-0069 and at <a href="https://www.fws.gov/southeast/">https://www.fws.gov/southeast/</a>. Comments and materials we received, as well as
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> under Docket No.
FWS-R4-ES-2018-0069. Comments, materials, and documentation that we
considered in this rulemaking will be available by appointment, during
normal business hours at: U.S. Fish and Wildlife Service, Alabama
Ecological Services Field Office (see For Further Information Contact).
The coordinates or plot points or both from which the maps are
generated are included in the administrative record for this critical
habitat designation and are available at <a href="http://www.regulations.gov">http://www.regulations.gov</a>
under Docket No. FWS-R4-ES-2018-0069, at <a href="https://www.fws.gov/southeast/">https://www.fws.gov/southeast/</a>
, and at the Alabama Ecological Services Field Office (see For Further
Information Contact). Any additional tools or supporting information
that we developed for this critical habitat designation will also be
available at the Service website and Field Office set out above, and
may also be included in the preamble and/or at <a href="http://www.regulations.gov">http://www.regulations.gov</a>.
FOR FURTHER INFORMATION CONTACT: William Pearson, Field Supervisor,
U.S. Fish and Wildlife Service, Alabama Ecological Services Field
Office, 1208-B Main Street, Daphne, AL 36526; telephone 251-441-5870.
Persons who use a telecommunications device for the deaf (TDD) may call
the Federal Relay Service at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. Under the Act, a species may warrant
protection through listing if it is endangered or threatened throughout
all or a significant portion of its range. In addition, to the maximum
extent prudent and determinable, we must designate critical habitat for
any species that we determine to be an endangered or threatened species
under the Act. Listing a species as an endangered or threatened species
and designation of critical habitat can only be completed by issuing a
rule.
What this rule does. This rule will list the slenderclaw crayfish
(Cambarus cracens) as an endangered species and will finalize the
designation of critical habitat for the species under the Act.
Accordingly, this rule revises part 17 of title 50 of the Code of
Federal Regulations at 50 CFR 17.11 and 17.95.
The basis for our action. Under the Act, we may determine that a
species is an endangered or threatened species based on any of five
factors: (A) The present or threatened destruction, modification, or
curtailment of its habitat or range; (B) overutilization for
commercial, recreational, scientific, or educational purposes; (C)
disease or predation; (D) the inadequacy of existing regulatory
mechanisms; or (E) other natural or manmade factors affecting its
continued existence. We have determined that the slenderclaw crayfish
is threatened by competition from a nonnative species (Factors A and E)
and habitat degradation resulting from poor water quality (Factor A).
Under section 4(a)(3) of the Act, if we determine that any species
is an endangered or threatened species we must, to the maximum extent
prudent and determinable, designate critical habitat. Under section
4(b)(2) of the Act, the Secretary shall designate critical habitat on
the basis of the best available scientific data after taking into
consideration the economic impact, national security impact, and any
other
[[Page 50265]]
relevant impact of specifying any particular area as critical habitat.
Section 3(5)(A) of the Act defines critical habitat as (i) the specific
areas within the geographical area occupied by the species, at the time
it is listed, on which are found those physical or biological features
(I) essential to the conservation of the species and (II) which may
require special management considerations or protections; and (ii)
specific areas outside the geographical area occupied by the species at
the time it is listed, upon a determination by the Secretary that such
areas are essential for the conservation of the species.
Economic analysis. In accordance with section 4(b)(2) of the Act,
we prepared a draft economic analysis of the impacts of designating
critical habitat. We published an announcement of the completion of the
draft and solicited public comments (83 FR 50582; October 9, 2018). We
received no comments on the draft economic analysis. We adopt the draft
economic analysis as final.
Peer review and public comment. We sought comments from independent
specialists to ensure that our designation is based on scientifically
sound data, assumptions, and analyses. We invited these peer reviewers
to comment on our species status assessment (SSA) report, which
informed both the proposed rule and this final rule. We also considered
all comments and information received from the public and peer
reviewers during the comment period.
Supporting Documents
We prepared an SSA report for the slenderclaw crayfish. Written in
consultation with species experts, the SSA report represents the best
scientific and commercial data available concerning the status of the
slenderclaw crayfish, including the impacts of past, present, and
future factors (both adverse and beneficial) affecting the species
(Service 2019, entire). The SSA report underwent independent peer
review by scientists with expertise in crayfish biology, habitat
management, and stressors (factors negatively affecting the species) to
the slenderclaw crayfish. The SSA report, the proposed rule, this final
rule, and other materials relating to this rulemaking can be found on
the Service's Southeast Region website at <a href="https://www.fws.gov/southeast/">https://www.fws.gov/southeast/</a> and at <a href="http://www.regulations.gov">http://www.regulations.gov</a> under Docket No. FWS-R4-
ES-2018-0069.
Previous Federal Actions
On October 9, 2018, we published in the Federal Register a proposed
rule (83 FR 50582) to list the slenderclaw crayfish as a threatened
species with provisions under section 4(d) of the Endangered Species
Act of 1973, as amended (16 U.S.C. 1531 et seq.) and to designate
critical habitat. Please refer to that proposed rule for a detailed
description of all previous Federal actions concerning this species.
Background
The slenderclaw crayfish is a relatively small, cryptic freshwater
crustacean, with an average lifespan of 2 to 3 years, that is endemic
to streams on Sand Mountain within the Tennessee River Basin in DeKalb
and Marshall Counties, Alabama. Primarily due to the invasion of
nonnative virile crayfish (Faxonius virilis) that prey upon and compete
with the slenderclaw crayfish, in addition to habitat degradation
resulting in poor water quality, the species' range is reduced with
extirpation at some sites and low condition in both populations
currently.
Please refer to the October 9, 2018, proposed listing and
designation of critical habitat rule for the slenderclaw crayfish (83
FR 50582) and the SSA report for a full summary of species information.
Both are available on the Service's Southeast Region website at <a href="https://www.fws.gov/southeast/">https://www.fws.gov/southeast/</a> and at <a href="http://www.regulations.gov">http://www.regulations.gov</a> under Docket
No. FWS-R4-ES-2018-0069.
Summary of Comments and Recommendations
In the October 9, 2018, proposed listing and critical habitat rule
(83 FR 50582), we requested that all interested parties submit written
comments on the proposal by December 10, 2018. We also contacted
appropriate Federal and State agencies, scientific experts and
organizations, and other interested parties and invited them to comment
on the proposal. A newspaper notice inviting general public comment was
published in the Guntersville (Alabama) Advertiser Gleam on October 17,
2018. We did not receive any requests for a public hearing. All
substantive information provided during the comment period has either
been incorporated directly into the SSA report or this final
determination or is addressed below, as appropriate.
Peer Reviewer Comments
In accordance with our joint policy on peer review published on
July 1, 1994 (59 FR 34270), and our August 22, 2016, memorandum
updating and clarifying the role of peer review of listing actions
under the Act, we solicited the expert opinions from six knowledgeable
individuals with scientific expertise that included familiarity with
slenderclaw crayfish and its habitat, biological needs, and threats. We
received responses from two peer reviewers.
We reviewed all comments received from the peer reviewers for
substantive issues and new information regarding the slenderclaw
crayfish, and we updated the SSA report prior to the proposed rule. The
peer reviewers generally concurred with our methods and conclusions and
provided additional information, clarifications, and suggestions to
improve the final SSA report. Peer reviewer comments were incorporated
into the SSA report and this final rule as appropriate. In our response
to peer reviewer comments, we only address issues that were not
reflected in changes to the SSA report or this final rule.
Comment: One peer reviewer suggested that we project increased
variability in rainfall instead of change in annual mean precipitation
in our future condition projections. The reviewer noted that one
historic drought could potentially eliminate one of these populations,
and we do not understand the effects of flooding on the slenderclaw
crayfish. In addition, the reviewer noted that considering climate-
induced variability with urbanization could lead to a higher
probability of occasional stream drying.
Our response: Although we did not use a model to project increased
variability in rainfall as the commenter suggested, in the SSA, we did
account for increased variability in rainfall and the hydrological
impacts from precipitation change in our future-scenario projections
and predictions of the slenderclaw crayfish. To assess the future
condition of slenderclaw crayfish, we projected how precipitation can
change in order to understand potential future hydrologic impacts
within the system. Based on this information, we developed future
scenarios on the plausible range in the hydrologic impacts from
precipitation change as well as other factors influencing the viability
of the slenderclaw crayfish.
Public Comments
We received 10 public comments on the proposed listing rule and
critical habitat rule. Where commenters provided substantive comments
or new information concerning the proposed listing and species-specific
section 4(d) rule for the slenderclaw crayfish, we incorporated this
information into the final SSA report and this final rule as
appropriate.
(1) Comment: One commenter expressed concern about the presence of
the virile crayfish in slenderclaw
[[Page 50266]]
crayfish habitat and provided additional information and references on
research of the effects of virile crayfish on other crayfish species.
The commenter noted the virile crayfish has been attributed to decline
of other native crayfish species in rivers and streams in West
Virginia, Idaho, Wyoming, and Utah.
Our response: We appreciate the additional information and
references provided regarding the virile crayfish effects to other
native crayfish species. We incorporated the information from the
additional studies of virile crayfish into the appropriate section of
the SSA report (Service 2019, pp. 16-17). We further considered the
additional information about the invasion of virile crayfish and what
the impact is to the current condition of the slenderclaw crayfish.
After further consideration of the invasion of virile crayfish, coupled
with the low abundance of slenderclaw crayfish, we determined the risk
of extinction for the slenderclaw crayfish is higher (see Determination
of Slenderclaw Status, below) than we characterized in the proposal to
list the slenderclaw crayfish as a threatened species. Based on the
documented past expansion of the virile crayfish, current invasion and
expansion into the slenderclaw crayfish's range in both populations
will occur. Therefore, the slenderclaw crayfish is currently at risk of
extinction as a result of the virile crayfish expansion. We reassessed
the best available scientific and commercial data available regarding
the slenderclaw crayfish to evaluate its status under the Act (see
Determination of Slenderclaw Crayfish Status, below).
(2) Comment: Several other commenters expressed their opinion that
the Service should list the species as endangered, rather than
threatened, and stated reasons including degradation of its habitat,
inadequacy of existing regulatory mechanisms, small population size,
competition with virile crayfish, and climate change. One commenter
specifically identified kudzu (Pueraria montana), an invasive plant, as
a current and future threat to the riparian habitat in the range of the
slenderclaw crayfish. In addition, the commenter noted that degradation
of habitat for the slenderclaw crayfish is ongoing despite existing
regulatory mechanisms.
Our response: When we evaluated the best available information, we
concluded that kudzu was not a threat to the slenderclaw crayfish.
Although we recognize that kudzu can alter habitat, this plant has not
been documented to impact the slenderclaw crayfish. As to habitat
degradation, as discussed under the Summary of Biological Status and
Threats and Determination sections of the preamble of this final
listing rule, we determined that existing regulatory mechanisms
currently address the threat of habitat degradation. Other than
identifying kudzu as a potential threat, the commenters did not provide
any new information regarding current threats to the slenderclaw
crayfish or its current status that was not already considered in the
SSA report or proposed rule. However, as stated above under Our
Response to (1) Comment, based on new information about the invasive
virile crayfish, coupled with known information about slenderclaw
crayfish abundance, we determined the slenderclaw crayfish meets the
definition of an endangered species (see Determination of Slenderclaw
Crayfish Status, below).
(3) Comment: Two commenters stated that the slenderclaw crayfish
has been extirpated from 80 percent of its historical range, citing
information from a status survey for three rare crayfishes, including
the slenderclaw crayfish (Kilburn et al. 2012, entire).
Our response: As discussed in Kilburn et al. (2012, entire), the
slenderclaw crayfish was only ever known to occur at five historical
sites within two watersheds, Short and Town Creeks, and the authors did
not find the slenderclaw crayfish outside these two watersheds. Since
the publication of Kilburn et al. (2012, entire), recent surveys
conducted in 2015 through 2017 identified the slenderclaw crayfish
occurring at three new sites within this historical range. Although
there is evidence of reduced abundance and presumed extirpation at four
historical sites within this range, there are currently two populations
of slenderclaw crayfish occurring across the range in Alabama, and the
slenderclaw crayfish occurs within the two watersheds where it
historically was known to occur. In short, at this time, the
slenderclaw crayfish has not been extirpated from 80 percent of its
historical range. Please refer to section 2.5 Range and Distribution in
the SSA report for additional information on the historical and current
range of the species.
(4) Comment: The Tennessee Valley Authority (TVA) recommended that
the planting of bare-root seedlings as a method to revegetate and
stabilize streambanks be included in the 4(d) rule. TVA has found this
method to be successful for establishing a diversity of vegetation
within riparian zones.
Our response: We agree that the planting of bare-root seedlings as
a method to revegetate and stabilize streambanks would be beneficial to
slenderclaw crayfish. However, in this final rule, the Service has
determined that the slenderclaw crayfish meets the definition of an
endangered species, and the Act does not allow issuance of a 4(d) rule
for a species listed as endangered.
Summary of Changes From the Proposed Rule
The final rule incorporates changes to our proposed listing rule
and SSA Report based on the comments we received, as discussed in the
Summary of Comments and Recommendations. Based on comments received and
our further consideration of the invasion of virile crayfish coupled
with low abundance of slenderclaw crayfish, we determined the risk of
extinction is higher (see Determination, below) than we characterized
in the proposal to list the slenderclaw crayfish as a threatened
species (83 FR 50582; October 9, 2018). We reassessed our analysis and
found that the documented expansion and invasion of the virile crayfish
in the slenderclaw crayfish's range, along with additional information
regarding impacts to other native crayfish species and known low
abundance in both populations of the slenderclaw crayfish, places the
slenderclaw crayfish at a high risk for extinction throughout its
range. Thus, after evaluating the best available information and the
Act's regulation and policies, we determined that the slenderclaw
crayfish meets the definition of an endangered species, and such status
is more appropriate than that of a threatened species as originally
proposed. Because we determined that the slenderclaw crayfish meets the
definition of an endangered species, a 4(d) rule is inapplicable;
consequently, the proposed special rule under the authority of section
4(d) of the Act was removed from the final rule. We received no
substantive comments on the proposed critical habitat designation;
accordingly, there are no changes in the final designation. Lastly, we
made minor editorial and nonsubstantive corrections throughout the SSA
report and this final rule.
Summary of Biological Status and Threats
We completed a comprehensive assessment of the biological status of
the slenderclaw crayfish and prepared an SSA report (Service 2019,
entire), which provides a thorough account of the species' overall
viability. Below, we summarize the key results and conclusions of the
SSA report.
To evaluate the current and future viability of the slenderclaw
crayfish, we assessed the three conservation biology
[[Page 50267]]
principles of resiliency, redundancy, and representation (the ``3 Rs''
described in detail in the SSA report) (Shaffer and Stein 2000, pp.
306-310). Briefly, resiliency supports the ability of the species to
withstand environmental and demographic stochasticity (for example, wet
or dry, warm or cold years), redundancy supports the ability of the
species to withstand catastrophic events (for example, droughts, large
pollution events), and representation supports the ability of the
species to adapt over time to long-term changes in the environment (for
example, climate changes). In general, the more resilient and redundant
a species is and the more representation it has, the more likely it is
to sustain populations over time, even under changing environmental
conditions. Using these principles, we identified the species'
ecological requirements for survival and reproduction at the
individual, population, and species levels, and described the
beneficial and risk factors influencing the species' viability.
The historical range of the slenderclaw crayfish included two known
populations, Short and Town Creeks, in watersheds leading into the
Tennessee River in Alabama. Within the Short Creek population, a total
of 90 slenderclaw crayfish, with 56 of those being juveniles, were
collected during the period 1970-1974 (Bouchard and Hobbs 1976, entire;
Schuster 2017, unpublished data). Historically, only one crayfish was
collected in the Town Creek population in the period 1970-1974
(Bouchard and Hobbs 1976, entire; Schuster 2017, unpublished data).
Surveys conducted from 2009 through 2017 have documented the
slenderclaw crayfish within the same two populations, Short Creek
(three sites in Shoal Creek) and Town Creek (one site in Bengis Creek
and one site in Town Creek) (Kilburn et al. 2014, pp. 116-117; Bearden
et al. 2017, pp. 17-18; Schuster 2017, unpublished data; Taylor 2017,
unpublished data).
Of the five historical sites, the slenderclaw crayfish is no longer
found and is presumed extirpated at three sites in the Short Creek
population (one site in Short Creek and two sites in Scarham Creek) and
one site in the Town Creek population (one site in Bengis Creek)
despite repeated survey efforts (Kilburn et al. 2014, pp. 116-117;
Bearden et al. 2017, pp. 17-18; Schuster 2017, unpublished data; Taylor
2017, unpublished data). Across current survey efforts from 2009
through 2017, researchers collected 28 slenderclaw crayfish, including
2 juveniles, within the Short Creek population, and 2 adults and 2
juveniles from the Town Creek population. There are no actual
historical or current population estimates for slenderclaw crayfish,
and the abundance numbers (total number collected) reported are not
population estimates.
At the population level, the overall current condition in terms of
resiliency was determined to be low for both Short Creek and Town Creek
populations. We estimate that the slenderclaw crayfish currently has
some adaptive potential (i.e., representation) due to the habitat
variability features occurring in the Short Creek and Town Creek
populations. The Short Creek population occurs in streams with
predominantly large boulders and fractured bedrock, broader stream
widths, and greater depths, and the Town Creek population occurs in
streams with larger amounts of gravel and cobble, narrower stream
widths, and shallower depths (Bearden 2017, pers. comm.). At present,
the slenderclaw crayfish has two populations in low condition
(resiliency) with habitat types that vary between populations.
Therefore, given the variable habitat in which the slenderclaw crayfish
occurs, the species may have some level of adaptive capacity. Given the
low resiliency of both populations of the slenderclaw crayfish, current
representation is reduced.
The slenderclaw crayfish exhibits limited redundancy given its
narrow range and that four out of five sites within the species'
historical range are presumed extirpated. In addition, connectivity
between the Short Creek and Town Creek populations is likely low,
because both Short and Town Creek streams flow downstream into, and
thus are separated by, Guntersville Lake. To date, no slenderclaw
crayfish have been documented in impounded areas including Guntersville
Lake. Multiple sites in the same population could allow recolonization
following a catastrophic event (e.g., chemical spill) that may affect a
large proportion of a population; however, given the species' limited
redundancy and current low resiliency of both populations, it might be
difficult to reestablish an entire population affected by a
catastrophic event, as the connectivity between the two populations is
low. Further, the currently occupied sites in the Short Creek
population are in a single tributary, and one catastrophic event could
impact this entire population.
Risk Factors for Slenderclaw Crayfish
The Act directs us to determine whether any species is an
endangered species or a threatened species because of any factors
affecting its continued existence. Under section 4(a)(1) of the Act, we
may list a species based on (A) The present or threatened destruction,
modification, or curtailment of its habitat or range; (B)
overutilization for commercial, recreational, scientific, or
educational purposes; (C) disease or predation; (D) the inadequacy of
existing regulatory mechanisms; or (E) other natural or manmade factors
affecting its continued existence.
We reviewed the potential risk factors (i.e., threats or stressors)
that are affecting the slenderclaw crayfish now and are expected to
affect it into the future. Because we have determined that the species
is currently in danger of extinction throughout its range, in this
final rule we will discuss in detail only those threats that we
conclude are driving the current status and viability of the species.
We have determined that competition from a nonnative species (Factors A
and E), habitat degradation resulting from poor water quality (Factor
A), and low abundance (Factor E) pose the largest risk to the current
viability of the slenderclaw crayfish. Other potential stressors to the
species--hydrological variation and alteration (Factors A and E), land
use (Factor A), and scientific collection (Factor B)--are discussed in
the SSA report and proposed rule. Currently existing regulatory
mechanisms, such as regulations implemented under the Clean Water Act
to protect water quality and instream habitat, address the habitat
degradation threat to the slenderclaw crayfish. However, we also found
that existing regulatory mechanisms do not address, nor do they
contribute to, the threat of the nonnative virile crayfish, which is
the primary threat to the slenderclaw crayfish. We find the species
does not face significant threats from disease or predation (Factor C).
We also reviewed the conservation efforts being undertaken for the
habitat in which the slenderclaw crayfish occurs.
Nonnative Species
The virile crayfish (Faxonius virilis), previously recognized as
Orconectes virilis (Crandall and De Grave 2017, p. 5), is a crayfish
native to the Missouri, upper Mississippi, lower Ohio, and the Great
Lakes drainages (Service 2015, p. 1). The species has spread from its
native range through dispersal as fishing bait, as pets, and through
commercial (human) consumption (Schwartz et al. 1963, p. 267; Service
2015, p. 4). Virile crayfish inhabit a variety of watersheds in the
United States, including those with very few to no native crayfish
species, and have been found in lake, wetland, and stream environments
[[Page 50268]]
(Larson et al. 2010, p. 2; Loughman and Simon 2011, p. 50). Virile
crayfish are generalists, able to withstand various conditions, and
have the natural tendency to migrate (Loughman and Simon 2011, p. 50).
This species has been documented to spread approximately 124 mi (200
km) over 15 years (B. Williams 2018, pers. comm.; Williams et al. 2011,
entire).
Based on comparison of body size, average claw size, aggression
levels, and growth rates, it appears that the virile crayfish has an
ecological advantage over several native crayfish species, including
those in the Cambarus and Procambarus genera (Hale et al. 2016, p. 6).
In addition, virile crayfish have been documented to displace native
crayfish (Hubert 2010, p. 5; Loughman and Welsh 2010, pp. 70 and 72).
Virile crayfish were first collected near the range of slenderclaw
crayfish in 1967 (Schuster 2017, unpublished data). Since then, the
virile crayfish has been documented in Guntersville Lake (a Tennessee
Valley Authority reservoir constructed in 1939, on the Tennessee River
mainstem) (Schuster 2017, unpublished data; Taylor 2017, unpublished
data). In addition, the virile crayfish was found in 2015 at the type
locality (location where the species was first described) for the
slenderclaw crayfish in Short Creek (Short Creek population), in which
the slenderclaw crayfish no longer occurs (Schuster 2017, unpublished
data; Taylor 2017, unpublished data). In 2016, the virile crayfish was
found at two sites in Drum Creek within the Short Creek population
boundary and at the confluence of Short Creek and Guntersville Lake
(Schuster 2017, unpublished data; Taylor 2017, unpublished data).
During 2017, 20 virile crayfish were again found at the location where
slenderclaw crayfish was first described in Short Creek (Taylor 2017,
unpublished data). Also during 2017, this nonnative crayfish was
documented at four new sites in adjacent watersheds outside of the
Short Creek population boundary. Juvenile virile crayfish have been
collected in the Short Creek population, indicating that the species is
established there (Taylor 2017, unpublished data). To date, no virile
crayfish have been documented within the Town Creek population boundary
(Schuster 2017, unpublished data; Taylor 2017, unpublished data).
The adaptive nature of the virile crayfish, the effects of this
nonnative species on other crayfish species in their native ranges, and
records of the virile crayfish's presence in the slenderclaw crayfish's
historical and current range indicate that the virile crayfish is a
factor that negatively influences the viability of the slenderclaw
crayfish in the near term and future. Also, considering that the virile
crayfish is a larger crayfish, is a strong competitor, and tends to
migrate, while the slenderclaw crayfish has low abundance and is a
smaller bodied crayfish, it is reasonable to conclude that once the
virile crayfish is established at a site, it will out-compete
slenderclaw crayfish.
Water Quality
Direct impacts of poor water quality on the slenderclaw crayfish
are unknown; however, aquatic macroinvertebrates (i.e., mayflies,
caddisflies, stoneflies) are negatively affected by poor water quality,
and this may indirectly impact the slenderclaw crayfish, which likely
feeds on them. Degradation of water quality impacts aquatic
macroinvertebrates and may even cause stress to individual crayfish
(Arthur et al. 1987, p. 328; Devi and Fingerman 1995, p. 749; Rosewarne
et al. 2014, p. 69). Although crayfish generally have a higher
tolerance to ammonia than some aquatic species (i.e., mussels), their
food source, larval insects, is impacted by ammonia at lower
concentrations (Arthur et al. 1987, p. 328). Juvenile slenderclaw
crayfish likely feed exclusively on aquatic macroinvertebrates, which
are impacted by elevated ammonia and poor water quality.
Within the range of the slenderclaw crayfish, Scarham Creek and
Town Creek were identified as impaired waters by the Alabama Department
of Environmental Management (ADEM). These creeks were listed in 1996
and 1998, respectively, on Alabama's list of impaired water bodies
(list of waterbodies that do not meet established State water quality
standards) under section 303(d) of the Clean Water Act (hereafter,
``the 303(d) list'') (ADEM 1996, p. 1; ADEM 2001, p. 11). Scarham Creek
was placed on the 303(d) list for impacts from pesticides, siltation,
ammonia, low dissolved oxygen/organic enrichment, and pathogens from
agricultural sources; this section of Scarham Creek stretched 24 mi (39
km) upstream from its confluence with Short Creek to its source (ADEM
2013, p. 1). However, Scarham Creek was removed from Alabama's 303(d)
list of impaired waters in 2004, after the total maximum daily loads
(TMDLs; maximum amount of a pollutant or pollutants allowed in a water
body while still meeting water quality standards) were developed in
2002 (ADEM 2002, p. 5; ADEM 2006, entire). Town Creek was previously
listed on the 303(d) list for ammonia and organic enrichment/dissolved
oxygen impairments. Although TMDLs have been in development for these
issues (ADEM 1996, entire), all of Town Creek is currently on the
303(d) list for mercury contamination due to atmospheric deposition
(ADEM 2016a, appendix C). One identified source of wastewater discharge
to Town Creek is Hudson Foods near Geraldine, Alabama (ADEM 1996, p.
1).
Pollution from nonpoint sources stemming from agriculture, animal
production, and unimproved roads has been documented within the range
of the slenderclaw crayfish (Bearden et al. 2017, p. 18). Alabama is
ranked third in the United States for broiler (chicken) production
(Alabama Poultry Producers 2017, unpaginated), and DeKalb and Marshall
Counties are two of the four most active counties in Alabama for
poultry farming (Conner 2008, unpaginated). Poultry farms and poultry
litter (a mixture of chicken manure, feathers, spilled food, and
bedding material that frequently is used to fertilize pastureland or
row crops) have been documented to contain nutrients, pesticides,
bacteria, heavy metals, and other pathogens (Bolan et al. 2010, pp.
676-683; Stolz et al. 2007, p. 821). A broiler house containing 20,000
birds will produce approximately 150 tons of litter a year (Ritz and
Merka 2013, p. 2). Surface-spreading of litter allows runoff from heavy
rains to carry nutrients from manure into nearby streams. Poultry
litter spreading is a practice that occurs within the Short Creek
watershed (Short Creek population of slenderclaw crayfish) (Top of
Alabama Regional Council of Governments 2015, p. 8).
During recent survey efforts, water quality was impaired due to
nutrients and bacteria within the Short Creek population, and levels of
atrazine may be of concern in the watershed (Bearden et al. 2017, p.
32). In Bengis Creek (Town Creek population), lead measurements
exceeded the acute and chronic aquatic life criteria set by the U.S.
Environmental Protection Agency (EPA) and ADEM (Bearden et al. 2017, p.
32; ADEM 2017, p. 10-7). These criteria are based on levels developed
by the EPA and ADEM to protect fish and wildlife (ADEM 2017, entire),
and exceedance of these values is likely to harm animal or plant life
(EPA 2018b, unpaginated). Elevated ammonia concentrations in Town Creek
were also documented and reflected nonpoint source pollution at low-
flow and high-flow measurements (Bearden et al. 2017, p. 21). In late
summer and fall surveys, potential eutrophication likely stemming from
low-water conditions, elevated nutrients, and low dissolved oxygen was
documented within both
[[Page 50269]]
Short and Town Creek watersheds (Bearden et al. 2017, p. 31).
Low Abundance
The number of slenderclaw crayfish is currently low, with only two
populations and few individuals within each population, which is
reflected in the species' low resiliency, redundancy, and
representation. The current estimated low abundance (n=32) and genetic
drift may negatively affect populations of the slenderclaw crayfish. In
general, the fewer populations a species has or the smaller the sizes
of those populations, the greater the likelihood of extinction by
chance alone (Shaffer and Stein 2000, p. 307). Genetic drift occurs in
all species but is more likely to negatively affect populations that
have a smaller effective population size (Caughley 1994, pp. 219-220;
Huey et al. 2013, p. 10). There are only two populations of the
slenderclaw crayfish with limited connectivity between those
populations, which may have reduced genetic diversity. However, no
testing for genetic drift has been conducted for the slenderclaw
crayfish.
Synergistic Effects
In addition to impacting the species individually, it is likely
that several of the risk factors are acting synergistically or
additively on the species. The combined impact of multiple stressors is
likely more harmful than a single stressor acting alone. For example,
in the Town Creek watershed, Town Creek was previously listed as an
impaired stream due to ammonia and organic enrichment/dissolved oxygen
impairments, and recent surveys documented eutrophic conditions of
elevated nutrients and low dissolved oxygen. In addition, hydrologic
variation and alteration has occurred within the Town Creek watershed
as discussed further in the SSA report. Low-water conditions naturally
occur in streams where the slenderclaw crayfish occurs, and alteration
causing prolonged low-water periods could have a negative impact on the
reproductive success of the slenderclaw crayfish. Further, connectivity
between Town Creek and Short Creek watersheds is likely low due to
Guntersville Lake. The combination of all of these stressors on the
sensitive aquatic species in this habitat has probably impacted
slenderclaw crayfish, in that only four individuals have been recorded
there since 2009.
Conservation Actions
TMDLs have been developed in Scarham Creek for siltation, ammonia,
pathogens, organic enrichment/low dissolved oxygen, and pesticides
(ADEM 2002, p. 5). Town Creek is currently on the 303(d) list for
mercury contamination due to atmospheric deposition (ADEM 2016a,
appendix C). However, a TMDL for organic enrichment/dissolved oxygen
has been developed for Town Creek (ADEM 1996, entire). Through the
303(d) program, ADEM provides funding derived under section 319 of the
Clean Water Act to improve water quality in the watersheds. In 2014,
the Upper Scarham Creek Watershed was selected as a priority by ADEM
for the development of a watershed management plan. In Fiscal Year
2016, the DeKalb County Soil and Water Conservation District contracted
with ADEM to implement the Upper Scarham Creek Watershed Project using
section 319 funding (ADEM 2016b, p. 39).
The U.S. Department of Agriculture's Natural Resources Conservation
Service (NRCS) National Water Quality Initiative program identified the
Guntersville Lake/Upper Scarham Creek in DeKalb County as an Alabama
Priority Watershed in 2015 (NRCS 2017, unpaginated). This watershed is
within the historical range of the slenderclaw crayfish. It is
recognized as in need of conservation practices, as it was listed on
the Alabama 303(d) list as impaired due to organic enrichment/low
dissolved oxygen and ammonia as nitrogen (ADEM 2002, p. 4). The
National Water Quality Initiative helps farmers, ranchers, and forest
landowners improve water quality and aquatic habitats in impaired
streams through conservation and management practices. Such practices
include controlling and trapping nutrient and manure runoff, and
installation of cover crops, filter strips, and terraces.
Future Condition of the Slenderclaw Crayfish
For the purpose of this assessment, we define viability as the
ability of the species to sustain populations in the wild over time. As
part of the SSA, to help address uncertainty associated with the degree
and extent of potential future stressors and their impacts on the needs
of the species, the concepts of resiliency, redundancy, and
representation were applied using three plausible future scenarios. We
devised these scenarios by identifying information on the following
primary stressors that are anticipated to affect the species in the
future: Nonnative virile crayfish, hydrological variation
(precipitation and water quantity), land-use change, and water quality.
However, having determined that the current condition of the
slenderclaw crayfish is consistent with that of an endangered species
(see Determination of Slenderclaw Crayfish Status, below), the results
of the future scenarios are not material to our decision, and
therefore, we are not presenting the results in this final rule. Please
refer to the proposed listing and designation of critical habitat rule
for the slenderclaw crayfish (83 FR 50582; October 9, 2018) and the SSA
report (Service 2018, entire) for the full analysis of future
conditions and descriptions of the associated scenarios.
Determination of Slenderclaw Crayfish Status
We have carefully assessed the best scientific and commercial
information available regarding the past, present, and future threats
to the slenderclaw crayfish. Section 4 of the Act (16 U.S.C. 1533) and
its implementing regulations (50 CFR part 424) set forth the procedures
for determining whether a species meets the definition of an endangered
species or a threatened species. The Act defines an endangered species
as a species ``in danger of extinction throughout all or a significant
portion of its range,'' and a threatened species as a species ``likely
to become an endangered species within the foreseeable future
throughout all or a significant portion of its range.'' The Act
requires that we determine whether a species meets the definition of
``endangered species'' or ``threatened species'' because of any of the
following factors: (A) The present or threatened destruction,
modification, or curtailment of its habitat or range; (B)
Overutilization for commercial, recreational, scientific, or
educational purposes; (C) Disease or predation; (D) The inadequacy of
existing regulatory mechanisms; or (E) Other natural or manmade factors
affecting its continued existence.
Status Throughout All of Its Range
After evaluating threats to the species and assessing the
cumulative effect of the threats under the section 4(a)(1) factors, we
have determined the slenderclaw crayfish to be endangered throughout
all of its range. Our review of the best available information
indicates that there are currently two populations of slenderclaw
crayfish in low condition occurring across the species' historical
range in Alabama. Despite the species being identified at three new
sites as reflected by recent increased survey efforts, there is
substantial evidence of reduced abundance (current estimate of n=32)
and presumed extirpation at four historical sites. In the Short Creek
population, 28 slenderclaw crayfish
[[Page 50270]]
were collected during surveys from 2009 through 2017; in the Town Creek
population, only 4 slenderclaw crayfish were collected during this same
time period. Further, there is evidence of limited reproduction with
only 3 juveniles collected from both populations since 2016. The
slenderclaw crayfish exhibits low natural redundancy given its narrow
range, but given presumed extirpation of sites within both populations,
the species' redundancy is further limited.
Several sources of indirect water quality impacts on both
populations have been identified. However, no direct water quality-
related impacts are known at this time, and crayfish generally have a
higher tolerance to poor water quality conditions than other aquatic
species. In addition, currently existing regulatory mechanisms, such as
establishing TMDLs, are addressing the effects of poor water quality on
the slenderclaw crayfish.
Currently, one of the primary threats to the slenderclaw crayfish
is the nonnative virile crayfish. The virile crayfish is a larger
crayfish, a strong competitor, and tends to migrate, and has been
attributed to declines of other native crayfish species. Considering
these characteristics of the virile crayfish and the size (small-
bodied) of the slenderclaw crayfish, it is reasonable to infer that
once virile crayfish is established at a site it will out-compete
slenderclaw crayfish. This may already be the case at the slenderclaw
crayfish type locality where virile crayfish were found in recent
surveys. At present, the virile crayfish has been reported as occurring
at only one site, the type locality, where the slenderclaw crayfish was
known to occur. Specifically, the virile crayfish occupies
approximately 12.5 river miles (mi) (20.1 river kilometers (km)) at a
few sites approximately 7 river mi (11 river km) downstream of current
slenderclaw crayfish sites in the Short Creek population (233.6 river
mi (375.9 river km)), and, therefore, the virile crayfish is an
imminent threat to slenderclaw crayfish in the Short Creek population.
Although there are currently no records of the virile crayfish in the
Town Creek population (281.7 river mi (453.4 river km)), the virile
crayfish is documented in Guntersville Lake, which leads directly into
the Town Creek population. Based on the documented past expansion of
the virile crayfish (despite some uncertainty and variation in the rate
at which it will expand), and documented impacts and declines to other
native crayfish species, current invasion and expansion into the
slenderclaw crayfish's range in the Town Creek population will occur.
Coupled with the current low abundance (n=4) of slenderclaw crayfish in
the Town Creek population, the invasion of virile crayfish makes the
slenderclaw crayfish at high risk of extirpation in this watershed.
Overall, given the current low resiliency in both populations and
the species' limited redundancy, it will be difficult to reestablish an
entire population, should it be affected by a catastrophic event,
without human intervention, as the connectivity between the two
populations is low.
Therefore, the slenderclaw crayfish is currently at risk of
extirpation in both populations. Thus, we have determined that the
slenderclaw crayfish is currently in danger of extinction throughout
all of its range.
Status Throughout a Significant Portion of Its Range
Under the Act and our implementing regulations, a species may
warrant listing if it is in danger of extinction or likely to become so
in the foreseeable future throughout all or a significant portion of
its range. We have determined that the slenderclaw crayfish is in
danger of extinction throughout all of its range, warranting listing as
endangered throughout its range. Accordingly, we did not undertake an
analysis of any significant portion of its range. Our determination is
consistent with the decision in Center for Biological Diversity v.
Everson, 2020 WL 437289 (D.D.C. Jan. 28, 2020).
Determination of Status
Our review of the best available scientific and commercial
information indicates that the slenderclaw crayfish meets the
definition of an endangered species. Therefore, in accordance with
sections 3(20) and 4(a)(1) of the Act, we add the slenderclaw crayfish
as an endangered species to the List of Endangered and Threatened
Wildlife at 50 CFR 17.11(h).
Available Conservation Measures
The primary purpose of the Act is the conservation of endangered
and threatened species and the ecosystems upon which they depend. The
ultimate goal of such conservation efforts is the recovery of these
listed species, so that they no longer need the protective measures of
the Act. Conservation measures provided to species listed as endangered
or threatened species under the Act include recognition, recovery
actions, requirements for Federal protection, and prohibitions against
certain practices. Recognition through listing results in public
awareness and conservation by Federal, State, Tribal, and local
agencies, private organizations, and individuals. The Act encourages
cooperation with the States and calls for recovery actions to be
carried out for all listed species. The protection required by Federal
agencies and the prohibitions against certain activities are discussed,
in part, below.
Subsection 4(f) of the Act requires the Service to develop and
implement recovery plans for the conservation of endangered and
threatened species. The recovery planning process involves the
identification of actions that are necessary to halt or reverse the
species' decline by addressing the threats to its survival and
recovery. The goal of this process is to restore listed species to a
point where they are secure, self-sustaining, and functioning
components of their ecosystems.
Recovery planning consists of preparing draft and final recovery
plans, beginning with the development of a recovery outline and making
it available to the public within 30 days of a final listing
determination. The recovery outline guides the immediate implementation
of urgent recovery actions and describes the process to be used to
develop a recovery plan. Revisions of the plan may be done to address
continuing or new threats to the species, as new substantive
information becomes available. The recovery plan also identifies
recovery criteria for review of when a species may be ready for
reclassification from endangered to threatened (``downlisting'') or
removal from protected status (``delisting''), and methods for
monitoring recovery progress. Recovery plans also establish a framework
for agencies to coordinate their recovery efforts and provide estimates
of the cost of implementing recovery tasks. Recovery teams (composed of
species experts, Federal and State agencies, nongovernmental
organizations, and stakeholders) are often established to develop
recovery plans. When completed, the recovery outline, draft recovery
plan, and the final recovery plan will be available on our website
(<a href="http://www.fws.gov/endangered">http://www.fws.gov/endangered</a>) or from our Alabama Ecological Services
Field Office (see FOR FURTHER INFORMATION CONTACT).
Implementation of recovery actions generally requires the
participation of a broad range of partners, including other Federal
agencies, States, Tribes, nongovernmental organizations, businesses,
and private landowners. Examples of recovery actions include habitat
restoration (e.g., restoration of native vegetation), research, captive
propagation and reintroduction, and outreach and education. The
recovery of
[[Page 50271]]
many listed species cannot be accomplished solely on Federal lands
because their range may occur primarily or solely on non-Federal lands.
To achieve recovery of these species requires cooperative conservation
efforts on private, State, and Tribal lands.
Following publication of this final listing rule, funding for
recovery actions will be available from a variety of sources, including
Federal budgets, State programs, and cost share grants for non-Federal
landowners, the academic community, and nongovernmental organizations.
In addition, pursuant to section 6 of the Act, the State of Alabama
will be eligible for Federal funds to implement management actions that
promote the protection or recovery of the slenderclaw crayfish.
Information on our grant programs that are available to aid species
recovery can be found at: <a href="http://www.fws.gov/grants">http://www.fws.gov/grants</a>.
Please let us know if you are interested in participating in
recovery efforts for the slenderclaw crayfish. Additionally, we invite
you to submit any new information on this species whenever it becomes
available and any information you may have for recovery planning
purposes (see FOR FURTHER INFORMATION CONTACT).
Section 7(a) of the Act requires Federal agencies to evaluate their
actions with respect to any species that is listed as an endangered or
threatened species and with respect to its critical habitat.
Regulations implementing this interagency cooperation provision of the
Act are codified at 50 CFR part 402. Section 7(a)(2) of the Act
requires Federal agencies to ensure that activities they authorize,
fund, or carry out are not likely to jeopardize the continued existence
of any endangered or threatened species or destroy or adversely modify
its critical habitat. If a Federal action may affect a listed species
or its critical habitat, the responsible Federal agency must enter into
consultation with the Service.
Federal agency actions within the slenderclaw crayfish's habitat
that may require conference or consultation or both as described in the
preceding paragraph include management and any other landscape-altering
activities on Federal lands administered by the U.S. Fish and Wildlife
Service and U.S. Forest Service; technical assistance and projects
funded through the U.S. Department of Agriculture's NRCS; issuance of
permits by the Tennessee Valley Authority for right-of-way stream
crossings; issuance of section 404 Clean Water Act (33 U.S.C. 1251 et
seq.) permits by the U.S. Army Corps of Engineers; and construction and
maintenance of roads or highways by the Federal Highway Administration.
The Act and its implementing regulations set forth a series of
general prohibitions and exceptions that apply to endangered wildlife.
The prohibitions of section 9(a)(1) of the Act, codified at 50 CFR
17.21, make it illegal for any person subject to the jurisdiction of
the United States to take (which includes harass, harm, pursue, hunt,
shoot, wound, kill, trap, capture, or collect; or to attempt any of
these) endangered wildlife within the United States or on the high
seas. In addition, it is unlawful to import; export; deliver, receive,
carry, transport, or ship in interstate or foreign commerce in the
course of commercial activity; or sell or offer for sale in interstate
or foreign commerce any species listed as an endangered species. It is
also illegal to possess, sell, deliver, carry, transport, or ship any
such wildlife that has been taken illegally. Certain exceptions apply
to employees of the Service, the National Marine Fisheries Service,
other Federal land management agencies, and State conservation
agencies.
We may issue permits to carry out otherwise prohibited activities
involving endangered wildlife under certain circumstances. Regulations
governing permits are codified at 50 CFR 17.22. With regard to
endangered wildlife, a permit may be issued for the following purposes:
For scientific purposes, to enhance the propagation or survival of the
species, and for incidental take in connection with otherwise lawful
activities. There are also certain statutory exemptions from the
prohibitions, which are found in sections 9 and 10 of the Act.
It is our policy, as published in the Federal Register on July 1,
1994 (59 FR 34272), to identify, to the maximum extent practicable at
the time a species is listed, those activities that would or would not
constitute a violation of section 9 of the Act. The intent of this
policy is to increase public awareness of the effect of a final listing
on proposed and ongoing activities within the range of a listed
species. Based on the best available information, at this time, we are
unable to identify specific activities that would not be considered to
result in a violation of section 9 of the Act, because it is likely
that site-specific conservation measures may be needed for activities
that may directly or indirectly affect the slenderclaw crayfish. Based
on the best available information, the following actions may
potentially result in a violation of section 9 of the Act or this final
rule; this list is not comprehensive:
(1) Unauthorized handling, collecting, possessing, selling,
delivering, carrying, or transporting of the slenderclaw crayfish,
including interstate transportation across State lines and import or
export across international boundaries.
(2) Destruction/alteration of the species' habitat by discharge of
fill material, draining, ditching, tiling, pond construction, stream
channelization or diversion, or diversion or alteration of surface or
ground water flow into or out of the stream (i.e., due to roads,
impoundments, discharge pipes, stormwater detention basins, etc.).
(3) Introduction of nonnative species that compete with or prey
upon the slenderclaw crayfish, such as the introduction of nonnative
virile crayfish in Alabama.
(4) Modification of the channel or water flow of any stream in
which the slenderclaw crayfish is known to occur.
(5) Discharge of chemicals or fill material into any waters in
which the slenderclaw crayfish is known to occur.
Questions regarding whether specific activities would constitute a
violation of section 9 of the Act should be directed to the Alabama
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).
Critical Habitat Designation
Background
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Our regulations at 50 CFR 424.02 define the geographical area
occupied by the species as an area that may generally be delineated
around species' occurrences, as determined by the Secretary (i.e.,
range). Such areas may include those areas used throughout all or part
of the species' life cycle, even if not used on a regular basis (e.g.,
migratory corridors, seasonal habitats, and habitats used periodically,
but not solely by vagrant individuals).
Conservation, as defined under section 3 of the Act, means to use
and
[[Page 50272]]
the use of all methods and procedures that are necessary to bring an
endangered or threatened species to the point at which the measures
provided pursuant to the Act are no longer necessary. Such methods and
procedures include, but are not limited to, all activities associated
with scientific resources management such as research, census, law
enforcement, habitat acquisition and maintenance, propagation, live
trapping, and transplantation, and, in the extraordinary case where
population pressures within a given ecosystem cannot be otherwise
relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the requirement that Federal agencies ensure, in consultation
with the Service, that any action they authorize, fund, or carry out is
not likely to result in the destruction or adverse modification of
critical habitat. The designation of critical habitat does not affect
land ownership or establish a refuge, wilderness, reserve, preserve, or
other conservation area. Designation also does not allow the government
or public to access private lands, nor does designation require
implementation of restoration, recovery, or enhancement measures by
non-Federal landowners. Where a landowner requests Federal agency
funding or authorization for an action that may affect a listed species
or critical habitat, the Federal agency would be required to consult
with the Service under section 7(a)(2) of the Act. However, even if the
Service were to conclude that the proposed activity would result in
destruction or adverse modification of the critical habitat, the
Federal action agency and the landowner are not required to abandon the
proposed activity, or to restore or recover the species; instead, they
must implement ``reasonable and prudent alternatives'' to avoid
destruction or adverse modification of critical habitat.
Under the first prong of the Act's definition of critical habitat,
areas within the geographical area occupied by the species at the time
it was listed are included in a critical habitat designation if they
contain physical or biological features (1) which are essential to the
conservation of the species and (2) which may require special
management considerations or protection. For these areas, critical
habitat designations identify, to the extent known using the best
scientific and commercial data available, those physical or biological
features that are essential to the conservation of the species (such as
space, food, cover, and protected habitat). In identifying those
physical or biological features within an area, we focus on the
specific features that support the life-history needs of the species,
including but not limited to, water characteristics, soil type,
geological features, prey, vegetation, symbiotic species, or other
features. A feature may be a single habitat characteristic, or a more
complex combination of habitat characteristics. Features may include
habitat characteristics that support ephemeral or dynamic habitat
conditions. Features may also be expressed in terms relating to
principles of conservation biology, such as patch size, distribution
distances, and connectivity.
Under the second prong of the Act's definition of critical habitat,
we may designate critical habitat in areas outside the geographical
area occupied by the species at the time it is listed, upon a
determination that such areas are essential for the conservation of the
species. We will determine whether unoccupied areas are essential for
the conservation of the species by considering the life-history,
status, and conservation needs of the species. This consideration will
be further informed by any generalized conservation strategy, criteria,
or outline that may have been developed for the species to provide a
substantive foundation for identifying which features and specific
areas are essential to the conservation of the species and, as a
result, the development of the critical habitat designation. For
example, an area currently occupied by the species but that was not
occupied at the time of listing may be essential to the conservation of
the species and may be included in the critical habitat designation.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific data available. Further, our Policy on
Information Standards under the Endangered Species Act (published in
the Federal Register on July 1, 1994 (59 FR 34271)), the Information
Quality Act (section 515 of the Treasury and General Government
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)),
and our associated Information Quality Guidelines, provide criteria,
establish procedures, and provide guidance to ensure that our decisions
are based on the best scientific data available. They require our
biologists, to the extent consistent with the Act and with the use of
the best scientific data available, to use primary and original sources
of information as the basis for recommendations to designate critical
habitat.
When we are determining which areas should be designated as
critical habitat, our primary source of information is generally the
information from the SSA report and information developed during the
listing process for the species. Additional information sources may
include any generalized conservation strategy, criteria, or outline
that may have been developed for the species; the recovery plan for the
species; articles in peer-reviewed journals; conservation plans
developed by States and counties; scientific status surveys and
studies; biological assessments; other unpublished materials; or
experts' opinions or personal knowledge.
Habitat is dynamic, and species may move from one area to another
over time. We recognize that critical habitat designated at a
particular point in time may not include all of the habitat areas that
we may later determine are necessary for the recovery of the species.
For these reasons, a critical habitat designation does not signal that
habitat outside the designated area is unimportant or may not be needed
for recovery of the species. Areas that are important to the
conservation of the species, both inside and outside the critical
habitat designation, will continue to be subject to: (1) Conservation
actions implemented under section 7(a)(1) of the Act; (2) regulatory
protections afforded by the requirement in section 7(a)(2) of the Act
for Federal agencies to ensure their actions are not likely to
jeopardize the continued existence of any endangered or threatened
species; and (3) section 9 of the Act's prohibitions on taking any
individual of the species, including taking caused by actions that
affect habitat. Federally funded or permitted projects affecting listed
species outside their designated critical habitat areas may still
result in jeopardy findings in some cases. These protections and
conservation tools will continue to contribute to recovery of this
species. Similarly, critical habitat designations made on the basis of
the best available information at the time of designation will not
control the direction and substance of future recovery plans, habitat
conservation plans, or other species conservation planning efforts if
new information available at the time of these planning efforts calls
for a different outcome.
On August 27, 2019, we published a final rule in the Federal
Register (84 FR 45020) to amend our regulations concerning the
procedures and criteria we use to designate and revise critical
habitat. That rule became effective on September 26, 2019, but, as
stated in
[[Page 50273]]
that rule, the amendments it sets forth apply to ``rules for which a
proposed rule was published after September 26, 2019.'' We published
our proposed critical habitat designation for the slenderclaw crayfish
on October 9, 2018 (83 FR 50582); therefore, the amendments set forth
in the August 27, 2019, final rule (84 FR 45020) do not apply to this
final designation of critical habitat for the slenderclaw crayfish.
Physical or Biological Features
In accordance with section 3(5)(A)(i) of the Act and regulations at
50 CFR 424.12(b), in determining which areas within the geographical
area occupied by the species at the time of listing to designate as
critical habitat, we consider the physical or biological features that
are essential to the conservation of the species and which may require
special management considerations or protection. The regulations at 50
CFR 424.02 define ``physical or biological features essential to the
conservation of the species'' as the features that occur in specific
areas and that are essential to support the life-history needs of the
species, including, but not limited to, water characteristics, soil
type, geological features, sites, prey, vegetation, symbiotic species,
or other features. A feature may be a single habitat characteristic or
a more complex combination of habitat characteristics. Features may
include habitat characteristics that support ephemeral or dynamic
habitat conditions. Features may also be expressed in terms relating to
principles of conservation biology, such as patch size, distribution
distances, and connectivity. For example, physical features might
include gravel of a particular size required for spawning, alkali soil
for seed germination, protective cover for migration, or susceptibility
to flooding or fire that maintains necessary early-successional habitat
characteristics. Biological features might include prey species, forage
grasses, specific kinds or ages of trees for roosting or nesting,
symbiotic fungi, or a particular level of nonnative species consistent
with conservation needs of the listed species. The features may also be
combinations of habitat characteristics and may encompass the
relationship between characteristics or the necessary amount of a
characteristic needed to support the life history of the species. In
considering whether features are essential to the conservation of the
species, the Service may consider an appropriate quality, quantity, and
spatial and temporal arrangement of habitat characteristics in the
context of the life-history needs, condition, and status of the
species. These include, but are not limited to:
(1) Space for individual and population growth and for normal
behavior;
(2) Food, water, air, light, minerals, or other nutritional or
physiological requirements;
(3) Cover or shelter;
(4) Sites for breeding, reproduction, or rearing (or development)
of offspring; and
(5) Habitats that are protected from disturbance or are
representative of the historical, geographical, and ecological
distributions of a species.
We derive the specific physical or biological features essential
for slenderclaw crayfish from studies of this species' and similar
crayfish species' habitat, ecology, and life history. The primary
habitat elements that influence resiliency of the slenderclaw crayfish
include water quantity, water quality, substrate, interstitial space,
and habitat connectivity. More detail of the habitat and resource needs
are summarized in the Habitat section of the proposed listing
designation of critical habitat rule for the slenderclaw crayfish (83
FR 50582; October 9, 2018) and the SSA report. We use the ADEM water
quality standards for fish and wildlife criteria to determine the
minimum standards of water quality necessary for the slenderclaw
crayfish. A full description of the needs of individuals, populations,
and the species is available from the SSA report; the resource needs of
individuals are summarized below in Table 1.
Table 1--Resource Needs for Slenderclaw Crayfish To Complete Each Life
Stage
------------------------------------------------------------------------
Life stage Resources needed
------------------------------------------------------------------------
Fertilized Eggs................... <bullet> Female to carry eggs.
<bullet> Water to oxygenate eggs.
<bullet> Female to fan eggs to
prevent sediment buildup and
oxygenate water as needed.
<bullet> Female to shelter in
boulder/cobble substrate and
available interstitial space.
Juveniles......................... <bullet> Female to carry juveniles
in early stage.
<bullet> Water.
<bullet> Food (likely aquatic
macroinvertebrates).
<bullet> Boulder/cobble substrate
and available interstitial space
for shelter.
Adults............................ <bullet> Water.
<bullet> Food (likely omnivorous,
opportunistic, and generalist
feeders).
<bullet> Boulder/cobble substrate
and available interstitial space
for shelter.
------------------------------------------------------------------------
Summary of Essential Physical or Biological Features
In summary, we derive the specific physical or biological features
essential to the conservation of the slenderclaw crayfish from studies
of this species' and similar crayfish species' habitat, ecology, and
life history, as described above. Additional information can be found
in the SSA report (Service 2019, entire) available on <a href="http://www.regulations.gov">http://www.regulations.gov</a> under Docket No. FWS-R4-ES-2018-0069. We have
determined that the following physical or biological features are
essential to the conservation of the slenderclaw crayfish:
(1) Geomorphically stable, small to medium, flowing streams:
(a) That are typically 19.8 feet (ft) (6 meters (m)) wide or
smaller;
(b) With attributes ranging from:
(i) Streams with predominantly large boulders and fractured
bedrock, with widths from 16.4 to 19.7 ft (5 to 6 m), low to no
turbidity, and depths up to 2.3 ft (0.7 m), to
(ii) Streams dominated by small substrate types with a mix of
cobble, gravel, and sand, with widths of approximately 9.8 feet (3 m),
low to no turbidity, and depths up to 0.5 feet (0.15 m);
(c) With substrate consisting of boulder and cobble containing
abundant interstitial spaces for sheltering and breeding; and
(d) With intact riparian cover to maintain stream morphology and to
reduce erosion and sediment inputs.
(2) Seasonal water flows, or a hydrologic flow regime (which
includes the severity, frequency, duration, and seasonality of
discharge over time),
[[Page 50274]]
necessary to maintain benthic habitats where the species is found and
to maintain connectivity of streams with the floodplain, allowing the
exchange of nutrients and sediment for maintenance of the crayfish's
habitat and food availability.
(3) Appropriate water and sediment quality (including, but not
limited to, conductivity; hardness; turbidity; temperature; pH; and
minimal levels of ammonia, heavy metals, pesticides, animal waste
products, and nitrogen, phosphorus, and potassium fertilizers)
necessary to sustain natural physiological processes for normal
behavior, growth, and viability of all life stages.
(4) Prey base of aquatic macroinvertebrates and detritus. Prey
items may include, but are not limited to, insect larvae, snails and
their eggs, fish and their eggs, and plant and animal detritus.
Special Management Considerations or Protection
When designating critical habitat, we assess whether the specific
areas within the geographical area occupied by the species at the time
of listing contain features that are essential to the conservation of
the species and which may require special management considerations or
protection. The features essential to the conservation of the
slenderclaw crayfish may require special management considerations or
protections to reduce the following threats: (1) Impacts from invasive
species, including the nonnative virile crayfish; (2) nutrient
pollution from agricultural activities that impact water quantity and
quality; (3) significant alteration of water quality and water
quantity, including conversion of streams to impounded areas; (4)
culvert and pipe installation that creates barriers to movement; and
(5) other watershed and floodplain disturbances that release sediments
or nutrients into the water.
Management activities that could ameliorate these threats include,
but are not limited to: Control and removal of introduced invasive
species; limiting the spreading of poultry litter to time periods of
dry, stable weather conditions; use of best management practices
designed to reduce sedimentation, erosion, and bank side destruction;
protection of riparian corridors and retention of sufficient canopy
cover along banks; moderation of surface and ground water withdrawals
to maintain natural flow regimes; and reduction of other watershed and
floodplain disturbances that release sediments, pollutants, or
nutrients into the water.
Criteria Used To Identify Critical Habitat
As required by section 4(b)(2) of the Act, we use the best
scientific data available to designate critical habitat. In accordance
with the Act and our implementing regulations at 50 CFR 424.12(b), we
review available information pertaining to the habitat requirements of
the species and identify specific areas within the geographical area
occupied by the species at the time of listing and any specific areas
outside the geographical area occupied by the species to be considered
for designation as critical habitat.
The current distribution of the slenderclaw crayfish is much
reduced from its historical distribution in one (Short Creek watershed)
of the two populations. The currently occupied sites in the Short Creek
watershed occur in a single tributary (Shoal Creek), and one
catastrophic event could impact this entire population. In addition,
the nonnative virile crayfish occupies sites within the Short Creek
watershed, including the type locality for the slenderclaw crayfish in
Short Creek in which the slenderclaw crayfish no longer occurs. We
anticipate that recovery will require continued protection of existing
populations and habitat, as well as establishing sites in additional
streams that more closely approximate its historical distribution in
order to ensure there are adequate numbers of crayfish in stable
populations and that these populations have multiple sites occurring in
at least two streams within each watershed. This goal will help ensure
that catastrophic events, such as a chemical spill, cannot
simultaneously affect all known populations.
Sources of data for this critical habitat designation include
numerous survey reports on streams throughout the species' range and
databases maintained by crayfish experts and universities (Bouchard and
Hobbs 1976, entire; Bearden 2017, unpublished data; Schuster 2017,
unpublished data; Taylor 2017, unpublished data; Service 2018, entire).
We have also reviewed available information that pertains to the
habitat requirements of this species. Sources of information on habitat
requirements include surveys conducted at occupied sites and published
in agency reports, and data collected during monitoring efforts.
Areas Occupied at the Time of Listing
For locations within the geographic area occupied by the species at
the time of listing, we identified stream channels that currently
support populations of the slenderclaw crayfish. We defined ``current''
as stream channels with observations of the species from 2009 to the
present. Due to the recent breadth and intensity of survey efforts for
the slenderclaw crayfish throughout the historical range of the
species, it is reasonable to assume that streams with no positive
surveys since 2009 should not be considered occupied for the purpose of
our analysis. Within these areas, we delineated critical habitat unit
boundaries using the following process:
We evaluated habitat suitability of stream channels within the
geographical area occupied at the time of listing, and retained for
further consideration those streams that contain one or more of the
physical or biological features to support life-history functions
essential to conservation of the species. We refined the starting and
ending points of units by evaluating the presence or absence of
appropriate physical or biological features. We selected the headwaters
as upstream cutoff points for each stream and downstream cutoff points
that omit areas that are not suitable habitat. For example, the
Guntersville Lake Tennessee Valley Authority project boundary was
selected as an endpoint for one unit, as there was a change to
unsuitable parameters (e.g., impounded waters).
Based on this analysis, the following streams meet criteria for
areas occupied by the species at the time of listing: Bengis Creek,
Scarham Creek, Shoal Creek, Short Creek, Town Creek, and Whippoorwill
Creek (see Unit Descriptions, below). This list does not include all
stream segments known to have been occupied by the species
historically; rather, it includes only the occupied stream segments
within the historical range that have also retained one or more of the
physical or biological features that will allow for the maintenance and
expansion of existing populations.
Areas Outside the Geographical Area Occupied at the Time of Listing
To consider for designation areas not occupied by the species at
the time of listing, we must demonstrate that these areas are essential
for the conservation of the species. To determine if these areas are
essential for the conservation of the slenderclaw crayfish, we
considered the life history, status, habitat elements, and conservation
needs of the species such as:
(1) The importance of the stream to the overall status of the
species, the importance of the stream to the prevention of extinction,
and the
[[Page 50275]]
stream's contribution to future recovery of the slenderclaw crayfish;
(2) whether the area is and could be maintained or restored to
contain the necessary habitat (water quantity, substrate, interstitial
space, and connectivity) to support the slenderclaw crayfish;
(3) whether the site provides connectivity between occupied sites
for genetic exchange;
(4) whether a population of the species could be reestablished in
the location; and
(5) whether the virile crayfish is currently present in the stream.
For the one subunit containing areas outside the geographical area
occupied by the species at the time of listing, we delineated critical
habitat unit boundaries by evaluating stream segments not known to have
been occupied at listing (i.e., outside of the geographical area
occupied by the species) but that are within the historical range of
the species to determine if they are essential for the survival and
recovery of the species. Essential areas are those that:
(a) Expand the geographical distribution within areas not occupied
at the time of listing across the historical range of the species;
(b) Were determined to be of suitable habitat and contain the
primary habitat elements (water quantity, substrate, interstitial
space, and connectivity) that support the viability of the slenderclaw
crayfish; and
(c) Are connected to other occupied areas, which will enhance
genetic exchange between populations.
Based on this analysis, Scarham-Laurel Creek was identified as
meeting the criteria for areas outside the geographical area occupied
at the time of listing that are essential for the conservation of the
species (see Subunit 2b unit description below).
General Information on the Maps of the Critical Habitat Designation
When determining critical habitat boundaries, we made every effort
to avoid including developed areas such as lands covered by buildings,
pavement, and other structures because such lands lack physical or
biological features necessary for slenderclaw crayfish. The scale of
the maps we prepared under the parameters for publication within the
Code of Federal Regulations may not reflect the exclusion of such
developed lands. Any such lands inadvertently left inside critical
habitat boundaries shown on the maps of this final rule have been
excluded by text in the rule and are not included for designation as
critical habitat. Therefore, a Federal action involving these lands
would not trigger section 7 consultation under the Act with respect to
critical habitat and the requirement of no adverse modification unless
the specific action would affect the physical or biological features in
the adjacent critical habitat.
We are designating critical habitat in areas within the
geographical area occupied by the species at the time of listing. We
also are designating areas outside the geographical area occupied by
the species at the time of listing that were historically occupied but
are presently unoccupied, because we have determined that such areas
are essential for the conservation of the species (see description of
Subunit 2b below for explanation).
The two occupied units were designated based on one or more of the
elements of physical or biological features being present to support
slenderclaw crayfish life processes. Some stream segments within the
units contained all of the identified elements of physical or
biological features and supported multiple life processes. Some stream
segments contained only some elements of the physical or biological
features necessary to support the slenderclaw crayfish's particular use
of that habitat.
The critical habitat designation is defined by the map or maps, as
modified by any accompanying regulatory text, presented at the end of
this document in the rule portion. We include more detailed information
on the boundaries of the critical habitat designation in the discussion
of individual units below. We will make the coordinates or plot points
or both on which each map is based available to the public on <a href="http://www.regulations.gov">http://www.regulations.gov</a> under Docket No. FWS-R4-ES-2018-0069, and at the
field office responsible for the designation (see FOR FURTHER
INFORMATION CONTACT, above).
Final Critical Habitat Designation
We are designating approximately 78 river mi (126 river km) in two
units as critical habitat for the slenderclaw crayfish. The critical
habitat areas, described below, constitute our current best assessment
of areas that meet the definition of critical habitat for the
slenderclaw crayfish. The two units are: (1) Town Creek Unit, and (2)
Short Creek Unit. Unit 2 is subdivided into two subunits: (2a) Shoal
Creek and Short Creek subunit, and (2b) Scarham-Laurel Creek subunit.
Table 2 shows the name, occupancy of the unit, land ownership of the
riparian areas surrounding the units, and approximate river miles of
the designated critical habitat units for the slenderclaw crayfish.
Table 2--Designated Critical Habitat Units for the Slenderclaw Crayfish
----------------------------------------------------------------------------------------------------------------
Length of unit
Stream(s) Occupied at the time of Ownership in river miles
listing (kilometers)
----------------------------------------------------------------------------------------------------------------
Unit 1--Town Creek
----------------------------------------------------------------------------------------------------------------
Bengis and Town Creeks.................. Yes....................... Private................... 42 (67)
----------------------------------------------------------------------------------------------------------------
Unit 2--Short Creek
----------------------------------------------------------------------------------------------------------------
Subunit 2a--Shoal Creek and Short Creek:
Scarham, Shoal, Short, and Yes....................... Private................... 10 (17)
Whippoorwill Creeks.
Subunit 2b--Scarham-Laurel Creek:
Scarham-Laurel Creek................ No........................ Private................... 26 (42)
Total........................... .......................... .......................... 78 (126)
----------------------------------------------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.
[[Page 50276]]
We present brief descriptions of all units, and reasons why they
meet the definition of critical habitat for the slenderclaw crayfish,
below.
Unit 1: Town Creek
Unit 1 consists of 41.8 river mi (67.2 river km) of Bengis and Town
creeks in DeKalb County, Alabama. Unit 1 includes stream habitat up to
bank full height, consisting of the headwaters of Bengis Creek to its
confluence with Town Creek and upstream to the headwaters of Town
Creek. Stream channels in and lands adjacent to Unit 1 are privately
owned except for bridge crossings and road easements, which are owned
by the State and County. The slenderclaw crayfish occupies all stream
reaches in this unit, and the unit currently supports all breeding,
feeding, and sheltering needs essential to the conservation of the
slenderclaw crayfish.
Special management considerations or protection may be required for
control and removal of introduced invasive species, including the
nonnative virile crayfish, which occupies the boulder and cobble
habitats and interstitial spaces within these habitats that the
slenderclaw crayfish needs. At present, the virile crayfish is not
present in this unit, although it has been documented just outside the
watershed boundary. However, based on future projections in the SSA
report, the virile crayfish is expected to be present in the Town Creek
watershed within the next 2 years.
In addition, special management considerations or protection may be
required to address water withdrawals and drought as well as excess
nutrients, sediment, and pollutants that enter the streams and serve as
indicators of other forms of pollution, such as bacteria and toxins. A
primary source of these types of pollution is agricultural runoff.
However, during recent survey efforts for the slenderclaw crayfish,
water quality analysis found lead measurements in Bengis Creek that
exceeded the acute and chronic aquatic life criteria set by EPA and
ADEM, and elevated ammonia concentrations in Town Creek. Special
management or protection may include moderating surface and ground
water withdrawals, using best management practices to reduce
sedimentation, and reducing watershed and floodplain disturbances that
release pollutants and nutrients into the water.
Unit 2: Short Creek
Subunit 2a--Shoal Creek and Short Creek: Subunit 2a consists of
10.3 river mi (16.6 river km) of Scarham, Shoal, Short, and
Whippoorwill Creeks in DeKalb and Marshall Counties, Alabama. Subunit
2a includes stream habitat up to bank full height, consisting of the
headwaters of Shoal Creek to its confluence with Whippoorwill Creek,
Whippoorwill Creek to its confluence with Scarham Creek, Scarham Creek
to its confluence with Short Creek, and Short Creek downstream to the
Guntersville Lake Tennessee Valley Authority project boundary. Stream
channels in and lands adjacent to subunit 2a are privately owned except
for bridge crossings and road easements, which are owned by the State
and Counties. The slenderclaw crayfish occupies all stream reaches in
this unit, and the unit currently supports all breeding, feeding, and
sheltering needs essential to the conservation of the slenderclaw
crayfish.
Special management considerations or protection may be required for
control and removal of introduced invasive species, including the
virile crayfish (see Unit 1 discussion, above). At present, the virile
crayfish is present at sites in Short Creek and Drum Creek within the
Short Creek watershed and just outside of the unit boundary in
Guntersville Lake. Based on future projections in the SSA report, the
virile crayfish is expected to be present in more tributaries within
the Short Creek watershed within the next 2 to 5 years.
In addition, special management considerations or protection may be
required to address water withdrawals and drought as well as excess
nutrients, sediment, and pollutants that enter the streams and serve as
indicators of other forms of pollution such as bacteria and toxins. A
primary source of these types of pollution is agricultural runoff.
During recent survey efforts for the slenderclaw crayfish, water
quality analysis indicated that impaired water quality due to
nutrients, bacteria, and levels of atrazine may be of concern in the
Short Creek watershed. Special management or protection may include
moderating surface and ground water withdrawals, using best management
practices to reduce sedimentation, and reducing watershed and
floodplain disturbances that release pollutants and nutrients into the
water.
Subunit 2b--Scarham-Laurel Creek: Subunit 2b consists of 25.9 river
mi (41.7 river km) of Scarham-Laurel Creek in DeKalb and Marshall
Counties, Alabama. Subunit 2b includes stream habitat up to bank full
height, consisting of the headwaters of Scarham-Laurel Creek to its
confluence with Short Creek. Stream channels in and lands adjacent to
Subunit 2b are privately owned except for bridge crossings and road
easements, which are owned by the State and Counties. The subunit is
connected to Subunit 2a.
This subunit is unoccupied by the species but is considered to be
essential for the conservation of the species. Scarham-Laurel Creek is
within the historical range of the slenderclaw crayfish but is not
within the geographical range occupied by the species at the time of
listing. The slenderclaw crayfish has not been documented at sites in
Scarham-Laurel Creek in over 40 years, and we presume those
historically occupied sites to be extirpated. Scarham-Laurel Creek is a
small to medium, flowing stream with substrate consisting of boulder
and cobble containing interstitial spaces for sheltering and breeding.
Although it is currently unoccupied, this subunit contains some or all
of the physical or biological features necessary for the conservation
of the slenderclaw crayfish. This subunit possesses characteristics as
described by physical or biological feature 1 (geomorphically stable,
small to medium, flowing streams with substrate consisting of boulder
and cobble and intact riparian cover); physical or biological feature 2
(seasonal water flows, or a hydrologic flow regime, necessary to
maintain benthic habitats where the species is found and to maintain
connectivity of streams); and physical or biological feature 4 (prey
base of aquatic macroinvertebrates and detritus). Physical or
biological feature 3 (appropriate water and sediment quality) is
degraded in this subunit, and with appropriate management and
restoration actions, this feature can be restored.
In terms of water quality, Scarham-Laurel Creek is in restorable
condition, and is currently devoid of the virile crayfish. Water
quality concerns have been documented within Scarham-Laurel Creek,
causing it to be listed on Alabama's 303(d) list of impaired waters for
impacts from pesticides, siltation, ammonia, low dissolved oxygen/
organic enrichment, and pathogens from agricultural sources in 1998
(ADEM 1996, p. 1). In 2004, Scarham Creek was removed from the 303(d)
list after TMDLs were established (ADEM 2002, p. 5); however, recent
water quality analysis indicated that water quality was impaired within
the Short Creek watershed in which Scarham-Laurel Creek is located
(Bearden et al. 2017, p. 32). When the water quality of Scarham-Laurel
Creek is restored, the stream could be an area for population expansion
within the Short Creek watershed, in that this subunit is
[[Page 50277]]
connected to the occupied Shoal Creek and Short Creek subunit, and
thereby provide redundancy needed to support the species' recovery.
Therefore, we conclude that this stream is essential for the
conservation of the slenderclaw crayfish, because it will provide
habitat for population expansion in known historical habitat that is
necessary to increase viability of the species by increasing its
resiliency, redundancy, and representation.
Exemptions
Application of Section 4(a)(3) of the Act
Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i))
provides that the Secretary shall not designate as critical habitat any
lands or other geographical areas owned or controlled by the Department
of Defense, or designated for its use, that are subject to an
integrated natural resources management plan (INRMP) prepared under
section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary
determines in writing that such plan provides a benefit to the species
for which critical habitat is proposed for designation. There are no
Department of Defense lands with a completed INRMP within the final
critical habitat designation.
Exclusions
Consideration of Impacts Under Section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that the Secretary shall
designate and make revisions to critical habitat on the basis of the
best available scientific data after taking into consideration the
economic impact, national security impact, and any other relevant
impact of specifying any particular area as critical habitat. The
Secretary may exclude an area from critical habitat if she determines
that the benefits of such exclusion outweigh the benefits of specifying
such area as part of the critical habitat, unless she determines, based
on the best scientific data available, that the failure to designate
such area as critical habitat will result in the extinction of the
species. In making that determination, the statute on its face, as well
as the legislative history, are clear that the Secretary has broad
discretion regarding which factor(s) to use and how much weight to give
to any factor.
Consideration of Economic Impacts
Section 4(b)(2) of the Act and its implementing regulations require
that we consider the economic impact that may result from a designation
of critical habitat. In order to consider economic impacts, we prepared
an incremental effects memorandum (IEM) and screening analysis which
together with our narrative and interpretation of effects we consider
our draft economic analysis (DEA) of the proposed critical habitat
designation and related factors (IEc 2018, entire). The analysis, dated
June 29, 2018, addressed probable economic impacts of critical habitat
designation for the slenderclaw crayfish. The DEA was made available
for public review from October 9, 2018, through December 10, 2018
(Industrial Economics, Inc. (IEc) 2018, entire), but we did not receive
any comments on the draft DEA. Additional information relevant to the
probable incremental economic impacts of critical habitat designation
for the slenderclaw crayfish is summarized below and available in the
screening analysis for the slenderclaw crayfish (IEc 2018, entire),
available at <a href="http://www.regulations.gov">http://www.regulations.gov</a>.
The final critical habitat designation for the slenderclaw crayfish
totals approximately 78 river mi (126 river km), which includes both
occupied and unoccupied streams. This final critical habitat
designation is likely to result, annually, in a maximum of three
informal section 7 consultations and five technical assistance efforts
at a total incremental cost of less than $10,000 per year. Within the
occupied streams, any actions that may affect the species would likely
also affect critical habitat, and it is unlikely that any additional
conservation efforts would be required to address the adverse
modification standard over and above those recommended as necessary to
avoid jeopardizing the continued existence of the species. Within all
unoccupied critical habitat, the Service will consult with Federal
agencies on any projects that occur within the hydrologic unit code
(HUC) 12-digit watershed boundaries, due to overlap with the ranges of
other listed species such as Indiana bat (Myotis sodalis), gray bat
(Myotis grisescens), northern long-eared bat (Myotis septentrionalis),
harperella (Ptilimnium nodosum), and green pitcher-plant (Sarracenia
oreophila) in these HUCs. In addition, all of the HUC 12-digit
watershed boundaries containing unoccupied habitat are within the HUC
12-digit range of watersheds occupied by slenderclaw crayfish. Thus, no
incremental project modifications resulting solely from the presence of
unoccupied critical habitat are anticipated. Therefore, the only
additional costs that are expected in all of the critical habitat
designation are administrative costs, due to the fact that this
additional analysis will require time and resources by both the Federal
action agency and the Service.
Exclusions Based on Economic Impacts
As discussed above, the Service considered the economic impacts of
the critical habitat designation and the Secretary is not exercising
her discretion to exclude any areas from this designation of critical
habitat for the slenderclaw crayfish based on economic impacts. A copy
of the IEM and screening analysis with supporting documents may be
obtained by contacting the Alabama Ecological Services Field Office
(see ADDRESSES) or by downloading from the internet at <a href="http://www.regulations.gov">http://www.regulations.gov</a>.
Exclusions Based on Impacts on National Security and Homeland Security
Section 4(a)(3)(B)(i) of the Act may not cover all Department of
Defense (DoD) lands or areas that pose potential national-security
concerns (e.g., a DoD installation that is in the process of revising
its INRMP for a newly listed species or a species previously not
covered). If a particular area is not covered under section
4(a)(3)(B)(i), national-security or homeland-security concerns are not
a factor in the process of determining what areas meet the definition
of ``critical habitat.'' Nevertheless, when designating critical
habitat under section 4(b)(2) of the Act, the Service must consider
impacts on national security, including homeland security, on lands or
areas not covered by section 4(a)(3)(B)(i) of the Act. Accordingly, we
will always consider for exclusion from the designation areas for which
DoD, Department of Homeland Security (DHS), or another Federal agency
has requested exclusion based on an assertion of national-security or
homeland-security concerns. However, no lands within the designation of
critical habitat for slenderclaw crayfish are owned or managed by DoD
or DHS. Consequently, the Secretary is not exercising her discretion to
exclude any areas from the final designation based on impacts on
national security.
Exclusions Based on Other Relevant Impacts
Under section 4(b)(2) of the Act, we consider any other relevant
impacts, in addition to economic impacts and impacts on national
security. We consider a number of factors including whether there are
permitted conservation plans covering the species in the area, such as
habitat conservation plans, safe harbor agreements, or candidate
conservation agreements with assurances, or whether there are non-
permitted conservation agreements and
[[Page 50278]]
partnerships that would be encouraged by designation of, or exclusion
from, critical habitat. In addition, we look at the existence of Tribal
conservation plans and partnerships and consider the government-to-
government relationship of the United States with Tribal entities. We
also consider any social impacts that might occur because of the
designation.
In preparing this final rule, we have determined that there are
currently no permitted conservation plans or other non-permitted
conservation agreements or partnerships for the slenderclaw crayfish,
and the final critical habitat designation does not include any Tribal
lands or trust resources. We anticipate no impact on Tribal lands,
partnerships, permitted or non-permitted plans, or agreements from this
critical habitat designation. Accordingly, the Secretary is not
exercising her discretion to exclude any areas from the final
designation based on other relevant impacts.
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7(a) of the Act requires Federal agencies to evaluate their
actions with respect to critical habitat of any species that is listed
as an endangered or threatened species. Regulations implementing this
interagency cooperation provision of the Act are codified at 50 CFR
part 402. Section 7(a)(2) of the Act requires Federal agencies,
including the Service, to ensure that any action they fund, authorize,
or carry out is not likely to result in the destruction or adverse
modification of designated critical habitat of any listed species. In
addition, section 7(a)(4) of the Act requires Federal agencies to
confer with the Service on any agency action that is likely to result
in the destruction or adverse modification of proposed critical
habitat.
We published a final regulation with a revised definition of
destruction or adverse modification on August 27, 2019 (84 FR 45020).
Destruction or adverse modification means a direct or indirect
alteration that appreciably diminishes the value of critical habitat as
a whole for the conservation of a listed species. If a Federal action
may affect a listed species' critical habitat, the responsible Federal
agency (action agency) must enter into consultation with us. Examples
of actions that are subject to the section 7 consultation process are
actions on State, Tribal, local, or private lands that require a
Federal permit (such as a permit from the U.S. Army Corps of Engineers
under section 404 of the Clean Water Act (33 U.S.C. 1251 et seq.) or a
permit from the Service under section 10 of the Act) or that involve
some other Federal action (such as funding from the Federal Highway
Administration, Federal Aviation Administration, or the Federal
Emergency Management Agency). Federal actions not affecting listed
species or critical habitat--and actions on State, Tribal, local, or
private lands that are not federally funded, authorized, or carried out
by a Federal agency--do not require section 7 consultation.
Compliance with the requirements of section 7(a)(2) of the Act is
documented through our issuance of:
(1) A concurrence letter for Federal actions that may affect, but
are not likely to adversely affect, critical habitat; or
(2) A biological opinion for Federal actions that may affect, and
are likely to adversely affect, critical habitat.
When we issue a biological opinion concluding that a project is
likely to destroy or adversely modify critical habitat, we provide
reasonable and prudent alternatives to the project, if any are
identifiable, that would avoid the likelihood of destruction or adverse
modification of critical habitat. We define ``reasonable and prudent
alternatives'' (50 CFR 402.02) as alternative actions identified during
consultation that:
(1) Can be implemented in a manner consistent with the intended
purpose of the action,
(2) Can be implemented consistent with the scope of the Federal
agency's legal authority and jurisdiction,
(3) Are economically and technologically feasible, and
(4) Would, in the Service Director's opinion, avoid the likelihood
of destroying or adversely modifying critical habitat.
Reasonable and prudent alternatives can vary from slight project
modifications to extensive redesign or relocation of the project. Costs
associated with implementing a reasonable and prudent alternative are
similarly variable.
Regulations at 50 CFR 402.16 set forth requirements for Federal
agencies to reinitiate formal consultation on previously reviewed
actions. These requirements apply when the Federal agency has retained
discretionary involvement or control over the action (or the agency's
discretionary involvement or control is authorized by law) and,
subsequent to the previous consultation, we have listed a new species
or designated critical habitat that may be affected by the Federal
action, or the action has been modified in a manner that affects the
species or critical habitat in a way not considered in the previous
consultation. In such situations, Federal agencies sometimes may need
to request reinitiation of consultation with us, but the regulations
also specify some exceptions to the requirement to reinitiate
consultation on specific land management plans after subsequently
listing a new species or designating new critical habitat. See the
regulations for a description of those exceptions.
Application of the ``Adverse Modification'' Standard
The key factor related to the destruction or adverse modification
determination is whether implementation of the proposed Federal action
directly or indirectly alters the designated critical habitat in a way
that appreciably diminishes the value of the critical habitat as a
whole for the conservation of the listed species. As discussed above,
the role of critical habitat is to support physical or biological
features essential to the conservation of a listed species and provide
for the conservation of the species.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe, in any proposed or final regulation that designates critical
habitat, activities involving a Federal action that may violate section
7(a)(2) of the Act by destroying or adversely modifying such habitat,
or that may be affected by such designation.
Activities that the Services may find are likely to destroy or
adversely modify critical habitat, during a consultation under section
7(a)(2) of the Act, include, but are not limited to:
(1) Actions that would alter the minimum flow or the existing flow
regime. Such activities could include, but are not limited to,
impoundment, channelization, water diversion, and water withdrawal.
These activities could eliminate or reduce the habitat necessary for
the growth and reproduction of the slenderclaw crayfish by decreasing
or altering seasonal flows to levels that would adversely affect the
species' ability to complete its life cycle.
(2) Actions that would significantly alter water chemistry or
quality. Such activities could include, but are not limited to, release
of chemicals (including pharmaceuticals, metals, and salts) or
biological pollutants into the surface water or connected groundwater
at a point source or by dispersed release (non-point source). These
activities could alter water conditions to levels that are beyond the
tolerances of the slenderclaw crayfish and result in direct
[[Page 50279]]
or cumulative adverse effects to these individuals and their life
cycles.
(3) Actions that would significantly increase sediment deposition
within the stream channel. Such activities could include, but are not
limited to, excessive sedimentation from livestock grazing, road
construction, channel alteration, poor forestry management, off-road
vehicle use, and other watershed and floodplain disturbances. These
activities could eliminate or reduce the habitat necessary for the
growth and reproduction of the slenderclaw crayfish by increasing the
sediment deposition to levels that would adversely affect the species'
ability to complete its life cycle.
(4) Actions that would significantly increase eutrophic conditions.
Such activities could include, but are not limited to, release of
nutrients into the surface water or connected groundwater at a point
source or by dispersed release (non-point source). These activities can
result in excessive nutrients and algae filling streams and reducing
habitat for the slenderclaw crayfish, degrading water quality from
excessive nutrients and during algae decay, and decreasing oxygen
levels to levels below the tolerances of the slenderclaw crayfish.
(5) Actions that would significantly alter channel morphology or
geometry or decrease connectivity. Such activities could include, but
are not limited to, channelization, impoundment, road and bridge
construction, mining, dredging, and destruction of riparian vegetation.
These activities may lead to changes in water flows and levels that
would degrade or eliminate the slenderclaw crayfish and its habitats.
These actions can also lead to increased sedimentation and degradation
in water quality to levels that are beyond the tolerances of the
slenderclaw crayfish.
(6) Actions that result in the introduction, spread, or
augmentation of nonnative aquatic species in occupied stream segments,
or in stream segments that are hydrologically connected to occupied
stream segments, or introduction of other species that compete with or
prey on the slenderclaw crayfish. Possible actions could include, but
are not limited to, stocking of nonnative crayfishes and fishes,
stocking of sport fish, or other related actions. These activities can
introduce parasites or disease; result in direct predation or direct
competition; or affect the growth, reproduction, and survival of the
slenderclaw crayfish.
Required Determinations
Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs in the Office of Management and Budget (OMB) will
review all significant rules. The Office of Information and Regulatory
Affairs has determined that this rule is not significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while
calling for improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The executive order directs agencies to consider regulatory approaches
that reduce burdens and maintain flexibility and freedom of choice for
the public where these approaches are relevant, feasible, and
consistent with regulatory objectives. E.O. 13563 emphasizes further
that regulations must be based on the best available science and that
the rulemaking process must allow for public participation and an open
exchange of ideas. We have developed this rule in a manner consistent
with these requirements.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.),
as amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to
publish a notice of rulemaking for any proposed or final rule, it must
prepare and make available for public comment a regulatory flexibility
analysis that describes the effects of the rule on small entities
(i.e., small businesses, small organizations, and small government
jurisdictions). However, no regulatory flexibility analysis is required
if the head of the agency certifies the rule will not have a
significant economic impact on a substantial number of small entities.
The SBREFA amended the RFA to require Federal agencies to provide a
certification statement of the factual basis for certifying that the
rule will not have a significant economic impact on a substantial
number of small entities.
According to the Small Business Administration, small entities
include small organizations such as independent nonprofit
organizations; small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents; and small businesses (13 CFR 121.201). Small businesses
include manufacturing and mining concerns with fewer than 500
employees, wholesale trade entities with fewer than 100 employees,
retail and service businesses with less than $5 million in annual
sales, general and heavy construction businesses with less than $27.5
million in annual business, special trade contractors doing less than
$11.5 million in annual business, and agricultural businesses with
annual sales less than $750,000. To determine if potential economic
impacts to these small entities are significant, we considered the
types of activities that might trigger regulatory impacts under this
designation as well as types of project modifications that may result.
In general, the term ``significant economic impact'' is meant to apply
to a typical small business firm's business operations.
The Service's current understanding of the requirements under the
RFA, as amended, and following recent court decisions, is that Federal
agencies are only required to evaluate the potential incremental
impacts of rulemaking on those entities directly regulated by the
rulemaking itself, and, therefore, are not required to evaluate the
potential impacts to indirectly regulated entities. The regulatory
mechanism through which critical habitat protections are realized is
section 7 of the Act, which requires Federal agencies, in consultation
with the Service, to ensure that any action authorized, funded, or
carried out by the agency is not likely to destroy or adversely modify
critical habitat. Therefore, under section 7, only Federal action
agencies are directly subject to the specific regulatory requirement
(avoiding destruction and adverse modification) imposed by critical
habitat designation. Consequently, it is our position that only Federal
action agencies would be directly regulated by this designation. There
is no requirement under RFA to evaluate the potential impacts to
entities not directly regulated. Moreover, Federal agencies are not
small entities. Therefore, because no small entities would be directly
regulated by this rulemaking, the Service certifies that the final
critical habitat designation will not have a significant economic
impact on a substantial number of small entities.
During the development of this final rule we reviewed and evaluated
all information submitted during the comment period that may pertain to
our consideration of the probable incremental economic impacts of this
critical habitat designation. Based on this information, we affirm our
certification that this final critical habitat designation will not
have a
[[Page 50280]]
significant economic impact on a substantial number of small entities,
and a regulatory flexibility analysis is not required.
Energy Supply, Distribution, or Use--Executive Order 13211
Executive Order 13211 (Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use) requires
agencies to prepare Statements of Energy Effects when undertaking
certain actions. OMB has provided guidance for implementing this
Executive Order that outlines nine outcomes that may constitute ``a
significant adverse effect'' when compared to not taking the regulatory
action under consideration. The economic analysis finds that none of
these criteria are relevant to this analysis. Thus, based on
information in the economic analysis, energy-related impacts associated
with slenderclaw crayfish conservation activities within critical
habitat are not expected. As such, the designation of critical habitat
is not expected to significantly affect energy supplies, distribution,
or use. Therefore, this action is not a significant energy action, and
no Statement of Energy Effects is required.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following findings:
(1) This rule would not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute, or regulation
that would impose an enforceable duty upon State, local, or tribal
governments, or the private sector, and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or tribal governments'' with two
exceptions. It excludes ``a condition of Federal assistance.'' It also
excludes ``a duty arising from participation in a voluntary Federal
program,'' unless the regulation ``relates to a then-existing Federal
program under which $500,000,000 or more is provided annually to State,
local, and Tribal governments under entitlement authority,'' if the
provision would ``increase the stringency of conditions of assistance''
or ``place caps upon, or otherwise decrease, the Federal Government's
responsibility to provide funding,'' and the State, local, or Tribal
governments ``lack authority'' to adjust accordingly. At the time of
enactment, these entitlement programs were: Medicaid; Aid to Families
with Dependent Children work programs; Child Nutrition; Food Stamps;
Social Services Block Grants; Vocational Rehabilitation State Grants;
Foster Care, Adoption Assistance, and Independent Living; Family
Support Welfare Services; and Child Support Enforcement. ``Federal
private sector mandate'' includes a regulation that ``would impose an
enforceable duty upon the private sector, except (i) a condition of
Federal assistance or (ii) a duty arising from participation in a
voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal Government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not destroy or adversely modify critical
habitat under section 7. While non-Federal entities that receive
Federal funding, assistance, or permits, or that otherwise require
approval or authorization from a Federal agency for an action may be
indirectly impacted by the designation of critical habitat, the legally
binding duty to avoid destruction or adverse modification of critical
habitat rests squarely on the Federal agency. Furthermore, to the
extent that non-Federal entities are indirectly impacted because they
receive Federal assistance or participate in a voluntary Federal aid
program, the Unfunded Mandates Reform Act would not apply, nor would
critical habitat shift the costs of the large entitlement programs
listed above onto State governments.
(2) We conclude that this rule would not significantly or uniquely
affect small governments because the lands within and adjacent to the
streams being designated as critical habitat are owned by private
landowners. These government entities do not fit the definition of
``small governmental jurisdiction.'' Consequently, we conclude that the
critical habitat designation would not significantly or uniquely affect
small government entities. As such, a Small Government Agency Plan is
not required.
Takings--Executive Order 12630
In accordance with E.O. 12630 (Government Actions and Interference
with Constitutionally Protected Private Property Rights), we have
analyzed the potential takings implications of designating critical
habitat for slenderclaw crayfish in a takings implications assessment.
The Act does not authorize the Service to regulate private actions on
private lands or confiscate private property as a result of critical
habitat designation. Designation of critical habitat does not affect
land ownership, or establish any closures, or restrictions on use of or
access to the designated areas. Furthermore, the designation of
critical habitat does not affect landowner actions that do not require
Federal funding or permits, nor does it preclude development of habitat
conservation programs or issuance of incidental take permits to permit
actions that do require Federal funding or permits to go forward.
However, Federal agencies are prohibited from carrying out, funding, or
authorizing actions that would destroy or adversely modify critical
habitat. A takings implications assessment has been completed and
concludes that this designation of critical habitat for slenderclaw
crayfish does not pose significant takings implications for lands
within or affected by the designation.
Federalism--Executive Order 13132
In accordance with E.O. 13132 (Federalism), this rule does not have
significant federalism effects. A federalism summary impact statement
is not required. In keeping with Department of the Interior and
Department of Commerce policy, we requested information from, and
coordinated development of the proposed critical habitat designation
with, the appropriate State resource agency in Alabama. We did not
receive comments from Alabama. From a federalism perspective, the
designation of critical habitat directly affects only the
responsibilities of Federal agencies. The Act imposes no other duties
with respect to critical habitat, either for States and local
governments, or for anyone else. As a result, the rule does not have
substantial direct effects either on the State, or on the relationship
between the National Government and the State, or on the distribution
of powers and responsibilities among the various levels of government.
The designation may have some benefit to these governments because the
areas that contain the features essential to the conservation of the
species are more clearly defined, and the physical or biological
features of the habitat necessary to the conservation of the species
are specifically identified. This information does not alter where and
what federally sponsored activities may occur. However, it may assist
these local governments in long-range planning (because these local
governments no longer have to wait for case-by-case section 7
consultations to occur).
Where State and local governments require approval or authorization
from a
[[Page 50281]]
Federal agency for actions that may affect critical habitat,
consultation under section 7(a)(2) of the Act would be required. While
non-Federal entities that receive Federal funding, assistance, or
permits, or that otherwise require approval or authorization from a
Federal agency for an action, may be indirectly impacted by the
designation of critical habitat, the legally binding duty to avoid
destruction or adverse modification of critical habitat rests squarely
on the Federal agency.
Civil Justice Reform--Executive Order 12988
In accordance with Executive Order 12988 (Civil Justice Reform),
the Office of the Solicitor has determined that the rule does not
unduly burden the judicial system and that it meets the requirements of
sections 3(a) and 3(b)(2) of the order. We are designating critical
habitat in accordance with the provisions of the Act. To assist the
public in understanding the habitat needs of the species, this rule
identifies the elements of physical or biological features essential to
the conservation of the species. The designated areas of critical
habitat are presented on maps, and the rule provides several options
for the interested public to obtain more detailed location information,
if desired.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This rule does not contain any new collections of information that
require approval by the Office of Management and Budget under the
Paperwork Reduction Act of 1995. An agency may not conduct or sponsor,
and a person is not required to respond to, a collection of information
unless it displays a currently valid OMB control number.
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
We have determined that environmental assessments and environmental
impact statements, as defined under the authority of the National
Environmental Policy Act (NEPA), need not be prepared in connection
with listing a species as an endangered or threatened species under the
Act. We published a notice outlining our reasons for this determination
in the Federal Register on October 25, 1983 (48 FR 49244).
It is our position that, outside the jurisdiction of the U.S. Court
of Appeals for the Tenth Circuit, we do not need to prepare
environmental analyses pursuant to NEPA in connection with designating
critical habitat under the Act. We published a notice outlining our
reasons for this determination in the Federal Register on October 25,
1983 (48 FR 49244). This position was upheld by the U.S. Court of
Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495
(9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)).
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994
(Government-to-Government Relations with Native American Tribal
Governments; 59 FR 22951), Executive Order 13175 (Consultation and
Coordination With Indian Tribal Governments), and the Department of the
Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. In accordance with
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species Act),
we readily acknowledge our responsibilities to work directly with
Tribes in developing programs for healthy ecosystems, to acknowledge
that Tribal lands are not subject to the same controls as Federal
public lands, to remain sensitive to Indian culture, and to make
information available to Tribes. We have identified no Tribal interests
that will be affected by this final rulemaking.
References Cited
A complete list of references cited in the SSA report and this
rulemaking is available on the internet at <a href="http://www.regulations.gov">http://www.regulations.gov</a>
under Docket No. FWS-R4-ES-2018-0069 and upon request from the Alabama
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).
Authors
The primary authors of this final rule are the staff members of the
U.S. Fish and Wildlife Service Species Assessment Team and Alabama
Ecological Services Field Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Regulation Promulgation
Accordingly, we amend part 17, subchapter B of chapter I, title 50
of the Code of Federal Regulations, as set forth below:
PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless
otherwise noted.
0
2. Amend Sec. 17.11(h) by adding an entry for ``Crayfish,
slenderclaw'' to the List of Endangered and Threatened Wildlife in
alphabetical order under Crustaceans to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
----------------------------------------------------------------------------------------------------------------
Listing citations and
Common name Scientific name Where listed Status applicable rules
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Crustaceans
* * * * * * *
Crayfish, slenderclaw........... Cambarus cracens.. Wherever found.... E 86 FR [INSERT FEDERAL
REGISTER PAGE WHERE
THE DOCUMENT BEGINS],
9/8/21; 50 CFR
17.95(h)\CH\.
* * * * * * *
----------------------------------------------------------------------------------------------------------------
0
3. Amend Sec. 17.95(h) by adding an entry for ``Slenderclaw Crayfish
(Cambarus cracens)'' after the entry for ``Pecos Amphipod (Gammarus
pecos)'' to read as follows:
Sec. 17.95 Critical habitat--fish and wildlife.
* * * * *
(h) * * *
[[Page 50282]]
Slenderclaw Crayfish (Cambarus cracens)
(1) Critical habitat units are depicted for DeKalb and Marshall
Counties, Alabama, on the maps in this entry.
(2) Within these areas, the physical or biological features
essential to the conservation of the slenderclaw crayfish consist of
the following components:
(i) Geomorphically stable, small to medium, flowing streams:
(A) That are typically 19.8 feet (ft) (6 meters (m)) wide or
smaller;
(B) With attributes ranging from:
(1) Streams with predominantly large boulders and fractured
bedrock, with widths from 16.4 to 19.7 ft (5 to 6 m), low to no
turbidity, and depths up to 2.3 ft (0.7 m); to
(2) Streams dominated by small substrate types with a mix of
cobble, gravel, and sand, with widths of approximately 9.8 feet (3 m),
low to no turbidity, and depths up to 0.5 feet (0.15 m);
(C) With substrate consisting of boulder and cobble containing
abundant interstitial spaces for sheltering and breeding; and
(D) With intact riparian cover to maintain stream morphology and to
reduce erosion and sediment inputs.
(ii) Seasonal water flows, or a hydrologic flow regime (which
includes the severity, frequency, duration, and seasonality of
discharge over time), necessary to maintain benthic habitats where the
species is found and to maintain connectivity of streams with the
floodplain, allowing the exchange of nutrients and sediment for
maintenance of the crayfish's habitat and food availability.
(iii) Appropriate water and sediment quality (including, but not
limited to, conductivity; hardness; turbidity; temperature; pH; and
minimal levels of ammonia, heavy metals, pesticides, animal waste
products, and nitrogen, phosphorus, and potassium fertilizers)
necessary to sustain natural physiological processes for normal
behavior, growth, and viability of all life stages.
(iv) Prey base of aquatic macroinvertebrates and detritus. Prey
items may include, but are not limited to, insect larvae, snails and
their eggs, fish and their eggs, and plant and animal detritus.
(3) Critical habitat does not include manmade structures (such as
buildings, aqueducts, runways, roads, and other paved areas) and the
land on which they are located existing within the legal boundaries on
October 8, 2021.
(4) Data layers defining map units were created using Universal
Transverse Mercator (UTM) Zone 16N coordinates and species' occurrence
data. The hydrologic data used in the maps were extracted from U.S.
Geological Survey National Hydrography Dataset High Resolution
(1:24,000 scale) using Geographic Coordinate System North American 1983
coordinates. The maps in this entry, as modified by any accompanying
regulatory text, establish the boundaries of the critical habitat
designation. The coordinates or plot points or both on which each map
is based are available to the public at <a href="http://www.regulations.gov">http://www.regulations.gov</a>
under Docket No. FWS-R4-ES-2018-0069 and at the field office
responsible for this designation. You may obtain field office location
information by contacting one of the Service regional offices, the
addresses of which are listed at 50 CFR 2.2.
(5) Note: Index map follows:
BILLING CODE 4333-15-P
[[Page 50283]]
[GRAPHIC] [TIFF OMITTED] TR08SE21.000
(6) Unit 1: Town Creek, DeKalb County, Alabama.
(i) This unit consists of 41.8 river miles (67.2 river kilometers)
of occupied habitat in Bengis and Town Creeks. Unit 1 includes stream
habitat up to bank full height consisting of the headwaters of Bengis
Creek to its confluence with Town Creek and upstream to the headwaters
of Town Creek.
(ii) Map of Unit 1 follows:
[[Page 50284]]
[GRAPHIC] [TIFF OMITTED] TR08SE21.001
(7) Unit 2: Short Creek, DeKalb and Marshall Counties, Alabama.
(i) Subunit 2a: Shoal Creek and Short Creek, DeKalb and Marshall
Counties, Alabama.
(A) This subunit consists of 10.3 river miles (16.6 river
kilometers) of occupied habitat in Scarham, Shoal, Short, and
Whippoorwill Creeks. Subunit 2a includes stream habitat up to bank full
height consisting of the headwaters of Shoal Creek to its confluence
with Whippoorwill Creek, Whippoorwill Creek to its confluence with
Scarham Creek, Scarham Creek to its confluence with Short Creek, and
Short Creek to its downstream extent to the Guntersville Lake Tennessee
Valley Authority project boundary.
(B) Map of Subunit 2a follows:
[[Page 50285]]
[GRAPHIC] [TIFF OMITTED] TR08SE21.002
(ii) Subunit 2b: Scarham-Laurel Creek, DeKalb and Marshall
Counties, Alabama.
(A) This subunit consists of 25.9 river miles (41.7 river
kilometers) of unoccupied habitat in Scarham-Laurel Creek. Subunit 2b
includes stream habitat up to bank full height consisting of the
headwaters of Scarham-Laurel Creek to its confluence with Whippoorwill
Creek. This subunit is a small to medium, flowing stream with substrate
consisting of boulder and cobble containing interstitial spaces for
sheltering and breeding and connected to the occupied subunit 2a.
(B) Map of Subunit 2b follows:
[[Page 50286]]
[GRAPHIC] [TIFF OMITTED] TR08SE21.003
[[Page 50287]]
* * * * *
Martha Williams,
Principal Deputy Director, Exercising the Delegated Authority of the
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2021-19093 Filed 9-7-21; 8:45 am]
BILLING CODE 4333-15-C
</pre></body>
</html>Indexed from Federal Register on September 8, 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.