Rule2022-04598
Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Big Sandy Crayfish and Guyandotte River Crayfish
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
March 15, 2022
Effective
April 14, 2022
Issuing agencies
Interior DepartmentFish and Wildlife Service
Abstract
We, the U.S. Fish and Wildlife Service (Service), designate critical habitat for the Big Sandy crayfish (Cambarus callainus) and Guyandotte River crayfish (C. veteranus) under the Endangered Species Act (Act). In total, approximately 717 stream kilometers (446 stream miles) in Kentucky, Virginia, and West Virginia fall within the boundaries of the critical habitat designation. The effect of this final rule is to designate critical habitat for the Big Sandy crayfish, which is a threatened species under the Act, and Guyandotte River crayfish, which is an endangered species under the Act.
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[Federal Register Volume 87, Number 50 (Tuesday, March 15, 2022)]
[Rules and Regulations]
[Pages 14662-14719]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-04598]
[[Page 14661]]
Vol. 87
Tuesday,
No. 50
March 15, 2022
Part III
Department of the Interior
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Fish and Wildlife Service
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50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Designation of Critical
Habitat for Big Sandy Crayfish and Guyandotte River Crayfish; Final
Rule
Federal Register / Vol. 87 , No. 50 / Tuesday, March 15, 2022 / Rules
and Regulations
[[Page 14662]]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R5-ES-2019-0098; FF09E21000 FXES1111090FEDR 223]
RIN 1018-BE19
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for Big Sandy Crayfish and Guyandotte River Crayfish
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate
critical habitat for the Big Sandy crayfish (Cambarus callainus) and
Guyandotte River crayfish (C. veteranus) under the Endangered Species
Act (Act). In total, approximately 717 stream kilometers (446 stream
miles) in Kentucky, Virginia, and West Virginia fall within the
boundaries of the critical habitat designation. The effect of this
final rule is to designate critical habitat for the Big Sandy crayfish,
which is a threatened species under the Act, and Guyandotte River
crayfish, which is an endangered species under the Act.
DATES: This rule is effective April 14, 2022.
ADDRESSES: This final rule is available on the internet at <a href="https://www.regulations.gov">https://www.regulations.gov</a> in Docket No. FWS-R5-ES-2019-0098 or at <a href="https://www.fws.gov/northeast/">https://www.fws.gov/northeast/</a> and at the West Virginia Ecological Services
Field Office. Comments and materials we received, as well as some
supporting documentation we used in preparing this rule, are available
for public inspection in the docket at <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
The coordinates or plot points or both from which the maps are
generated are included in the administrative record for this critical
habitat designation and are available at <a href="https://www.regulations.gov">https://www.regulations.gov</a> at
Docket No. FWS-R5-ES-2019-0098, at <a href="https://www.fws.gov/westvirginiafieldoffice/index.html">https://www.fws.gov/westvirginiafieldoffice/index.html</a>, and at the West Virginia 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 U.S. Fish
and Wildlife Service website and field office set out above, and may
also be included in the preamble and at <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
FOR FURTHER INFORMATION CONTACT: Jennifer L. Norris, Field Supervisor,
U.S. Fish and Wildlife Service, West Virginia Ecological Services Field
Office, 6263 Appalachian Highway, Davis, WV 26260; telephone 304-866-
3858; email <a href="/cdn-cgi/l/email-protection#f1b7a6c4aea6a7b7beb1978682df969e87"><span class="__cf_email__" data-cfemail="d59382e08a8283939a95b3a2a6fbb2baa3">[email protected]</span></a>. Individuals in the United States who are
deaf, deafblind, hard of hearing, or have a speech disability may dial
711 (TTY, TDD, or TeleBraille) to access telecommunications relay
services. Individuals outside the United States should use the relay
services offered within their country to make international calls to
the point-of-contact in the United States.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. This document is a final rule to
designate critical habitat for the Big Sandy crayfish and Guyandotte
River crayfish. Under the Endangered Species Act of 1973, as amended
(16 U.S.C. 1531 et seq.) (Act), any species that is determined to be an
endangered or threatened species requires critical habitat to be
designated, to the maximum extent prudent and determinable.
Designations and revisions of critical habitat can be completed only by
issuing a rule.
We listed the Big Sandy crayfish as a threatened species and the
Guyandotte River crayfish as an endangered species on April 7, 2016 (81
FR 20450). On January 28, 2020, we published in the Federal Register a
proposed critical habitat designation for the Big Sandy and Guyandotte
River crayfishes (85 FR 5072).
What this document does. This document is a final rule that
designates critical habitat for the Big Sandy crayfish and the
Guyandotte River crayfish. The critical habitat areas we are
designating in this rule constitute our current best assessment of the
areas that meet the definition of critical habitat for Big Sandy and
Guyandotte River crayfishes. We are designating a total of
approximately 717 stream kilometers (skm) (446 stream miles (smi)) of
rivers and streams in Kentucky, Virginia, and West Virginia for the Big
Sandy and Guyandotte River crayfishes.
The basis for our action. Section 4(a)(3) of the Act requires the
Secretary of the Interior (Secretary) to designate critical habitat
concurrent with listing to the maximum extent prudent and determinable.
Section 3(5)(A) of the Act defines critical habitat as (i) the specific
areas within the geographical area occupied by the species, at the time
it is listed, on which are found those physical or biological features
(I) essential to the conservation of the species and (II) which may
require special management considerations or protections; and (ii)
specific areas outside the geographical area occupied by the species at
the time it is listed, upon a determination by the Secretary that such
areas are essential for the conservation of the species. Section
4(b)(2) of the Act states that the Secretary must make the designation
on the basis of the best scientific data available and after taking
into consideration the economic impact, the impact on national
security, and any other relevant impacts of specifying any particular
area as critical habitat.
Peer review and public comment. Our designation is based on the
best scientific data available in the proposed and final listing rules
(80 FR 18710, April 7, 2015, and 81 FR 20450, April 7, 2016,
respectively) and proposed and final critical habitat designations (85
FR 5072, January 28, 2020, and this rule, respectively). The proposed
listing rule was peer-reviewed by four scientists with expertise in
crayfish and their habitats, and we also considered all comments and
information received from State and Federal resource agencies and the
public in developing the final listing rule (81 FR 20450, April 7,
2016). We solicited peer review for the proposed designation of
critical habitat; however, none of the three species experts responded
to our request. We considered all comments and information received
from State and Federal resource agencies and the public during the
comment period for the proposed designation of critical habitat.
Information we received from public comment is incorporated in this
final designation of critical habitat, as appropriate, or addressed
below in Summary of Comments and Recommendations.
Previous Federal Actions
We proposed the Big Sandy and Guyandotte River crayfishes for
listing on April 7, 2015 (80 FR 18710), and finalized the listing on
April 7, 2016 (81 FR 20450). As such, the Big Sandy crayfish is
included as a threatened species and the Guyandotte River crayfish is
included as an endangered species on the List of Endangered and
Threatened Wildlife in title 50 of the Code of Federal Regulations at
50 CFR 17.11(h). We also proposed to designate critical habitat for the
Big Sandy and Guyandotte River crayfishes on January 28, 2020 (85 FR
5072). For information on any actions prior to these rules, refer to
the proposed listing rule (80 FR 18710, April 7, 2015).
[[Page 14663]]
Summary of Changes From the Proposed Rule
We have considered all comments and information received during the
open comment period for the proposed designation of critical habitat
for the Big Sandy and Guyandotte River crayfishes. In the Critical
Habitat section of this document, we provide new or revised information
and references on crayfish movement (e.g., upstream) and our revised
screening analysis. Based on further review and an effort to clarify
our descriptions of the physical and biological features (PBFs), we
modified the PBF 1 by adding additional descriptive information about
habitat quality. Critical habitat boundaries remain unchanged from the
proposed critical habitat designation (85 FR 5072, January 28, 2020).
Summary of Comments and Recommendations
We requested written comments from the public on the proposed
designation of critical habitat for Big Sandy and Guyandotte River
crayfishes (85 FR 5072) during a 60-day comment period that opened on
January 28, 2020, and closed on March 30, 2020. A newspaper notice
inviting general public comment was published in USA Today on February
5, 2020. We did not receive any requests for a public hearing. We also
contacted appropriate Federal, State, and local agencies; scientific
organizations; and other interested parties and invited them to comment
on the proposed rule and draft economic analysis during the comment
period.
We sought comments from three independent specialists to ensure
that our designation was based on scientifically sound data,
assumptions, and analyses. We received no comments from the peer
reviewers. During the comment period, we received 45 comment submittals
from organizations or individuals in response to the proposed critical
habitat designation. Of these, 35 were nonsubstantive letters or form
letters (submitted by 3 nongovernmental organizations [one organization
packaged 3,401 subletters and another packaged 259 subletters]) in
support of the proposed critical habitat designation. One of these
letters, representing 23 nongovernmental organizations, summarized
threats to the species and their habitats, consistent with the
information provided in the proposed rule. Three letters provided
detailed information regarding the species or its habitat in favor of
additional critical habitat designation beyond what was proposed. One
letter provided detailed water depth/elevation data for the proposed
habitat. Five letters objected to the proposed designation of critical
habitat for either or both of the species. All substantive information
provided during the comment period has either been incorporated
directly into this final determination or is addressed below.
In addition, several letters also contained suggestions applicable
to general recovery issues for the Big Sandy and Guyandotte River
crayfishes, but not directly related to the critical habitat
designation (i.e., meaning these comments are outside the scope of this
critical habitat rule). These general comments included topics such as
the role of crayfish in aquatic ecosystems and the importance of clean
water, and the suggestion to seek information on crayfish restoration
from commercial crayfish farmers. While these comments may not be
directly incorporated into the critical habitat rule, we have noted the
suggestions and look forward to working with our partners on these
topics during recovery planning for the Big Sandy and Guyandotte River
crayfishes.
Comments From Federal Agencies
(1) Comment: The U.S. Army Corps of Engineers (Corps) provided
information on its operation of three multipurpose flood control dams
and how those actions could potentially affect proposed critical
habitat for the Big Sandy and Guyandotte River crayfishes. The Corps
also provided a point of contact for more information on the operations
of Corps reservoirs in the Guyandotte and Big Sandy basins.
Our response: We look forward to working with the Corps to
coordinate dam maintenance and operation activities while also
promoting the conservation of the Guyandotte and Big Sandy crayfishes
in the identified subunits.
Comments From States
Section 4(i) of the Act states, ``the Secretary shall submit to the
State agency a written justification for his failure to adopt
regulations consistent with the agency's comments or petition.'' The
Service received supportive comments from the West Virginia Division of
Natural Resources (WVDNR). WVDNR stated that there is no benefit to
exclusion of any of the proposed critical habitat areas. Further, WVDNR
noted that current occupied areas do not provide sufficient resiliency,
redundancy, or representation necessary to ensure persistence of the
Guyandotte River crayfish and it supported the inclusion of Huff Creek,
Indian Creek, and Guyandotte River as unoccupied critical habitat.
Also, WVDNR recognized the importance of special management actions for
Indian Creek as this stream is often dewatered (possibly due to
anthropogenic causes).
Public Comments
(1) Comment: Two commenters who have researched the Big Sandy and
Guyandotte River crayfishes expressed support for the proposed critical
habitat for both species, but they also recommended that we designate
additional unoccupied critical habitat to support the conservation of
the Guyandotte River crayfish. The commenters referred to two studies
completed after we published the proposed critical habitat rule (85 FR
5072, January 28, 2020). One study reported that individual Guyandotte
River crayfish may have a tendency to move in an upstream direction and
one study determined there is a high probability of detecting the
species in certain headwater areas of the Guyandotte River (Sadecky
2020, pp. 118-119 and Tidmore 2020, pp. 29-40). Both commenters
hypothesized that crayfish in the occupied Pinnacle Creek subunit may
move upstream in the Guyandotte River to occupy or reoccupy currently
unoccupied streams, and one commenter recommended the addition of four
specific tributary streams located upstream in the Guyandotte River be
designated as unoccupied critical habitat: Barkers Creek, Devil's Fork,
Winding Gulf, and Tommy Creek.
One commenter stated that unoccupied reaches are needed to allow
redistribution of the species, because Guyandotte River crayfish are
present in only two streams of the proposed critical habitat (without
this protection, delisting/recovery is improbable). The commenter also
noted they had witnessed several spills in Guyandotte River crayfish
habitat while conducting field research on the species.
Our response: These researchers have provided additional
information on the life history, behavior, habitat requirements, and
potential stressors (e.g., climate change) affecting the Guyandotte
River crayfish. Species' expansion into unoccupied streams would
benefit their conservation. The new information confirms that
individual crayfish move within stream reaches and that 59 percent of
crayfish movements were in an upstream direction (Sadecky 2020, p.
119). This study reported one male crayfish moved 620 m (2,034 ft)
upstream during a 44-day study period (Sadecky 2020, pp. 118-119). As
discussed in the proposed critical habitat rule, and affirmed by this
[[Page 14664]]
new information, we considered the potential for crayfish movement by
designating entire stream reaches between known occurrence locations as
critical habitat unless available data indicated that these areas
lacked PBFs. Additionally, the upstream terminus of most critical
habitat units (typically a stream confluence) is located beyond the
most upstream occurrence record of the species.
For the unoccupied Guyandotte River critical habitat subunit (1c),
which we determined was essential for providing connectivity between
the occupied Pinnacle Creek and Clear Fork subunits (1a and 1b,
respectively), the upstream limit is the Guyandotte River-Pinnacle
Creek confluence (which marks the downstream terminus of subunit 1a).
Therefore, a continuous reach of critical habitat extends from the
upstream terminus of the Pinnacle Creek subunit (1a), through the
Guyandotte River subunit (1c), to the upstream terminus of the Clear
Fork-Laurel Fork subunit (1b), a distance of approximately 90 skm (56
smi). Spatially arranging the critical habitat units in this manner
facilitates crayfish movements consistent with PBF 6, which provides
for ``an interconnected network of streams and rivers . . . that
allow(s) for the movement of individual crayfish in response to
environmental, physiological, or behavioral drivers.''
We have reviewed information on the four specific streams
recommended for additional unoccupied critical habitat. One of these
streams, Barkers Creek, is located approximately 21 skm (13 smi)
upstream of the Guyandotte River-Pinnacle Creek confluence, and the
remaining three, Devil's Fork, Winding Gulf, and Tommy Creek (Stone
Coal Creek), are located approximately 40 to 42 skm (25 to 26 smi)
upstream of Pinnacle Creek. Of these, historical records of the
Guyandotte River crayfish are available from only Barkers Creek (1947).
In 2015, a total of 15 sites in these and other streams above Pinnacle
Creek were surveyed, but the Guyandotte River crayfish was not detected
(Loughman 2015b, pp. 4-5). Site assessment data from these surveys
indicated the extent of suitable habitat in these headwater areas was
limited and that habitat quality scores were generally lower than in
streams where the species was present (Loughman 2015b, pp. 12-25). The
commenter referenced a more recent habitat model (Tidmore 2020, pp. 29-
40), which determined there was a high probability of suitable habitat
in some portions of these streams; however, 31 validation surveys
associated with this study failed to locate the species outside of the
streams already proposed as occupied critical habitat (although the
report does not indicate how many of these validation surveys occurred
in the 4 streams recommended as unoccupied critical habitat).
Under the second prong of the Act's definition of critical habitat,
we can designate critical habitat in areas outside of 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 acknowledge that some segments of these streams contain
areas of suitable habitat as described in Tidmore (2020, pp. 29-40) and
contain one or more of the PBFs required by the species, and we
conclude that the best available information (e.g., aforementioned
validation surveys) does not indicate that these areas are essential
for the conservation of the species. While the most downstream stream
(Barkers Creek) has a historical record of the species, we have no data
indicating the species was historically present in the more distant
upstream reaches or tributaries. Areas included in this final
designation provides sufficient resiliency, redundancy, and
representation to conserve the species.
As discussed in the proposed rule, we determined that the two
occupied critical habitat subunits (1a and 1b) are not sufficient to
ensure the conservation of the Guyandotte River crayfish; therefore, we
proposed three subunits (1c, 1d, and 1e) as unoccupied critical
habitat. Four of the proposed critical habitat subunits (two occupied,
two unoccupied; totaling approximately 106.6 skm (66.2 smi)) are
connected to each other, while the fifth unit, Huff Creek (subunit 1e
totaling 28.0 skm (17.4 smi)), provides for increased representation by
increasing the species' ability to disperse and colonize new areas
downstream of R.D. Bailey Dam, which fragments the range of the
species. As discussed in the proposed rule, four of these subunits have
records of the species, while the remaining subunit (Guyandotte River
subunit 1c) provides important connectivity between the currently
occupied subunits. As described in the proposed rule, successful
conservation of the Guyandotte River crayfish will require the
establishment of additional populations within the species' historical
range; the three unoccupied subunits advance this goal. Each unoccupied
subunit will contribute to the conservation of the species by
furthering the preliminary recovery goals identified in the recovery
outline of increasing the Guyandotte River crayfish's resiliency,
redundancy, and representation and are essential for its conservation.
The unoccupied critical habitat will provide increased redundancy
in case of spills or other stochastic events. We also recognize the
threat that spills and other stochastic and catastrophic events pose to
the species and note special management may be needed to address these
threats.
After considering all of the above factors, we conclude areas
included in this final designation provide sufficient resiliency,
redundancy, and representation to conserve the species, and the four
additional streams recommended by the commenters are not essential to
the conservation of the Guyandotte River crayfish and therefore do not
meet the definition of critical habitat.
We recognize that habitat is dynamic, and species may move from one
area to another over time. Therefore, 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 the recovery of the species. Areas that are important for the
conservation of the listed species, both inside and outside the
critical habitat designation, will continue to be subject to: (1)
Conservation actions implemented under section 7(a)(1) of the Act, (2)
regulatory protections afforded by the requirement in section 7(a)(2)
of the Act for Federal agencies to ensure their actions are not likely
to jeopardize the continued existence of any endangered or threatened
species, and (3) the prohibitions found in section 9 of the Act. These
protections and conservation tools will continue to contribute to
recovery of this species. Similarly, critical habitat designations made
on the best available information at the time of designation will not
control the direction and substance of future recovery plans, habitat
conservation plans (HCPs), or other species conservation planning
efforts if new information available at the time of these planning
efforts indicates a different outcome. Therefore, if the species is
found in the referenced areas during future surveys, they would be
subject to the conservation measures described above. In addition, we
may consider these areas during future recovery planning and/or
conservation assessments.
(2) Comment: One commenter who has researched the Guyandotte River
crayfish stated that alterations to
[[Page 14665]]
headwater streams could make them unsuitable for the species and affect
the water quality of downstream critical habitat units. Therefore, the
commenter recommended that these upper reaches be considered for
(unoccupied) critical habitat designation.
Our response: We acknowledge that degradation to upstream reaches
may affect downstream aquatic habitat. We will consider effects to
downstream habitats during recovery planning and in section 7
consultation processes. We refer the reader to our response to comment
1 above, which provides a thorough discussion of our rationale for
designating critical habitat for the Guyandotte River crayfish and the
regulatory protections afforded by section 7 of the Act.
(3) Comment: One commenter stated that our proposed critical
habitat designations were flawed because current survey data were
insufficient to determine that certain areas were currently occupied;
however, no specific examples were provided. The commenter concluded
that the Service should more precisely refine critical habitat units to
include only ``occupied stream segments.''
Our response: The regulations for designating critical habitat (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).'' As we discussed in the final listing rule for
the Big Sandy and Guyandotte River crayfishes (81 FR 20450, April 7,
2016) and the proposed critical habitat rule (85 FR 5072, January 28,
2020), occupied critical habitat units (and subunits) for these species
are based on positive survey data collected between 2006 and 2016 (the
time of listing), the best available information at that time. As we
acknowledged then, continuous survey data do not exist, and many
streams with known crayfish occurrences have not been surveyed
completely. The best available information indicated both species
occupy, transit through, or otherwise rely upon, stream reaches beyond
that of any single occurrence location. This conclusion is supported by
a study of Guyandotte River crayfish movements and habitat use, which
was completed after we published the proposed critical habitat rule
(see Sadecky 2020, entire). This study documented that individual
crayfish routinely engage in substantial movements both upstream and
downstream and that the species makes use of and moves through a
variety of interconnected habitat types including riffles, runs, and
pools (Sadecky 2020, pp. 150; 188-189). These data support our
determination that stream segments between known capture locations are
likely to be occupied by the crayfish and are essential to provide for
the conservation of the species.
In the final listing rule (81 FR 20450, April 7, 2016), we
identified habitat fragmentation as a stressor for both species, and in
our proposed critical habitat rule we identified one of the PBFs
essential to the conservation of the species as ``An interconnected
network of streams and rivers . . . that allow(s) for the movement of
individual crayfish in response to environmental, physiological, or
behavioral drivers. The scale of the interconnected stream network
should be sufficient to allow for gene flow within and among
watersheds.'' Therefore, we determined that critical habitat units
should be defined in a way that promotes connectivity between
documented occurrences and between populations, where possible. To this
end, the upstream limits of occupied critical habitat units occur
upstream of a known occurrence location. Downstream limits generally
terminate at stream confluences with the next larger receiving stream
or river (or in some cases at a reservoir). We designated the entire
reach between the upstream and downstream termini as critical habitat
unless available data indicated these areas lacked all of the PBFs
required by the species.
(4) Comment: One commenter stated that the draft economic analysis
underestimates the economic effects of the proposed designation on coal
mining. The commenter stated that critical habitat designation will
apply restrictive or protective measures to the entire watershed, and
the Service failed to correctly identify the scope and reach of the
potential economic, national security, and social impacts.
Our response: Our regulations at 50 CFR 424.19 require the Service
to compare the impacts with and without the critical habitat
designation when describing the probable economic impact of a
designation (Industrial Economics, Incorporated (IEc) 2019, pp. 1-2).
Although the commenter provided some economic information, it lacked
detail to correlate with the designation of critical habitat.
Determining the economic impacts of a critical habitat designation
involves evaluating the ``without critical habitat'' baseline versus
the ``with critical habitat'' scenario, to identify those effects
expected to occur solely due to the designation of critical habitat and
not from the protections that are in place due to the species being
listed under the Act. Economic effects solely due to the critical
habitat designation include both: (1) The costs of increased
administrative efforts that result from the designation; and (2) the
economic effects of changes in the action to avoid destruction or
adverse modification of critical habitat. These changes can be thought
of as ``changes in behavior'' or the ``incremental effect'' that would
most likely result from the designation if finalized.
A primary goal of the screening analysis is to provide information
about the likely incremental costs and benefits of the proposed
critical habitat designation to determine whether the rule meets the
threshold for an economically significant rule. As demonstrated, in
occupied units for both the Big Sandy and Guyandotte River crayfishes,
the incremental economic costs of the rule are likely to be limited to
additional administrative effort to consider adverse modification
during section 7 consultations. In the unoccupied subunits for the
Guyandotte River crayfish, incremental economic costs may also include
project modifications to activities with a Federal nexus. For the coal
mining industry in particular, we have identified that many of the
project recommendations the industry may provide already are required
under other rules and regulations (e.g., Clean Water Act, Surface
Mining Control and Reclamation Act, West Virginia Surface Mining
Reclamation Rule) (IEc 2020). Our analysis accounted for potential
Federal actions within the watershed, both inside and outside the
proposed critical habitat, that may affect the proposed critical
habitat. We identified two project modifications above and beyond these
existing baseline requirements that may result in costs to the mining
industry as well as Federal and State agencies. The final economic
impact screening analysis presents information on these costs, which
are substantially below the threshold for an economically significant
rule (IEc 2020).
National security and social impacts are not within the scope of
the economic impact screening analysis. However, section 4(b)(2) of the
Act allows for particular areas of proposed critical habitat to be
excluded from the final designation based on considerations of economic
impact, the impact on national security, and any other relevant impact
if the benefits of
[[Page 14666]]
such exclusion outweigh the benefits of specifying such area as part of
the critical habitat, unless the Secretary determines, based on the
best scientific and commercial data available, that the failure to
designate such area as critical habitat will result in the extinction
of the species concerned. However, the commenters did not identify any
particular areas that should be considered for exclusion, based on
these factors, nor did the commenter provide any specific substantive
information that would allow the Service to quantify or weigh the
incremental effects of these factors in any particular area of proposed
critical habitat to conduct an exclusion analysis. We did not receive
any information from Federal agencies responsible for national security
that the proposed designation would affect these interests, and
therefore we have not identified any areas for exclusion analysis based
on this factor.
(5) Comment: Two comments emphasized the historic importance of
protection and enhancement plans (PEPs) and related adaptive management
plans to protect the crayfish that the coal industry has developed with
the West Virginia Department of Environmental Protection (WDEP). One
commenter suggested maintaining and expanding the use of PEPs across
the proposed unoccupied habitat and expressed fears that the PEPs and
adaptative management plans may be undermined with the designation of
critical habitat. The comment concludes by suggesting that the
resources devoted to critical habitat regulations could have more
benefit for the crayfish if they were used in a coordinated voluntary
conservation and recovery effort instead.
Our response: We recognize the cooperative efforts of the WVDEP and
the WV Coal Association in developing PEPs on projects that may affect
these two crayfishes and looks forward to similar cooperative efforts
in the future. We will continue to work with partners to address
conservation and recovery of the species and its critical habitat
through PEPs and other adaptive management measures, as appropriate and
consistent with regulations. We note that current regulations and
voluntary cooperative efforts have not resulted in the development of
PEPs for any coal mining projects that would affect any streams that
are designated for unoccupied critical habitat. Therefore, the
designation of unoccupied critical habitat should not undermine any
existing PEPs but rather should facilitate the development of
additional PEPs and adaptive management efforts within these areas as
recommended by the commenter.
(6) Comment: In regard to the draft economic analysis (DEA), one
commenter stated the Service should not generalize potential economic
impacts to only one coal mine but should look at effects to the
watershed holistically, including associated development like railways
that transport coal. For coal mines higher in the watershed, the
commenter stated that site-specific conditions such as topography and
property access might make some conservation measures infeasible.
Our response: We recognize that effects for these species should be
considered on a watershed-level (see our response to comment 2 for
information on how we consider effects to downstream resources), and
also recognize that different conservation measures may be appropriate
for different projects. For example, small-scale projects high in the
watershed may not need the same scope or extent of conservation
measures compared to a large-scale project occurring directly adjacent
to a stream designated as critical habitat. In addition, construction
techniques or conservation measures may not be feasible or applicable
to all projects. As a result, when working with applicants, we consider
issues such as topography and access when determining what conservation
measures are appropriate. In addition, we have taken a watershed-level
approach when evaluating effects from proposed projects including coal
mines, as is reflected in the review of consultations and effects
incorporated in our economics screening analysis. However, our analysis
must be based on the best available information. For some project
types, there may be a limited suite of previous project reviews
available by which to estimate potential effects. We have updated our
economic screening analysis to incorporate results from recent
consultations.
Based on the public comments received on the proposed rule package,
a final economic impact screening analysis updated the evaluation of
potential costs associated with project modifications for consultations
on mining activities that occur in watersheds with unoccupied critical
habitat. In particular, the analysis relies on more detailed
information from us regarding the likely project modifications
recommended to avoid adverse modification of the critical habitat, and
a more detailed assessment of the incremental costs of these
modifications. Specifically, the final economic impact screening
analysis quantifies costs associated with biological assessment
stations and continuous turbidity loggers based on communication with
State and Federal regulatory agencies. The analysis additionally
provides information on the potential for additional costs to mine
operators of recommendations for more stringent cleanout of sediment
structures at the mines affecting unoccupied habitat. The final
economic impact screening analysis describes that project modifications
may not be requested of all mines given their unique characteristics;
however, to provide a conservative estimate of costs that is more
likely to overstate than understate costs, the analysis assumes all
future mines in watersheds with unoccupied habitat would undertake
these project modifications due to the critical habitat designation. We
expect to work with individual mines to assess which project
modifications are recommended for their site-specific conditions.
(7) Comment: One commenter believes that the proposed critical
habitat for the two species is too large and that we included streams
that ``do not contain these species and also do not contain the
features and characteristics necessary to potentially support the
species.''
Our response: Section 4 of the Act requires that we designate
critical habitat on the basis of the best scientific data available,
which we discuss and reference in the final listing rule (81 FR 20450,
April 7, 2016) and proposed critical habitat rule (85 FR 5072, January
28, 2020). All units contain the physical and biological features
needed to support the species. Additionally, in our responses to
comments 1 and 3 above, we provide a thorough discussion of our
rationale for designating (or not designating) critical habitat.
(8) Comment: One commenter stated that, in our analysis of likely
economic effects, we had incorrectly concluded that the Commonwealth of
Kentucky ``owns'' the water and that this (presumed) error invalidated
our entire economic analysis.
Our response: As we discussed in the proposed critical habitat
rule, for the purposes of analyzing the potential economic effects of
critical habitat designation, the critical habitat units/subunits were
determined to be in either private, Federal, or State ownership based
on the identification of the adjacent riparian landowner(s) (i.e.,
private, Federal, State). This comports with our original citation
(Energy & Mineral Law Institute 2011, pp. 414-415), which states that,
in Kentucky, riparian landowners own the stream bed
[[Page 14667]]
``to the middle of the stream thread.'' It appears the commenter may
have interpreted this to mean that adjacent landowners also own the
water in the stream. However, this interpretation is contradicted by
Kentucky Statute 151.120(1), which states, ``Water occurring in any
stream, lake, ground water, subterranean water or other body of water
in the Commonwealth which may be applied to any useful and beneficial
purpose is hereby declared to be a natural resource and public water of
the Commonwealth and subject to control or regulation for the public
welfare. . . .'' Our economic analysis is based upon the best available
information regarding critical habitat ownership.
(9) Comment: One coal company commented that costs associated with
mining are underestimated and sample costs used were from small
projects with minimal impacts. The commenter stated that costs of
monitoring/testing could be over $100,000/year; plan modifications
resulting in additional impacts to jurisdictional waters could increase
costs by $1 million; and costs associated with relocating fills/co-
locating valley fills could require new trucks at $2 million per truck
or $300,000 per shift.
Our response: At the time of the proposed rule, there was a limited
number of previous mining consultations that addressed these crayfish
species that could be used to estimate potential costs. Additional
consultations have been conducted since that time. We have updated the
analysis based on a review of recommendations made on multiple mining
consultations conducted throughout the range of these two species. The
final economic impact screening analysis provides a more detailed
assessment of the baseline requirements at mine sites within critical
habitat due to State and Federal regulation of mining even absent
critical habitat, as well as analysis of how the critical habitat rule
may result in additional project modification recommendations above and
beyond these baseline requirements. Specifically, Exhibit A-3 of
appendix A of the final economic impact screening analysis provides
information on our evaluation of the potential need for additional
project modifications at mine sites in unoccupied critical habitat
specifically to avoid adverse modification that would not already be
recommended based on existing Federal and State rules and requirements
in West Virginia. The identified incremental project modifications
triggered by the critical habitat rule include (1) cleaning out
sediment structures at 40-percent design capacity instead of the
currently required 60-percent design capacity and (2) installing
continuous turbidity loggers and biological assessment station sites to
statistically monitor sediment and other water quality attributes of
the streams that may affect the crayfish. The analysis also provides
cost estimates associated with these project modifications in
particular. The annualized cost of the turbidity loggers and biological
assessment stations is expected to be approximately $120,000 at both 3-
and 7-percent discount rates. These costs are expected to be incurred
by both the coal mining industry as well as some State entities
responsible for water quality monitoring. While data are not available
to quantify the potential costs of the sediment structure cleaning
recommendation, the screening analysis provides qualitative information
on this unquantified cost for consideration.
(10) Comment: One commenter stated coal mining is the only
consequential activity because high-quality coal is present and
provides economic benefits to the coal and steel industry. The coal and
steel industry support national security. Measures that would restrict
coal production would affect the economy, and the DEA should be revised
to include the costs of these lost economic resources.
Our response: No Federal agency responsible for national security
has requested an exclusion from Big Sandy crayfish or Guyandotte River
crayfish critical habitat designation.
We recognize that coal mining is prevalent in the range of these
two species, and as a result have placed specific emphasis in review of
coal mining projects in our screening analysis. The screening analysis
does not identify any incremental impacts of the critical habitat
designation that would likely restrict coal production in the region.
In the occupied units for both crayfish, the economic impacts of the
rule are expected to be limited to additional administrative effort to
consider adverse modification during section 7 consultations. In the
unoccupied subunits for the Guyandotte River crayfish, the economic
costs additionally may include project modification recommendations. We
have reviewed the best available information including existing rules
and regulations and recent coal mining consultations. We then
identified those project modifications that may be incremental and
attributable to the critical habitat rule, and have updated the
screening analysis to reflect these incremental effects to the coal
industry. See our response to comment 9 for additional information.
(11) Comment: One commenter stated that silvicultural best
management practices (BMPs) are implemented at high rates in the range
of the Big Sandy and Guyandotte River crayfishes and that these BMPs
are effective at protecting water quality, instream habitats, and
aquatic biota. The commenter supported these assertions by briefly
summarizing the results of 43 references that summarize the use and
effectiveness of BMPs in protecting aquatic species. The commenter
asked that the Service consider these references when making its final
determination of critical habitat for the Big Sandy and Guyandotte
River crayfishes. The commenter recommended the Service recognize BMPs
as routine practices for protecting aquatic habitats and these
practices should not be considered as ``special management.''
Our response: The best available information indicates BMP
implementation rates are relatively high (80 to 90 percent) for
commercial forestry operations across the ranges of the Big Sandy and
Guyandotte River crayfishes, and properly implemented BMPs can be
effective in protecting water quality and instream habitats (81 FR
20450, p. 20467, April 7, 2016). Commercial timber harvests occur
throughout the ranges of both crayfishes, and often occur directly
adjacent to, or on the steep slopes above, streams and rivers inhabited
by these species. We estimate that across the ranges of both species,
approximately 12,600 ha (30,745 ac) of forest are harvested annually,
representing approximately 1.9 percent of the total cover within the
region (Cooper et al. 2011a, p. 27; Cooper et al. 2011b, pp. 26-27;
Piva and Cook 2011, p. 46).
As we discussed in Summary of Factors Affecting the Species in the
final listing rule (81 FR 20450, April 7, 2016), the species and their
habitats continue to be at risk due to sedimentation associated with
improperly managed timber-harvesting activities. Even with high BMP
implementation rates, which vary from State to State, a significant
number of acres are logged each year with no BMP implementation (80 FR
18710, p. 18730, April 7, 2015). Monitoring and enforcement of BMPs in
areas of timber harvests, as well as ensuring that BMPs are routinely
updated to incorporate the best available information to reduce
sedimentation and instream disturbance in crayfish watersheds are
actions that are important to the conservation of
[[Page 14668]]
these species. Based on these factors, we conclude that features
essential to the conservation of the Big Sandy and Guyandotte River
crayfishes may require special management considerations or protections
from threats associated with timber-harvesting activities. These
threats may be ameliorated by implementation of BMPs that reduce
erosion, sedimentation, and stream bank destruction.
(12) Comment: One coal company commented that the proposed
designation overstates the stream miles and locations needed for
species protection and recovery. More specifically, the commenter
stated that conductivity is not a factor/relevant for designating
critical habitat (citing the Service's Recovery Outline ``[m]ean values
for conductivity and sulfates at sites supporting Big Sandy crayfish
were similar to sites where the species was not detected, suggesting
that these variables were not as influential in determining presence or
absence of this species.'' (2018) (p. 3).
Our response: The best available information as cited in the final
listing rule and the proposed critical habitat rule confirms that water
quality is important to the conservation of these crayfishes, and that
conductivity is one component of water quality that has been shown to
be correlated with Guyandotte River crayfish absence, as well as
negative effects to other benthic macroinvertebrates (see the summary
of information provided in 81 FR 20450, p. 20471, April 7, 2016).
Therefore, we have included reference to this water quality parameter
in our PBFs. We acknowledge that additional information is needed to
determine what thresholds or levels for each water quality parameter
are sufficient for the normal behavior, growth, reproduction, and
viability of all life stages of the species, and therefore have not
cited a specific level within the PBFs for these species. We will
continue to work with partners to evaluate the effects of various water
quality parameters on these species.
(13) Comment: One coal company stated that connectedness is not a
sufficient basis for ``over-designating'' a large part of the Tug Fork
River as critical habitat.
Our response: We have reviewed data regarding the distribution of
Big Sandy crayfish within the Tug Fork River. We proposed 65.9 smi of
critical habitat within the Tug Fork extending from the confluence with
Blackberry Creek upstream to the confluence with Dry Fork. The Big
Sandy crayfish is documented to occur within both of these tributaries
as well as throughout this reach of the Tug Fork River. Survey data
collected after the listing of the species documented Big Sandy
crayfish in the Tug Fork both upstream and downstream of the proposed
critical habitat reach (confirming continued occupancy), including near
the town of Hemphill, West Virginia, which is 28 smi upstream from the
terminus of the unit (Mountain State Biosurveys, LLC, 2017, p. 8). The
upper terminus of this unit has not been ``over-designated;'' instead,
suitable habitat continues to occur farther upstream. Consistent with
our previous listing determination and information received during the
public comment period, the best available data indicate that
interconnected stream segments are necessary to provide for movement of
individuals and gene flow between populations. Telemetry studies
conducted on Guyandotte River crayfish document that individuals engage
in substantial movements, including 819.9 m by a female between July
and August and 615.8 m by a male within the month of June. The species
moves through a variety of interconnected habitat types, including
riffles, runs, and pools (Sadecky 2020, pp. 150; 188-189). These data
support our determination that stream segments between known capture
locations are likely to be occupied by the crayfish and are essential
to provide for the conservation of the species.
(14) Comment: One coal company stated that small headwater streams
are not suitable habitat (cites 80 FR 18710, April 7, 2015).
Our response: We have reviewed the best available information
including new information provided during the public comment period
such as Tidmore (2020, pp. 36-37; 84), which found that stream
accumulation (a measure of the size of the watershed draining into a
stream reach) rather than stream order is a more accurate predictor of
habitat quality for these species. Other public commenters (Sadecky;
Loughman) noted that the Guyandotte River crayfish frequently moves
upstream. This information confirms that the two species need moderate
to large sized streams but that they are not restricted to occurring in
only third-order or larger streams and may occur in smaller order
streams when there is sufficient accumulation of water from upstream
reaches. We have reviewed the areas proposed for critical habitat
designation, and determined that no areas of proposed critical habitat
should be deleted as a result of unsuitable stream size or elevation.
(15) Comment: One coal company stated that the Service
significantly understates the economic impacts of its critical habitat
rule on people living and operating in the affected watersheds.
Our response: The commenter did not provide information or specific
examples of economic impacts on people living in the affected
watershed. The screening analysis provides an assessment of the likely
costs and benefits of the proposed critical habitat designation using
the best available information.
(16) Comment: One commenter supports the designation of critical
habitat for the two species but commented that the designation of
unoccupied critical habitat for the Guyandotte River crayfish and
reintroduction of the species would have adverse effects on the
ecosystems present in those areas.
Our response: The commenter did not provide specific detail about
these potential adverse effects. As we discussed in the proposed rule,
all three of the unoccupied critical habitat units for the Guyandotte
River crayfish are located within the species' historical range. Both
Indian Creek and Huff Creek (subunits 1d and 1e, respectively) have
historical records of the species, and the Guyandotte River (subunit
1c) connects (or connected) all known populations of the species.
Therefore, the historical distribution of the species demonstrates that
it is a naturally occurring component of the Upper Guyandotte River
ecosystem, and reintroduction of the species should not cause ``adverse
effects'' to the aquatic community in these areas.
(17) Comment: One commenter believes the proposed areas are too
large, the proposal includes areas where the species do not occur, and
the areas do not contain the features and characteristics necessary to
support the species. The commenter felt that three unoccupied units
(Indian Creek, Huff Creek, and Guyandotte River in Subunit 1c) should
not be included because the analysis is insufficient to explain why
these units were chosen and more information is needed to: (1) Evaluate
feasibility of all historically occupied reaches, (2) evaluate the cost
of restoring and maintaining stream health in these reaches, (3)
evaluate the additive value of these reaches to the species' overall
viability, and (4) determine the economic impact of designating each
reach as potential critical habitat.
Our response: We refer the reader to our responses to comments 1
and 3, above, which provide a thorough discussion of our rationale for
designating critical habitat for the Guyandotte River crayfish. The
revised screening analysis provides more details
[[Page 14669]]
on the likely economic costs associated with designating unoccupied
subunits for the Guyandotte River crayfish. In particular, it provides
a more detailed assessment of the project modification recommendations
that would be attributed to the proposed rule. In doing so, the final
economic impact screening analysis provides more detail on the
quantified costs associated with these incremental project
modifications, which total approximately $350,000 on an annualized
basis for the first 10 years. These costs are expected to be incurred
by both the mining industry as well as State agencies that monitor
water quality. Additionally, the final economic impact screening
analysis identifies potential unquantified costs associated with
recommendations for more stringent cleanout of sediment structures
(i.e., cleanout at 40 percent as opposed to 60 percent of design
capacity) in the unoccupied critical habitat areas.
(18) Comment: One commenter commented that the economic analysis
underestimates the economic costs of the proposed action because: (A)
The Service underestimated costs by using one mining project as an
example of conservation measures; (B) the baseline is incorrect,
because all areas are not occupied; (C) full economic effects are
missed (information is missing on compliance costs, construction costs,
lost resource revenue, and socioeconomic benefits, including lost tax
revenue, royalties to landowners, and wages/benefits to employees); (D)
outdated data are used (relies on 2002 data); (E) there is an erroneous
assumption that no project modification would be recommended; (F) there
is no consideration of State/local requirements (surface water
standards); (G) the analysis of property value impacts is flawed; and
(H) the assumption that all proposed areas are occupied is incorrect.
Our response: The screening analysis provides information on the
likely costs and benefits of the proposed critical habitat rule using
the best available data. In general, the screening analysis provides
conservative estimates where possible and is more likely to overstate
costs than understate costs, to determine if the rule could meet the
threshold for an economically significant rule. Following are responses
to the specific points of this comment:
(A) The revised screening analysis provides updated cost estimates
and more detail on the project modification recommendations likely to
be requested of the surface coal mining industry in the unoccupied
units for the Guyandotte River crayfish. In particular, it provides a
more thorough assessment of the project modifications we may request
that go above and beyond existing rules and requirements in West
Virginia based on a review of recent consultations on the species. We
identify two specific recommendations we may request that would be
incremental to the proposed rule and provide an updated assessment of
the costs associated with these recommendations.
(B) The screening analysis distinguishes between costs associated
with occupied and unoccupied subunits for the crayfish. The costs of
critical habitat designation for occupied habitat, as noted by the
commenter, are generally lower because the listing status of the
species provides baseline protection in these areas. That is, project
modifications undertaken as part of section 7 consultations to avoid
jeopardy to the species in these areas most likely also result in the
projects avoiding adverse modification of critical habitat. Thus, we
would not likely recommend more or different project modifications due
to the designation of critical habitat in these areas. It is for this
reason that the screening analysis separately considers the costs of
the proposed critical habitat designation in occupied and unoccupied
units. In particular, the incremental section 7 consultation costs
(i.e., above and beyond baseline costs) are separately assessed for
occupied and unoccupied units (IEc 2020, pp. 13, 15, 16 (Exhibits 5, 6,
and 7)). While the screening analysis identifies only limited
administrative costs resulting from the designation of the occupied
units, it estimates greater administrative costs, as well as the costs
of project modifications from the designation of the unoccupied units.
Specifically, the screening analysis identifies costs associated with
the designation of three unoccupied habitat subunits for the Guyandotte
River crayfish, where project modifications to future mining projects
are likely and could range from $119,933 to $120,682 in a single year.
(C) The commenter did not provide specific cost detail (in United
States dollars) on compliance costs, construction costs, lost resource
revenue, socioeconomic benefits, lost tax revenue, royalties to
landowners, or wages/benefits to employees. The screening analysis
finds that the incremental costs of the rule are likely to include
additional administrative costs to consider adverse modification during
section 7 consultations in all units, as well as costs of project
modification recommendations in the unoccupied subunits for the
Guyandotte River crayfish. The revised screening analysis provides a
more detailed assessment of costs that may arise from these project
modification recommendations. Given the limited incremental costs
associated with the proposed critical habitat designation, the
screening analysis does not anticipate reductions in coal production,
lost wages, or lost tax revenue resulting from the rule.
(D) The commenter is correct that the screening analysis relies on
a range of incremental costs derived from an analysis effort performed
in 2002. However, while the time required to complete the consultations
remains fixed at the levels assumed in 2002, the screening analysis
relies on updated salary and benefit information reflected in the 2019
Federal Government Schedule Rules. The administrative costs of
consultation consider not only the level of effort required of us and
other Federal agencies, but also of third parties to consultation,
including private industry. Exhibit 6 of the screening analysis
provides more details on the breakdown of costs by party.
(E) As described in (B) above, the screening analysis
differentiates between occupied and unoccupied subunits. In occupied
units, incremental costs due to project modifications are not
anticipated. As described in section 3 of the screening analysis, this
is because project modifications requested to avoid adverse
modification of critical habitat are expected to be identical to
project modifications requested to avoid jeopardy of the species where
they currently reside. In other words, while project modifications may
be requested in these occupied units, these same project modifications
would be requested due to the listing of the species, and therefore
critical habitat would not likely generate additional project
modification recommendations. In unoccupied subunits, project
modifications are not undertaken due to the presence of the crayfish
and thus there is greater potential for incremental costs of project
modifications. We identify that critical habitat designation may affect
mine projects in unoccupied habitat in West Virginia due to two project
modifications; the revised screening analysis provides more detail
about these recommendations as well as the costs associated with
implementing them.
(F) Section 4 of the screening analysis considers the potential for
State or other local laws to be triggered by the critical habitat
designation, resulting in an incremental impact of the rule. As
described in the screening analysis as well as the Incremental Effects
[[Page 14670]]
Memorandum, a range of State and local laws have been triggered by the
listing of the species under the Endangered Species Act (Act). However,
we expect that no new State or local rules will apply as a result of
the critical habitat. In other words, the cost of complying with State
and local laws that were triggered by the listing of the species are
baseline conditions and cannot be attributed to the critical habitat
designation specifically.
(G) As a riverine species, the crayfish do not occur on land, and
the literature has not evaluated effects of riverine critical habitat
on property values. While the economics screening memorandum
acknowledges the potential exists for the critical habitat designation
to affect private property values, it does not conclude that these
effects are ``likely,'' as implied in this comment. The economics
literature evaluating the potential land value effects of critical
habitat is limited and is specific to particular species and geographic
areas. The memorandum therefore highlights this issue as an uncertainty
associated with the screening analysis. Please also see comment and
response 8, above, regarding land ownership in the Commonwealth of
Kentucky.
(H) As described in (B) above, the screening analysis
differentiates costs incurred in occupied and unoccupied subunits. The
best available information supports our determination of which subunits
are occupied and unoccupied.
(19) Comment: One commenter suggests that our economic analysis
consider the economic benefits of critical habitat designation.
Our response: Section 6 of the screening analysis considers the
potential benefits of the critical habitat designation. Incremental
benefits of the critical habitat designation are most likely to occur
in the unoccupied subunits for the Guyandotte River crayfish, where
consultation to avoid adverse modification of critical habitat may
alter the management of projects, resulting in incremental conservation
efforts. Various economic benefits may result from these incremental
conservation efforts, including improved water quality and improved
ecosystem health for other coexisting species, which, in turn, may
reduce the effort necessary for water treatment and ecosystem
management.
Critical Habitat
Background
Refer to our January 28, 2020, proposed critical habitat rule (85
FR 5072) for a summary of species information available to the Service
at the time that the proposed rule was published.
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features:
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Our regulations at 50 CFR 424.02 define the geographical area
occupied by the species as an area that may generally be delineated
around species' occurrences, as determined by the Secretary (i.e.,
range). Such areas may include those areas used throughout all or part
of the species' life cycle, even if not used on a regular basis (e.g.,
migratory corridors, seasonal habitats, and habitats used periodically,
but not solely by vagrant individuals).
Conservation, as defined under section 3 of the Act, means to use
and the use of all methods and procedures that are necessary to bring
an endangered species or threatened species to the point at which the
measures provided pursuant to the Act are no longer necessary. Such
methods and procedures include, but are not limited to, all activities
associated with scientific resources management such as research,
census, law enforcement, habitat acquisition and maintenance,
propagation, live trapping, and transplantation, and, in the
extraordinary case where population pressures within a given ecosystem
cannot be otherwise relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the requirement that Federal agencies ensure, in consultation
with the Service, that any action they authorize, fund, or carry out is
not likely to result in the destruction or adverse modification of
critical habitat. The designation of critical habitat does not affect
land ownership or establish a refuge, wilderness, reserve, preserve, or
other conservation area. Such designation does not allow the government
or public to access private lands. Such designation does not require
implementation of restoration, recovery, or enhancement measures by
non-Federal landowners. Where a landowner requests Federal agency
funding or authorization for an action that may affect a listed species
or critical habitat, the Federal agency would be required to consult
with the Service under section 7(a)(2) of the Act. However, even if the
Service were to conclude that the proposed activity would result in
destruction or adverse modification of the critical habitat, the
Federal action agency and the landowner are not required to abandon the
proposed activity, or to restore or recover the species; instead, they
must implement reasonable and prudent alternatives to avoid destruction
or adverse modification of critical habitat.
Under the first prong of the Act's definition of critical habitat,
areas within the geographical area occupied by the species at the time
it was listed are included in a critical habitat designation if they
contain physical or biological features: (1) Which are essential to the
conservation of the species, and (2) which may require special
management considerations or protection. For these areas, critical
habitat designations identify, to the extent known using the best
scientific and commercial data available, those physical or biological
features that are essential to the conservation of the species (such as
space, food, cover, and protected habitat). In identifying those
physical or biological features that occur in specific occupied areas,
we focus on the specific features that are essential to support the
life-history needs of the species, including, but not limited to, water
characteristics, soil type, geological features, prey, vegetation,
symbiotic species, or other features. A feature may be a single habitat
characteristic or a more complex combination of habitat
characteristics. Features may include habitat characteristics that
support ephemeral or dynamic habitat conditions. Features may also be
expressed in terms relating to principles of conservation biology, such
as patch size, distribution distances, and connectivity.
Under the second prong of the Act's definition of critical habitat,
we can designate critical habitat in areas outside of the geographical
area occupied by the species at the time it is listed, upon a
determination that such areas are essential for the conservation of the
species. When designating critical habitat, the Secretary will first
evaluate areas occupied by the species. The Secretary will only
consider unoccupied areas to be essential where a critical habitat
designation limited to geographical areas occupied by the
[[Page 14671]]
species would be inadequate to ensure the conservation of the species.
In addition, for an unoccupied area to be considered essential, the
Secretary must determine that there is a reasonable certainty both that
the area will contribute to the conservation of the species and that
the area contains one or more of those physical or biological features
essential to the conservation of the species.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific data available. Further, our Policy on
Information Standards Under the Endangered Species Act (published in
the Federal Register on July 1, 1994 (59 FR 34271)), the Information
Quality Act (section 515 of the Treasury and General Government
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)),
and our associated Information Quality Guidelines provide criteria,
establish procedures, and provide guidance to ensure that our decisions
are based on the best scientific data available. They require our
biologists, to the extent consistent with the Act and with the use of
the best scientific data available, to use primary and original sources
of information as the basis for recommendations to designate critical
habitat.
When we are determining which areas should be designated as
critical habitat, our primary source of information is generally the
information developed during the listing process for the species.
Additional information sources may include 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) the prohibitions found in section 9 of the Act.
Federally funded or permitted projects affecting listed species outside
their designated critical habitat areas may still result in jeopardy
findings in some cases. These protections and conservation tools will
continue to contribute to the 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, HCPs, or other species
conservation planning efforts if new information available at the time
of these planning efforts calls for a different outcome.
Physical or Biological Features Essential to the Conservation of the
Species
In accordance with section 3(5)(A)(i) of the Act and regulations at
50 CFR 424.12(b), in determining which areas we will designate as
critical habitat from within the geographical area occupied by the
species at the time of listing, we consider the PBFs 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 essential
to the conservation of the species might include gravel of a particular
size required for spawning, alkaline soil for seed germination,
protective cover for migration, or susceptibility to flooding or fire
that maintains necessary early-successional habitat characteristics.
Biological features might include prey species, forage grasses,
specific kinds or ages of trees for roosting or nesting, symbiotic
fungi, or a particular level of nonnative species consistent with
conservation needs of the listed species. The features may also be
combinations of habitat characteristics and may encompass the
relationship between characteristics or the necessary amount of a
characteristic essential to support the life history of the species.
In considering whether features are essential to the conservation
of the species, the Service may consider an appropriate quality,
quantity, and spatial and temporal arrangement of habitat
characteristics in the context of the life-history needs, condition,
and status of the species. These characteristics include, but are not
limited to, space for individual and population growth and for normal
behavior; food, water, air, light, minerals, or other nutritional or
physiological requirements; cover or shelter; sites for breeding,
reproduction, or rearing (or development) of offspring; and habitats
that are protected from disturbance.
Summary of Essential Physical or Biological Features
We derived the specific PBFs required for the Big Sandy crayfish
and the Guyandotte River crayfish from studies and observations of
these species' habitat, ecology, and life history, which are discussed
in full in the proposed critical habitat designation (85 FR 5072,
January 28, 2020), the species' proposed and final listing rules (80 FR
18710, April 7, 2015; 81 FR 20450, April 7, 2016, respectively), and
information summarized here. While data are sparse with which to
quantitatively define the optimal or range of suitable conditions for a
specific biological or physical feature needed by these species (e.g.,
degree of sedimentation, water quality thresholds, extent of habitat
connectedness), the available species-specific information, in
combination with information from other similar crayfish species,
provides sufficient information to qualitatively discuss the physical
and biological features needed to support these species. As discussed
in the proposed (80 FR 18710, April 7, 2015) and final (81 FR 20450,
April 7, 2016) listing rules, these species are classified as
``tertiary'' (stream) burrowing crayfish, meaning that they do not
exhibit complex burrowing behavior; instead of digging holes, they
shelter in shallow excavations under loose cobbles and boulders on the
stream bottom (Loughman 2013, p. 1). These species feed on plant and/or
animal material, depending on the season (Thoma 2009, p. 13; Loughman
2014, p. 21). The general life cycle pattern of these species is 2 to 3
years
[[Page 14672]]
of growth, maturation in the third year, and first mating in midsummer
of the third or fourth year (Thoma 2009, entire; Thoma 2010, entire).
Following midsummer mating, the annual cycle involves egg laying in
late summer or fall, spring release of young, and late spring/early
summer molting (Thoma 2009, entire; Thoma 2010, entire). The Big Sandy
and Guyandotte River crayfishes' likely lifespan is 5 to 7 years, with
the possibility of some individuals reaching 10 years of age (Thoma
2009, entire; Thoma 2010, entire; Loughman 2014, p. 20).
Suitable habitat for both the Big Sandy crayfish and the Guyandotte
River crayfishes appears to be limited to higher elevation, clean,
medium-sized streams and rivers in the upper reaches of the Big Sandy
and Guyandotte river basins, respectively (Jezerinac et al.1995, p.
171; Channell 2004, pp. 21-23; Taylor and Shuster 2004, p. 124; Thoma
2009, p. 7; Thoma 2010, pp. 3-4, 6; Loughman 2013, p. 1; Loughman 2014,
pp. 22-23). These streams are generally third-order streams or larger;
however, the species may also occur in smaller order streams, as stream
accumulation rather than stream order has been found to be a better
predicter of habitat quality for these species (Tidmore 2020, pp. 36-
37; 84). Both species are associated with the faster moving water of
riffles and runs or pools with current (Jezerinac et al. 1995, p. 170).
An important habitat feature for both species is large, unembedded slab
boulders on a sand, cobble, or bedrock stream bottom (Loughman 2013, p.
2; Loughman 2014, pp. 9-11). Excessive sedimentation leading to
substrate embeddedness can smother these habitats, creating unsuitable
habitat conditions for these species (Jezerinac et al. 1995, p. 171;
Channell 2004, pp. 22-23; Thoma 2009, p. 7; Thoma 2010, pp. 3-4;
Loughman 2013, p. 6). As such, we have determined that the following
PBFs are essential for the conservation of the Big Sandy and Guyandotte
River crayfishes:
(1) Fast-flowing stream reaches with unembedded slab boulders,
cobbles, or isolated boulder clusters within an unobstructed stream
continuum (i.e., riffle, run, pool complexes) of permanent, moderate-
to large-sized (generally third order and larger) streams and rivers
(up to the ordinary high-water mark as defined at 33 CFR 329.11).
(2) Streams and rivers with natural variations in flow and seasonal
flooding sufficient to effectively transport sediment and prevent
substrate embeddedness.
(3) Water quality characterized by seasonally moderated
temperatures and physical and chemical parameters (e.g., pH,
conductivity, dissolved oxygen) sufficient for the normal behavior,
growth, reproduction, and viability of all life stages of the species.
(4) An adequate food base, indicated by a healthy aquatic community
structure including native benthic macroinvertebrates, fishes, and
plant matter (e.g., leaf litter, algae, detritus).
(5) Aquatic habitats protected from riparian and instream
activities that degrade the PBFs described in (1) through (4), above,
or cause physical (e.g., crushing) injury or death to individual Big
Sandy or Guyandotte River crayfish.
(6) An interconnected network of streams and rivers that have the
PBFs described in (1) through (4), above, that allow for the movement
of individual crayfish in response to environmental, physiological, or
behavioral drivers. The scale of the interconnected stream network
should be sufficient to allow for gene flow within and among
watersheds.
Special Management Considerations or Protections
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 which 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 Big Sandy
and Guyandotte River crayfishes may require special management
considerations or protections to reduce the following threats: (1)
Resource extraction (coal mining, timber harvesting, and oil and gas
development); (2) road construction and maintenance (including unpaved
roads and trails); (3) instream dredging or construction projects; (4)
off-road vehicle (ORV) use; (5) activities that may modify water
quantity or quality; and (6) other sources of point and non-point
source pollution, including spills. These activities are discussed in
more detail under Summary of Factors Affecting the Species in the final
listing rule (81 FR 20450; April 7, 2016). These threats are in
addition to potential adverse effects of drought, floods, or other
natural phenomena.
Management activities that could ameliorate these threats include,
but are not limited to: Use of best management practices (BMPs)
designed to reduce erosion, sedimentation, and stream bank destruction;
development of alternatives that avoid and minimize stream bed
disturbances; regulation of ORV use in or near streams; reduction of
other watershed and floodplain disturbances that contribute excess
sediments or pollutants into the water; and development and
implementation of spill prevention and response plans.
Criteria Used To Identify Critical Habitat
As required by section 4(b)(2) of the Act, we use the best
scientific data available to designate critical habitat. In accordance
with the Act and our implementing regulations at 50 CFR 424.12(b), we
review available information pertaining to the habitat requirements of
the species and identify specific areas within the geographical area
occupied by the species at the time of listing and any specific areas
outside the geographical area occupied by the species to be considered
for designation as critical habitat. We are designating critical
habitat in areas within the geographical area occupied by the Big Sandy
crayfish and Guyandotte River crayfish at the time of listing in 2016.
For the Guyandotte River crayfish, we also are designating areas in
three specific streams outside the geographical area occupied by the
species at the time of listing because we have determined that a
designation limited to occupied areas would be inadequate to ensure the
conservation of the species. These currently unoccupied streams are
within the larger occupied watershed of the Guyandotte River crayfish's
range and adjacent to currently occupied streams. The critical habitat
designation includes the water and stream channel up to the ordinary
high water mark as defined at 33 CFR 329.11. Refer to the Big Sandy and
Guyandotte River crayfish proposed critical habitat designation for a
full description of criteria used to identify critical habitat (85 FR
5072, January 28, 2020).
On December 16, 2020, we published a final rule in the Federal
Register (85 FR 81411) adding a definition of ``habitat'' to our
regulations for purposes of critical habitat designations under the
Endangered Species Act of 1973, as amended (Act). This rule became
effective on January 15, 2021 and only applies to critical habitat
rules for which a proposed rule was published after January 15, 2021.
Consequently, this new regulation does not apply to this final rule.
The current distribution of both the Big Sandy and the Guyandotte
River crayfishes is fragmented and much reduced from its historical
distribution. As specified in the Service's recovery outline for these
species (Service 2018,
[[Page 14673]]
entire), we anticipate that recovery will require protection of
existing populations and habitat for both species, and in the case of
the Guyandotte River crayfish, reestablishing populations in some
historically occupied streams where the species is presumed extirpated.
These additional populations will increase the species' resiliency,
representation, and redundancy, thereby increasing the likelihood that
it will sustain populations over time.
Sources of data for this critical habitat designation include
crayfish survey and habitat assessment reports (Jezerinac et al. 1995,
entire; Channell 2004, entire; Taylor and Schuster 2004, entire; Thoma
2009a, entire; Thoma 2009b, entire; Thoma 2010, entire; Loughman 2013,
entire; Loughman 2014, entire; Loughman 2015a, entire; Loughman 2015b,
entire) and project-specific reports submitted to the Service
(Appalachian Technical Services, Inc. (ATS) 2009, entire; ATS 2010,
entire; Vanasse Hangen Brustlin, Inc. (VHB) 2011, entire; ATS 2012a,
entire; ATS 2012b, entire; Virginia Department of Transportation (VDOT)
2014a, entire; VDOT 2014b, entire; VDOT 2015, entire; ATS 2017, entire;
Red Wing 2017, entire; Third Rock 2017, entire; Red Wing 2018, entire).
Areas Occupied at the Time of Listing
As described in the final listing rule for the Big Sandy and
Guyandotte River crayfishes (81 FR 20450, April 7, 2016), the best
available data (stream surveys conducted between 2006 and 2016)
indicate that at the time of listing, the Big Sandy crayfish occupied
26 streams and rivers (generally third order and larger) in the Russell
Fork, Upper Levisa Fork, Lower Levisa Fork, and Tug Fork watersheds in
the upper Big Sandy River basin of Kentucky, Virginia, and West
Virginia. The Guyandotte River crayfish occupied two similarly sized
streams in the Upper Guyandotte River basin of West Virginia.
We are designating a total of 4 occupied units, including a total
of 19 occupied subunits, as critical habitat for the Big Sandy crayfish
in the aforementioned watersheds. In addition, we are designating one
unit, including two occupied subunits, as critical habitat for the
Guyandotte River crayfish in the Upper Guyandotte River watershed in
West Virginia. For the Guyandotte River crayfish, we have determined
that a designation limited to the two occupied subunits would be
inadequate to ensure the conservation of the species. The Guyandotte
River crayfish is historically known from six connected stream systems
within the Upper Guyandotte River basin (its geographical range);
however, at the time of listing, the species was limited to two
isolated subunits in Pinnacle Creek and Clear Fork. In our review, we
determined that these two subunits would not provide sufficient
redundancy or resiliency necessary for the conservation of the species.
The Pinnacle Creek population is known from a 5.2-skm (3.3-smi) stream
reach, but survey data collected between 2009 and 2015 indicate that
this reach has low crayfish numbers. This small, isolated population is
at risk of extirpation from demographic and environmental
stochasticity, or a catastrophic event. The Clear Fork population
occurs along a 33-km (22-mi) stream reach, and surveys from 2015
indicate Guyandotte River crayfish was the most prevalent crayfish
species collected at sites maintaining the species (Loughman 2015b, pp.
9-11). The primary risk to this population is extirpation from a
catastrophic event; however, because it is an isolated population,
demographic or stochastic declines present some risk.
Areas Outside of the Geographic Range at the Time of Listing
Because we have determined occupied areas alone are not adequate
for the conservation of the Guyandotte River crayfish, we have
evaluated whether any unoccupied areas are essential for the
conservation of the species. We considered the life-history, status,
and conservation needs of both species. Our decision was further
informed by observations of species-habitat relationship, habitat
suitability models derived from these observations, and the locations
of historical records to identify which features and specific areas are
essential for the conservation of the species and, as a result, the
development of the critical habitat designation.
We are designating as critical habitat three currently unoccupied
subunits within the Upper Guyandotte basin unit. We have determined
that each is essential for the conservation of the species. Two of the
currently unoccupied subunits, Guyandotte River and Indian Creek,
provide for an increase in the species' redundancy and, by providing
connectivity between the subunits, increase the resiliency of the
extant populations in Pinnacle Creek and Clear Fork. One of the
unoccupied subunits, Huff Creek, is isolated from the other subunits by
the R.D. Bailey dam, which fragments the range of the species and
limits the species' ability to disperse and colonize new areas.
Therefore, this unit will increase the species' overall redundancy and
add representation in this area of its historical range. As discussed
in the recovery outline for the species (Service 2018, entire),
successful conservation of the Guyandotte River crayfish will require
the establishment of additional populations within the species'
historical range; the three unoccupied subunits advance this goal. All
three subunits have at least one of the PBFs essential to the
conservation of the species, as described below.
To reduce threats to the species and its habitat, the Service is
working cooperatively with the West Virginia Department of
Environmental Protection and the coal industry to develop protection
and enhancement plans for coal mining permits that may affect crayfish
streams. The Service and WVDEP are also working with the Hatfield McCoy
Trail system and the Federal Highway Administration to avoid and
minimize effects from ORV use in and around Pinnacle Creek and other
trail systems adjacent to crayfish streams. Local watershed groups
along with State and Federal partners have been conducting stream
restoration and enhancement projects in Huff Creek. In addition, the
Service, West Virginia Department of Natural Resources, Virginia
Department of Wildlife Resources, and West Liberty University are
working together to conduct additional research on both the Guyandotte
River and Big Sandy crayfishes, including research on habitat use,
activity patterns, and captive holding and propagation. We are
reasonably certain that each unoccupied subunit will contribute to the
conservation of the species by furthering preliminary recovery goals
identified in the recovery outline. Establishing populations in the
three unoccupied subunits will increase the Guyandotte River crayfish's
resiliency, redundancy, and representation, thereby bolstering the
species' viability and reducing the species' risk of extinction.
General Information on the Maps of the Critical Habitat Designation
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 under Regulation Promulgation. We include more detailed
information on the boundaries of the critical habitat designation in
the discussion of individual units and subunits, provided below. We
will make the coordinates or plot points or both on which each map is
based available to the public on <a href="https://www.regulations.gov">https://www.regulations.gov</a> under
Docket No.
[[Page 14674]]
FWS-R5-ES-2019-0098, and at the West Virginia Ecological Services Field
Office (see FOR FURTHER INFORMATION CONTACT, above). When determining
critical habitat boundaries, we made every effort to avoid including
developed areas such as lands covered by pavement, buildings, and other
structures because such lands lack PBFs necessary for the Big Sandy and
Guyandotte River crayfishes. 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
designated 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 PBFs in the
adjacent critical habitat.
In making its determination on the appropriate scale for
designating critical habitat, the Service may consider, among other
things, the life history of the species, the scales at which data are
available, and biological or geophysical boundaries (such as
watersheds). For the Big Sandy and the Guyandotte River crayfishes,
streams or stream segments (as opposed to individual occurrence
locations) are the appropriate units for designating critical habitat.
We base this on the following factors:
(1) The regional geology and stream morphology in the upper Big
Sandy and Upper Guyandotte River basins lead to a general abundance of
slab boulders and/or cobble in most streams, although in some areas
this habitat is sparse or occurs as isolated boulder clusters.
Furthermore, while continuous crayfish survey data do not exist (i.e.,
not every reach of every stream has been surveyed), more intensive
crayfish surveys in portions of the Russell Fork watershed and in Clear
Fork and Pinnacle Creek in the Upper Guyandotte basin indicate that the
Big Sandy and Guyandotte River crayfishes may occur throughout stream
reaches where the required PBFs (e.g., riffles and runs with unembedded
slab boulders or unembedded boulder clusters, adequate water quality,
and connectivity) are present.
(2) Streams are dynamic, linear systems, and local water quality
parameters (e.g., dissolved oxygen, temperature, pH) can vary
temporally and are largely reliant on upstream conditions (barring
known point or non-point source discharges or other factors that affect
water quality more locally). Likewise, the various stream microhabitats
(e.g., riffles, runs, pools) with attendant fauna do not generally
occur in isolation, but form a continuous gradient along the stream
continuum. Because the known occupied Big Sandy and Guyandotte River
crayfish sites possess the required PBFs, at least to some minimal
degree, for these species to survive, and because these PBFs are likely
representative of stream conditions beyond any single survey location,
we conclude that Big Sandy and Guyandotte River crayfish likely occupy,
or otherwise rely upon, stream areas beyond any single occurrence
location.
(3) Studies of other crayfish species suggest that adult and larger
juvenile Big Sandy and Guyandotte River crayfish move both upstream and
downstream in response to changes in environmental conditions or local
crayfish demographics, or for other behavioral or physiological reasons
(Momot 1966, pp. 158-159; Kerby et al. 2005, p. 407; Sadecky 2020,
entire). The evidence also indicates that some individuals, especially
newly independent juveniles, may be passively dispersed to downstream
locations by swiftly flowing water (Loughman 2019, pers. comm.).
Therefore, within the greater geographical ranges of the Big Sandy
crayfish and Guyandotte River crayfish (i.e., the upper Big Sandy River
basin and the Upper Guyandotte River basin, respectively), the general
morphology and connectedness of the streams and the life history of
these species lead us to reasonably conclude that both species likely
occupy, transit through, or otherwise rely upon stream reaches beyond
any known occurrence location. We acknowledge that some areas along a
stream segment designated as critical habitat may not contain all of
the PBFs required by either species, either naturally or as a result of
habitat modification, but based on the considerations discussed above,
we conclude that streams or stream segments are appropriate units of
scale for describing critical habitat for these species.
In summary, we designate as critical habitat streams and stream
segments up to the ordinary high water mark that were occupied at the
time of listing and contain one or more of the PBFs that are essential
to support the life-history processes of the Big Sandy crayfish and the
Guyandotte River crayfish. Additionally, for the Guyandotte River
crayfish, we designate three subunits outside the geographical range of
that species occupied at the time of listing; however, these subunits
are within the larger occupied watershed. Two of these subunits have
historical records of the species, and one subunit, while not having a
record of the species, is within its historical range and provides
connectivity between occupied and unoccupied subunits. These unoccupied
subunits provide for increased redundancy, resiliency, and
representation of the Guyandotte River crayfish. We designate specific
critical habitat unit/subunit boundaries based on the following general
criteria:
(1) We delineated areas within the historical range of each
species that had positive survey data between 2006 and 2016 (Big
Sandy and Guyandotte River crayfishes were listed in 2016). For the
Guyandotte River crayfish, we also delineated three stream segments
as unoccupied critical habitat.
(2) Upstream termini of critical habitat units/subunits are
located at the confluence of the primary stream and a smaller named
tributary stream (usually a second-order stream). These termini are
generally within about 5 skm (3.1 smi) upstream of a known crayfish
occurrence record. The downstream termini are usually located at the
confluence of the primary stream and the next larger receiving
stream or river. In some instances, dams or reservoirs are used to
demark critical habitat units/subunits.
(3) We included intervening stream segments between occurrence
locations unless available occurrence data suggested the PBFs
required by the species were absent from the intervening segment.
(4) We describe the designated critical habitat units/subunits
by their upstream and downstream coordinates (i.e., latitude and
longitude) and geographic landmarks (e.g., confluence of named
streams and/or a town or population center).
Within these stream segments, designated critical habitat includes
the stream channel within the ordinary high water mark. As defined at
33 CFR 329.11, the ``ordinary high water mark'' on nontidal rivers is
the line on the shore established by the fluctuations of water and
indicated by physical characteristics such as a clear, natural line
impressed on the bank; shelving changes in the character of soil;
destruction of terrestrial vegetation; the presence of the litter and
debris; or other appropriate means that consider the characteristics of
the surrounding areas.
For the purposes of analyzing the potential economic effects of
critical habitat designation for the Big Sandy and Guyandotte River
crayfishes, the critical habitat units/subunits are determined to be in
either private, Federal, or State ownership. We describe ownership of
designated critical habitat units/subunits based on the identification
of the adjacent
[[Page 14675]]
riparian landowner(s) (i.e., private, Federal, or State entity). In
Kentucky, Virginia, and West Virginia, jurisdiction over the water
itself is maintained by the State or Commonwealth; however, ownership
of the stream bottom may vary depending on specific State law or legal
interpretation (Energy & Mineral Law Institute 2011, pp. 409-427;
Virginia Code at section 62.1-44.3; West Virginia Department of
Environmental Protection 2013, section C). For example, the bed of a
navigable stream in West Virginia may be owned by the state, whereas
the bed of a non-navigable stream may be privately owned (Energy &
Mineral Law Institute 2011, p. 427).
Final Critical Habitat Designation
For the Big Sandy crayfish, we designate approximately 582 skm (362
smi) in 4 units (including 19 subunits) in Kentucky, Virginia, and West
Virginia as critical habitat (see table 1, below). These streams or
stream segments were considered occupied at the time of listing and
contain all known extant populations. Based on our review, we conclude
that the units occupied by the Big Sandy crayfish at the time of
listing (described below) are representative of the species' historical
range and include core population areas in the Russell Fork watershed
in Virginia and the upper Tug Fork watershed (e.g., Dry Fork) in West
Virginia, as well as other peripheral populations in Kentucky,
Virginia, and West Virginia. We determined that there is sufficient
area for the conservation of the Big Sandy crayfish within these
occupied units, and we therefore do not designate any unoccupied
critical habitat for the species. The designated units constitute our
best assessment of areas that meet the definition of critical habitat
for the Big Sandy crayfish.
BILLING CODE 4333-15-P
[[Page 14676]]
[GRAPHIC] [TIFF OMITTED] TR15MR22.038
Table 2 identifies the ownership of lands adjacent to the entirely
aquatic Big Sandy crayfish designated critical habitat.
[[Page 14677]]
[GRAPHIC] [TIFF OMITTED] TR15MR22.006
For the Guyandotte River crayfish, we designate approximately 135
skm (84 smi) in one unit, consisting of five subunits, in West Virginia
as critical habitat. Approximately 67 skm (42 smi) in two subunits are
considered occupied by the species at the time of listing and represent
all known extant populations (see table 3, below). However, we
determined that these two subunits do not provide sufficient
resiliency, representation, or redundancy to ensure the conservation of
the species. Therefore, we are designating approximately 68 skm (42
smi) in three subunits as unoccupied critical habitat (see table 3,
below). The designated subunits constitute our best assessment of areas
that meet the definition of critical habitat for the Guyandotte River
crayfish.
[GRAPHIC] [TIFF OMITTED] TR15MR22.007
Table 4 identifies the ownership of lands adjacent to the entirely
aquatic Guyandotte River crayfish designated critical habitat.
[GRAPHIC] [TIFF OMITTED] TR15MR22.008
BILLING CODE 4333-15-C
Below, we present brief descriptions of all units/subunits and
reasons why they meet the definition of critical habitat for the Big
Sandy and Guyandotte River crayfishes. Each unit/subunit of Big Sandy
crayfish critical habitat contains all six PBFs identified above (see
Summary of Essential Physical or Biological Features) that are
essential to the conservation of the species. Each unit/subunit of
Guyandotte River crayfish critical habitat contains one or more of the
six PBFs.
Big Sandy Crayfish
Unit 1: Upper Levisa Fork--Dismal Creek, Buchanan County, Virginia
This occupied unit includes a single subunit of approximately 29.2
stream kilometers (skm) (18.1 smi) of Dismal Creek in the Upper Levisa
Fork
[[Page 14678]]
watershed. The upstream boundary of this unit is the confluence of
Dismal Creek and Laurel Fork, and the downstream limit is the
confluence of Dismal Creek and Levisa Fork. This unit is located almost
entirely on private land, except for any small amount that is publicly
owned in the form of bridge crossings or road easements.
Recent surveys of Dismal Creek indicated an abundance of unembedded
slab boulders and boulder clusters, and live Big Sandy crayfish have
been collected in relatively high numbers from several locations within
this unit (Thoma 2009b, p. 10; Loughman 2015a, p. 26). The Dismal Creek
watershed is mostly forested; however, U.S. Geological Survey (USGS)
topographic maps and aerial imagery (ESRI) provide evidence of legacy
and ongoing surface coal mining throughout the watershed. This unit may
need special management considerations due to resource extraction (coal
mining, timber harvesting, and oil and gas development), road
construction and maintenance (including unpaved roads and trails),
instream dredging or construction projects, and other sources of non-
point source pollution. The narrow stream valley contains scattered
residences and small communities, commercial facilities, occasional gas
wells, and transportation infrastructure (i.e., roads and rail lines).
There is a large coal coke plant straddling Dismal Creek at the
confluence of Dismal Creek and Levisa Fork. The Dismal Creek population
of Big Sandy crayfish represents the species' only representation in
the upper Levisa Fork watershed, which is physically isolated from the
rest of the Big Sandy basin by Fishtrap Dam and Reservoir. The Dismal
Creek population appears to be relatively robust and contributes to the
representation and redundancy of the species.
Unit 2: Russell Fork
Unit 2 consists of the 10 subunits described below. The PBFs within
this entire unit may need special management considerations from
resource extraction (coal mining, timber harvesting, and oil and gas
development), road construction and maintenance (including unpaved
roads and trails), instream dredging or construction projects, and
other sources of non-point source pollution.
Subunit 2a: Russell Fork, Buchanan and Dickenson Counties, Virginia,
and Pike County, Kentucky
Subunit 2a includes approximately 83.8 skm (52.1 smi) of the
Russell Fork mainstem from the confluence of Russell Fork and Ball
Creek at Council, Virginia, downstream to the confluence of Russell
Fork and Levisa Fork at Levisa Junction, Kentucky. Recent surveys of
the Russell Fork indicated an abundance of unembedded slab boulders,
boulder clusters, isolated boulders, and large cobbles, and live Big
Sandy crayfish have been captured at numerous locations within this
subunit (Thoma 2009b, p. 10; Loughman 2015a, p. 23). The Russell Fork
watershed is mostly forested; however, USGS topographic maps and aerial
imagery (ESRI) provide evidence of legacy and ongoing coal mining
throughout the watershed. In the upper portion of the watershed, the
narrow stream valley contains scattered residences and roads, but human
development increases farther downstream in the form of small
communities and towns, commercial facilities, and transportation
infrastructure (i.e., roads and rail lines). Approximately 12 skm (7.4
smi) of Subunit 2a is within the Jefferson National Forest and Breaks
Interstate Park. The remainder of the subunit is located almost
entirely on private land, except for any small amount that is publicly
owned in the form of bridge crossings or road easements. The Big Sandy
crayfish population in Subunit 2a appears to be relatively robust and
provides important connectivity between crayfish populations in several
tributary streams and rivers, contributing to their resiliency.
Additionally, some Big Sandy crayfish from Subunit 2a likely disperse
to areas downstream in the Levisa Fork watershed, contributing to the
species' representation and redundancy.
Subunit 2b: Hurricane Creek, Buchanan County, Virginia
Subunit 2b includes approximately 5.9 skm (3.7 smi) of Hurricane
Creek, a tributary to Russell Fork. This occupied subunit extends from
the confluence of Hurricane Creek and Gilbert Fork downstream to the
confluence of Hurricane Creek and Russell Fork at Davenport, Virginia.
Recent surveys of Hurricane Creek indicate an abundance of unembedded
slab boulders, boulders, and cobbles, and live Big Sandy crayfish have
been collected from two locations in lower Hurricane Creek (ATS 2009,
entire; VDOT 2014, entire). Based on our review of USGS topographic
maps and aerial imagery (ESRI) the Hurricane Creek watershed is
composed of relatively intact forest, with the exception of ongoing oil
or gas development on the ridges to the north and south of the creek
and scattered residences, small agricultural fields, and roads in the
narrow valley. This subunit is located almost entirely on private land,
except for any small amount that is publicly owned in the form of
bridge crossings or road easements. This subunit contributes to the
redundancy of the species.
Subunit 2c: Indian Creek, Buchanan and Dickenson Counties, Virginia
This occupied subunit includes approximately 7.4 skm (4.6 smi) of
Indian Creek, a tributary to Russell Fork. Subunit 2c extends from the
confluence of Indian Creek and Three Forks upstream of Duty, Virginia,
to the confluence of Indian Creek and Russell Fork below Davenport,
Virginia. Recent surveys of Indian Creek indicate an abundance of slab
boulders and boulders with low to moderate embeddedness, and live Big
Sandy crayfish have been collected from several locations (ATS 2009,
entire; ATS 2010, entire; Loughman 2015a, pp. 24-25). The USGS
topographic maps and aerial imagery (ESRI) indicate the lower portion
of the Indian Creek watershed is mostly forested, with the exception of
oil or gas development on a ridgeline to the west of the creek. The
upper portion of the watershed is dominated by a large surface coal
mine. The narrow creek valley contains scattered residences, small
agricultural fields, and roads. This subunit is located almost entirely
on private land, except for any small amount that is publicly owned in
the form of bridge crossings or road easements. This subunit
contributes to the redundancy of the species.
Subunit 2d: Fryingpan Creek, Dickenson County, Virginia
Subunit 2d includes approximately 4.6 skm (2.9 smi) of Fryingpan
Creek, a tributary to Russell Fork. This occupied subunit extends from
the confluence of Fryingpan Creek and Priest Fork downstream to the
confluence of Fryingpan Creek and Russell Fork. Recent surveys of
Fryingpan Creek indicate an abundance of isolated slab boulders and
boulder clusters with low embeddedness, and live Big Sandy crayfish
have been collected from the lower reach of Fryingpan Creek (Loughman
2015a, pp. 24-25). The USGS topographic maps and aerial imagery (ESRI)
indicate the watershed is mostly intact forest, with the exception of
oil or gas development on some adjacent ridgelines and legacy coal
mining in the upper portion of the watershed. The narrow creek valley
contains scattered residences, small agricultural fields, and roads.
This subunit is located almost entirely on private land, except for any
small amount that is publicly owned in the
[[Page 14679]]
form of bridge crossings or road easements. This subunit contributes to
the redundancy of the species.
Subunit 2e: Lick Creek, Dickenson County, Virginia
Subunit 2e includes approximately 16.2 skm (10.1 smi) of Lick
Creek, a tributary of Russell Fork. This occupied subunit extends from
the confluence of Lick Creek and Cabin Fork near Aily, Virginia,
downstream to the confluence of Lick Creek and Russell Fork at
Birchfield, Virginia. Recent surveys of Lick Creek indicate an
abundance of unembedded slab boulders and cobbles, with live Big Sandy
crayfish collected at several locations (ATS 2012a, entire; ATS 2012b,
entire). The USGS topographic maps and aerial imagery (ESRI) indicate
the watershed is mostly forested, with the exception of oil or gas
development on some adjacent ridgelines and legacy coal mining and
timber harvesting sites at various locations within the watershed. The
narrow creek valley contains scattered residences, small agricultural
fields, and roads. This subunit is located almost entirely on private
land, except for any small amount that is publicly owned in the form of
bridge crossings or road easements. This subunit contributes to the
redundancy of the species.
Subunit 2f: Russell Prater Creek, Dickenson County, Virginia
This occupied subunit includes approximately 8.4 skm (5.2 smi) of
Russell Prater Creek, a tributary to Russell Fork. This subunit extends
from the confluence of Russell Prater Creek and Greenbrier Creek
downstream to the confluence of Russell Prater Creek and Russell Fork
at Haysi, Virginia. Recent surveys of Russell Prater Creek indicate
abundant unembedded slab boulders, boulders, and cobbles, with live Big
Sandy crayfish collected from two sites in the lower portion of the
creek (Thoma 2009b, p. 10; Loughman 2015a, pp. 22-23). The USGS
topographic maps and aerial imagery (ESRI) indicate the Russell Prater
watershed is mostly forested; however, legacy coal mines and valley
fills occur throughout the watershed. The narrow creek valley contains
scattered residences, commercial facilities, small agricultural fields,
and roads. This subunit is located almost entirely on private land,
except for any small amount that is publicly owned in the form of
bridge crossings or road easements. This subunit contributes to the
redundancy of the species.
Subunit 2g: McClure River and McClure Creek and Open Fork, Dickenson
County, Virginia
Subunit 2g includes approximately 35.6 skm (22.1 smi) of the
McClure River and Creek, a major tributary to Russell Fork, and its
tributary stream, Open Fork (4.9 skm (3.0 smi)); this subunit is
occupied. The McClure River and McClure Creek section extends from the
confluence of McClure Creek and Honey Branch downstream to the
confluence of McClure River and Russell Fork. Recent surveys of the
McClure River indicated a generally sandy bottom with unembedded,
isolated slab boulders and boulder clusters, with live Big Sandy
crayfish collected at several locations (Thoma 2009b, p. 18; Loughman
2015a, p. 22). The McClure River valley contains scattered residences,
small communities, commercial mining-related facilities, small
agricultural fields, roads, railroads, and other infrastructure. The
riparian zone along much of the river is relatively intact.
The Open Fork section of Subunit 2g extends from the confluence of
Middle Fork Open Fork and Coon Branch downstream to the confluence of
Open Fork and McClure Creek at Nora, Virginia. Recent surveys of Open
Fork indicated unembedded, isolated slab boulders and boulder clusters,
with live Big Sandy crayfish collected at one location (Loughman 2015a,
p. 22). The narrow valley contains scattered residences, some small
agricultural fields, roads, and railroads.
The USGS topographic maps and aerial imagery (ESRI) indicate the
McClure River watershed is mostly forested; however, legacy and active
coal mining occurs in the middle and upper portions of the watershed.
Natural gas development is also apparent on many of the adjacent
ridges, and recent or ongoing logging operations continue at several
locations in the watershed. This subunit is located almost entirely on
private land, except for any small amount that is publicly owned in the
form of bridge crossings or road easements. This subunit contributes to
the redundancy of the species.
Subunit 2h: Elkhorn Creek, Pike County, Kentucky
Subunit 2h includes approximately 8.5 skm (5.3 smi) of Elkhorn
Creek, a tributary to Russell Fork. This occupied subunit extends from
the confluence of Elkhorn Creek and Mountain Branch downstream to the
confluence of Elkhorn Creek and Russell Fork at Elkhorn City, Kentucky.
Recent surveys indicated unembedded slab boulders and boulders in
Elkhorn Creek with ``extensive bedrock glides'' in the lower reaches of
the creek. Live Big Sandy crayfish have been collected from under slab
boulders in lower Elkhorn Creek (Loughman 2015a, pp. 18-19). The USGS
topographic maps and aerial imagery (ESRI) indicate the watershed is
mostly forested; however, significant legacy and active coal mining and
other mining and quarrying occurs in the watershed. Human development,
in the form of small communities, residences, small agricultural
fields, and commercial and industrial facilities, as well as roads,
railroads, and other infrastructure, occurs almost continually in the
riparian zone along Elkhorn Creek. The watershed to the south of
Elkhorn Creek is a unit of the Jefferson National Forest; however,
Subunit 2h is located almost entirely on private land, except for any
small amount that is publicly owned in the form of bridge crossings or
road easements. This subunit contributes to the redundancy of the
species.
Subunit 2i: Cranes Nest River and Birchfield Creek, Dickenson and Wise
Counties, Virginia
This occupied subunit includes approximately 24.6 skm (15.3 smi) of
Cranes Nest River, a major tributary to Russell Fork, and approximately
6.9 skm (4.3 smi) of Birchfield Creek, a tributary to Cranes Nest
River. The Cranes Nest River section of Subunit 2i extends from the
confluence of Cranes Nest River and Birchfield Creek downstream to the
confluence of Cranes Nest River and Lick Branch. Recent surveys of the
Cranes Nest River indicated abundant, unembedded slab boulders, boulder
clusters, isolated boulders, and coarse woody debris, and live Big
Sandy crayfish have been collected at multiple sites (Thoma 2009b, p.
10; VDOT 2014b, entire; VDOT 2015, entire; Loughman 2015a, pp. 21-22).
The riparian zone of this section is largely intact; however, human
development, in the form of residences, small communities, small
agricultural fields, roads, railroads, and other infrastructure, occurs
along some segments of Cranes Nest River.
The Birchfield Creek section of this subunit extends from the
confluence of Birchfield Creek and Dotson Creek downstream to the
confluence of Birchfield Creek and Cranes Nest River. Recent surveys
resulted in observations of live Big Sandy crayfish from a site in the
lower portion of Birchfield Creek. Human development, in the form of
residences, roads, and other
[[Page 14680]]
infrastructure, occurs in the riparian zone along Birchfield Creek.
The USGS topographic maps and aerial imagery (ESRI) indicate the
Cranes Nest River watershed is mostly forested; however, significant
legacy and active coal mining is evident throughout the watershed.
Natural gas development is ongoing on some of the ridges adjacent to
the Cranes Nest River. Approximately 10.3 skm (6.4 smi) of Subunit 2i
is within the John W. Flannagan Recreation Area. The remainder of the
subunit is located almost entirely on private land, except for any
small amount that is publicly owned in the form of bridge crossings or
road easements. Since 1964, this subunit has been physically isolated
from the Russell Fork by the John W. Flannagan Dam and Reservoir. The
Big Sandy crayfish population in Subunit 2i appears to be relatively
robust and contributes to the redundancy of the species.
Subunit 2j: Pound River, Dickenson and Wise Counties, Virginia
Subunit 2j includes approximately 28.5 skm (17.7 smi) of the Pound
River, a major tributary to Russell Fork that has been physically
isolated from that river since 1964 by the John W. Flannagan Dam and
Reservoir. This occupied subunit extends from the confluence of Pound
River and Bad Creek downstream to the confluence of Pound River and
Jerry Branch. Recent surveys indicate abundant, unembedded slab
boulders, boulders, and boulder clusters in the riffle and run
sections, and live Big Sandy crayfish have been collected from multiple
locations (Thoma 2009b, entire; VHB, Inc. 2011, entire; Loughman 2015a,
p. 21). The USGS topographic maps and aerial imagery (ESRI) indicate
the Pound River watershed is mostly forested; however, significant
legacy and recent coal mining is evident, especially to the south of
the river. Aerial imagery also indicates recent or ongoing logging
operations at several locations in the watershed. Much of the immediate
riparian zone is intact forest, with occasional human development in
the form of small communities, residences, small agricultural fields,
commercial development, and roads and other infrastructure adjacent to
the river. Approximately 11.4 skm (7.1 smi) of Subunit 2j is within the
John W. Flannagan Recreation Area. The remainder of the subunit is
located almost entirely on private land, except for any small amount
that is publicly owned in the form of bridge crossings or road
easements. The Big Sandy crayfish population in Subunit 2j appears to
be relatively robust and contributes to the redundancy of the species.
Unit 3: Lower Levisa Fork
Unit 3 consists of the two subunits described below. The unit may
need special management consideration due to resource extraction (coal
mining, timber harvesting, and oil and gas development); road
construction and maintenance (including unpaved roads and trails);
instream dredging or construction projects; and other sources of non-
point source pollution.
Subunit 3a: Levisa Fork, Pike, Floyd, and Johnson Counties, Kentucky
Subunit 3a includes approximately 33.4 skm (20.8 smi) of the
mainstem Levisa Fork in two disjunct segments. The occupied upstream
segment includes approximately 15.9 skm (9.9 smi) of the Levisa Fork
from its confluence with the Russell Fork at Levisa Junction, Kentucky,
downstream to the confluence of Levisa Fork and Island Creek at
Pikeville, Kentucky. Surveys indicate that suitable, unembedded,
boulder habitat is present in the Levisa Fork, and live Big Sandy
crayfish have been recently collected both upstream of Subunit 3a in
the Russell Fork and at one location near Pikeville, Kentucky (Thoma
2010, pp. 5-6; Loughman 2015a, pp. 5-10).
The occupied downstream segment of Subunit 3a includes
approximately 17.5 skm (10.9 smi) of the Levisa Fork near Auxier,
Kentucky, from the confluence of Levisa Fork and Abbott Creek
downstream to the confluence of Levisa Fork and Miller Creek. Recent
surveys indicate isolated boulder clusters in this segment, with live
Big Sandy crayfish collected from two locations (Thoma 2009b, entire;
Loughman 2014, pp. 12-13).
The USGS topographic maps and aerial imagery (ESRI) indicate the
Subunit 3a watershed is mostly forested; however, legacy and ongoing
coal mining is evident in several locations. Human development, in the
form of towns, small communities, residences, small agricultural
fields, commercial and industrial development, roads, railroads, and
other infrastructure, occurs nearly continuously in the riparian zone
of these segments of the Levisa Fork. Subunit 3a is located almost
entirely on private land, except for any small amount that is publicly
owned in the form of bridge crossings or road easements. The upper
segment of the subunit provides connectivity between the Russell Fork
and Shelby Creek populations (discussed below), and the lower segment
supports the most downstream population of Big Sandy crayfish in the
Levisa Fork watershed. Because the natural habitat characteristics
(e.g., size, gradient, bottom substrate) in the Levisa Fork differ from
those in the upper tributaries, this subunit increases Big Sandy
crayfish representation as well as the species' redundancy.
Subunit 3b: Shelby Creek and Long Fork, Pike County, Kentucky
This occupied subunit includes approximately 32.2 skm (20.0 smi) of
Shelby Creek, a tributary to Levisa Fork, and approximately 12.9 skm
(8.0 smi) of Long Fork, a tributary to Shelby Creek. The Shelby Creek
portion of this subunit extends from the confluence of Shelby Creek and
Burk Branch downstream to the confluence of Shelby Creek and Levisa
Fork at Shelbiana, Kentucky. The Long Fork portion of Subunit 3b
extends from the confluence of Right Fork Long Fork and Left Fork Long
Fork downstream to the confluence of Long Fork and Shelby Creek at
Virgie, Kentucky. Recent surveys of this subunit indicated an abundance
of unembedded slab boulders, boulder clusters, and anthropogenic
structures such as concrete slabs and blocks in Shelby Creek and Long
Fork. Live Big Sandy crayfish have been collected at multiple locations
within this subunit (Thoma 2010, pp. 5-6; Loughman 2015a, p. 18). The
USGS topographic maps and aerial imagery (ESRI) indicate the Shelby
Creek watershed is mostly forested; however, several large surface coal
mines are evident west of the stream. The Long Fork watershed is also
mostly forested; however, legacy and active coal mining is evident in
the upper portion of this watershed. Human development, in the form of
towns, small communities, residences, small agricultural fields,
commercial and industrial development, roads, railroads, and other
infrastructure, occurs nearly continuously in the riparian zone of
Shelby Creek. In the riparian zone of Long Fork, residences, small
agricultural fields, roads, and other infrastructure occur nearly
continuously. Subunit 3b is located almost entirely on private land,
except for any small amount that is publicly owned in the form of
bridge crossings or road easements. This subunit maintains the most
robust population of Big Sandy crayfish in the lower Levisa Fork (as
indicated by recent survey capture rates) and increases the
representation and redundancy of the species.
Unit 4: Tug Fork
Unit 4 consists of the seven subunits described below. The threats
within this
[[Page 14681]]
entire unit that may need special management consideration include
resource extraction (coal mining, timber harvesting, and oil and gas
development); road construction and maintenance (including unpaved
roads and trails); instream dredging or construction projects; and
other sources of nonpoint source pollution.
Subunit 4a: Tug Fork, McDowell, Mingo, and Wayne Counties, West
Virginia; Buchanan County, Virginia; and Pike and Martin Counties,
Kentucky
Subunit 4a includes approximately 117.8 skm (73.2 smi) of the Tug
Fork mainstem in two disjunct, occupied segments. The upstream segment
includes approximately 106.1 skm (65.9 smi) of the Tug Fork from the
confluence of Tug Fork and Elkhorn Creek at Welch, West Virginia,
downstream to the confluence of Tug Fork and Blackberry Creek in Pike
County, Kentucky. Surveys indicate that suitable unembedded boulder
habitat is sparse and discontinuous in this segment of the Tug Fork;
however, live Big Sandy crayfish have been collected at four locations
within this subunit (Loughman 2015a, p. 16). The downstream segment
includes approximately 11.7 skm (7.3 smi) of the Tug Fork near Crum,
West Virginia, from the confluence of Tug Fork and Little Elk Creek
downstream to the confluence of Tug Fork and Bull Creek.
The USGS topographic maps and aerial imagery (ESRI) indicate the
Subunit 4a watershed is mostly forested; however, there is evidence of
legacy and ongoing coal mining throughout the subunit. The riparian
zone in the upper segment of Subunit 4a is relatively intact, with
human development consisting primarily of road and railroad corridors.
In the lower segment of the subunit, towns, small communities,
residences, small agricultural fields, commercial and industrial
development, roads, railroads, and other infrastructure become
prevalent. Subunit 4a is located almost entirely on private land,
except for any small amount that is publicly owned in the form of
bridge crossings or road easements. Because of the diversity of natural
habitat characteristics (e.g., size, gradient, bottom substrate) in
this subunit, it contributes to Big Sandy crayfish representation and
redundancy. This subunit provides habitat for the Big Sandy crayfish,
as well as providing potential connectivity between the Dry Fork,
Panther Creek, Knox Creek, Peter Creek, Blackberry Creek, and Pigeon
Creek populations (discussed below).
Subunit 4b: Dry Fork and Bradshaw Creek, McDowell County, West Virginia
This occupied subunit includes approximately 45.2 skm (28.1 smi) of
Dry Fork, a large tributary to the Tug Fork, and approximately 4.6 skm
(2.9 smi) of Bradshaw Creek, a tributary to Dry Fork. The Dry Fork
portion of Subunit 4b extends from the confluence of Dry Fork and
Jacobs Fork downstream to the confluence of Dry Fork and Tug Fork at
Iaeger, West Virginia. The Bradshaw Creek portion extends from the
confluence of Bradshaw Creek and Hite Fork at Jolo, West Virginia,
downstream to the confluence of Bradshaw Creek and Dry Fork at
Bradshaw, West Virginia. Recent surveys indicate abundant unembedded
slab boulders, boulders, boulder clusters, and large cobbles, with live
Big Sandy crayfish collected at numerous locations within this subunit
(Loughman 2013, pp. 7-8; Loughman 2014, pp. 10-11; Loughman 2015a, pp.
14-15). The USGS topographic maps and aerial imagery (ESRI) indicate
the Subunit 4b watershed is mostly forested; however, legacy coal
mining is evident throughout, and natural gas development is apparent
in the upper portions of the watershed. The riparian zone in the upper
portion of Dry Fork is relatively intact, with human development
consisting primarily of road and railroad corridors. In the middle and
lower portions of Dry Fork, small communities, residences, small
agricultural fields, commercial and industrial development, roads,
railroads, and other infrastructure become prevalent. The Bradshaw
Creek riparian zone is dominated by residences, small agricultural
fields, roads, and other infrastructure. The middle portion of Dry Fork
passes through the Berwind Lake State Wildlife Management Area;
otherwise, Subunit 4b is located almost entirely on private land,
except for any small amount that is publicly owned in the form of
bridge crossings or road easements. This subunit appears to maintain a
relatively robust population of the Big Sandy crayfish and likely
serves as a source population for areas downstream in the Tug Fork
basin. This subunit contributes to the redundancy of the species.
Subunit 4c: Panther Creek, McDowell County, West Virginia
This occupied subunit includes approximately 10.7 skm (6.6 smi) of
Panther Creek, a tributary to Tug Fork. Subunit 4c extends from the
confluence of Panther Creek and George Branch downstream to the
confluence of Panther Creek and Tug Fork at Panther, West Virginia. Big
Sandy crayfish have been collected at one site in the lower portion of
this subunit. The USGS topographic maps and aerial imagery (ESRI)
indicate the majority of the Panther Creek watershed is intact forest
with evidence of only limited legacy coal mining. The riparian zone of
this narrow valley is largely intact, containing a road and occasional
residences (mostly in the lower portion of the subunit). Approximately
6.1 skm (3.8 smi) of Subunit 4c is located within the Panther State
Forest, and the remainder is located on private land, except for any
small amount that is publicly owned in the form of bridge crossings or
road easements. This subunit contributes to the redundancy of the
species.
Subunit 4d: Knox Creek, Buchanan County, Virginia, and Pike County,
Kentucky
Subunit 4d includes approximately 16.6 skm (10.3 smi) of Knox
Creek, a tributary to Tug Fork. This occupied subunit extends from the
confluence of Knox Creek and Cedar Branch downstream to the confluence
of Knox Creek and Tug Fork in Pike County, Kentucky. Recent surveys
indicated abundant unembedded slab boulders, boulders, and boulder
clusters, with live Big Sandy crayfish collected at four sites in the
Kentucky portion of the creek (Thoma 2010, p. 5; Loughman 2015a, p.
12). The USGS topographic maps and aerial imagery (ESRI) indicate the
Knox Creek watershed is mostly forested, with evidence of significant
legacy, recent, and ongoing coal mining in the watershed. In the upper
portion of this subunit, human development in the form of small
communities, residences, roads, railroads, and other infrastructure is
common. In the middle and lower sections, the riparian zone is
relatively intact, except for scattered residences and a road and
railroad line. Subunit 4d is located almost entirely on private land,
except for any small amount that is publicly owned in the form of
bridge crossings or road easements. This subunit contributes to the
redundancy of the species.
Subunit 4e: Peter Creek, Pike County, Kentucky
Subunit 4e includes approximately 10.1 skm (6.3 smi) of Peter
Creek, a tributary to Tug Fork. This occupied subunit extends from the
confluence of Left Fork Peter Creek and Right Fork Peter Creek at
Phelps, Kentucky, downstream to the confluence of Peter Creek and Tug
Fork at Freeburn, Kentucky. Recent surveys indicate
[[Page 14682]]
moderate sedimentation in Peter Creek, but some unembedded bottom
substrates continue to be present (Loughman 2015a, p. 12). Big Sandy
crayfish have been collected at two sites in the lower portion of this
subunit. The USGS topographic maps and aerial imagery (ESRI) indicate
the Peter Creek watershed is mostly forested, with evidence of
significant legacy, recent, and ongoing coal mining throughout the
watershed. The riparian zone in Subunit 4e is dominated by human
development in the form of small communities, residences, roads,
railroads, and other infrastructure. This subunit is located almost
entirely on private land, except for any small amount that is publicly
owned in the form of bridge crossings or road easements. Subunit 4e
contributes to the redundancy of the species.
Subunit 4f: Blackberry Creek, Pike County, Kentucky
Subunit 4f includes approximately 9.1 skm (5.7 smi) of Blackberry
Creek, a tributary to Tug Fork. This occupied subunit extends from the
confluence of Blackberry Creek and Bluespring Branch downstream to the
confluence of Blackberry Creek and Tug Fork. Recent surveys indicate
moderate sedimentation in Blackberry Creek, but some unembedded bottom
substrates continue to be present (Loughman 2015a, p. 12). Big Sandy
crayfish have been collected at two sites in the lower portion of this
subunit. The USGS topographic maps and aerial imagery (ESRI) indicate
the Blackberry Creek watershed is mostly forested, with evidence of
significant legacy, recent, and ongoing coal mining throughout the
watershed. The narrow riparian zone in Subunit 4f is dominated by human
development in the form of small communities, residences, roads, and
other infrastructure. This subunit is located almost entirely on
private land, except for any small amount that is publicly owned in the
form of bridge crossings or road easements. Subunit 4f contributes to
the redundancy of the species.
Subunit 4g: Pigeon Creek and Laurel Creek, Mingo County, West Virginia
Subunit 4g includes approximately 14.0 skm (8.7 smi) of Pigeon
Creek, a tributary to Tug Fork, and approximately 11.1 skm (6.9 smi) of
Laurel Fork, a tributary to Pigeon Creek; this subunit is occupied. The
Pigeon Creek portion of this subunit extends from the confluence of
Pigeon Creek and Trace Fork downstream to the confluence of Pigeon
Creek and Tug Fork. The Laurel Creek portion extends from the
confluence of Laurel Fork and Lick Branch 0.6 skm (0.4 smi) downstream
of the Laurel Lake dam to the confluence of Laurel Fork and Pigeon
Creek at Lenore, West Virginia.
Recent surveys indicate the bottom substrates in Pigeon Creek
consist of fine sediments, sand, and occasional boulders, with Big
Sandy crayfish collected at a single site (Loughman 2015a, p. 11).
Laurel Fork maintains a bottom substrate of sand, gravel, cobble, and
occasional slab boulders, with Big Sandy crayfish collected at two
sites (Loughman 2015a, pp. 10-11). The USGS topographic maps and aerial
imagery (ESRI) indicate the Pigeon Creek watershed is mostly forested,
with evidence of significant legacy, recent, and ongoing coal mining
and valley fills in the upper portion of the watershed. The Pigeon
Creek riparian zone is dominated by human development in the form of
small communities, residences, roads, railroads, and other
infrastructure. The majority of the Laurel Creek watershed is located
within the Laurel Creek State Wildlife Management Area and is mostly
intact forest; however, the narrow riparian zone is dominated by human
development in the form of residences, roads, and other infrastructure.
Subunit 4g is located almost entirely on private land, except for any
small amount that is publicly owned in the form of bridge crossings or
road easements. With the exception of the Big Sandy crayfish occurrence
in the Tug Fork mainstem near Crum, West Virginia, Subunit 4g supports
the most downstream Big Sandy crayfish population in the Tug Fork
watershed. Therefore, this subunit contributes to the representation
and redundancy of the species.
Guyandotte River Crayfish
Below we present brief descriptions of all units/subunits and
reasons why they meet the definition of critical habitat for the
Guyandotte River crayfish. Each unit/subunit contains one or more of
the PBFs identified above (see Summary of Essential Physical or
Biological Features) that are essential to the conservation of the
species.
Unit 1: Upper Guyandotte
We propose to designate a single critical habitat unit (Unit 1),
consisting of five subunits, for the Guyandotte River crayfish. This
unit may require special management considerations or protection to
address threats from resource extraction (coal mining, timber
harvesting, and oil and gas development), road construction and
maintenance (including unpaved roads and trails), instream dredging or
construction projects, and other sources of point and non-point source
pollution including spills. In addition, subunits 1a and 1e may need
special management considerations to address threats from ORV use. The
subunits are described below.
Subunit 1a: Pinnacle Creek, Wyoming County, West Virginia
This occupied subunit includes approximately 28.6 skm (17.8 smi) of
Pinnacle Creek, a tributary to the Guyandotte River. Subunit 1a extends
from the confluence of Pinnacle Creek and Beartown Fork downstream to
the confluence of Pinnacle Creek and the Guyandotte River at Pineville,
West Virginia. The USGS topographic maps and aerial imagery (ESRI)
indicate the Pinnacle Creek watershed is mostly forested; however,
legacy, recent, and ongoing coal mining is evident in the watershed.
The riparian zone in this subunit is mostly intact, with human
development consisting of unimproved roads or trails. In the lower
portion of the subunit, some commercial and coal-related facilities are
adjacent to the stream. This subunit is located almost entirely on
private land, except for any small amount that is publicly owned in the
form of bridge crossings or road easements.
Recent surveys of Pinnacle Creek confirmed the presence of the
Guyandotte River crayfish in at least five sites in the upper portion
of the stream. The subunit contains bottom substrate consisting of
gravel with unembedded cobbles, small boulders, and isolated slab
boulders (PBF 1). Substrate embeddedness was reported to increase
markedly in downstream reaches (Loughman 2015b, p. 11). As one of only
two known Guyandotte River crayfish populations, this subunit provides
critical representation and redundancy for the species.
Subunit 1b: Clear Fork and Laurel Fork, Wyoming County, West Virginia
Subunit 1b includes approximately 38.0 skm (23.6 smi) of Clear Fork
and its primary tributary Laurel Fork. This occupied subunit extends
from the confluence of Laurel Creek and Acord Branch downstream to the
confluence of Clear Fork and the Guyandotte River. The USGS topographic
maps and aerial imagery (ESRI) indicate the Subunit 1b watershed is
mostly forested; however, coal mining activity occurs throughout the
subunit. Human development is prevalent in the riparian zone in this
subunit and consists of communities, residences, commercial facilities,
agricultural fields, roads, railroads, and other infrastructure.
Approximately 6.2 skm (3.9 smi) of Subunit 1b is within
[[Page 14683]]
the R.D. Bailey Lake State Wildlife Management Area, and the remainder
is located almost entirely on private land, except for any small amount
that is publicly owned in the form of bridge crossings or road
easements.
Surveys confirmed the Guyandotte River crayfish at six sites within
this subunit, with the stream bottom substrate generally characterized
as sand with abundant unembedded slab boulders, boulders, or boulder
clusters (Loughman 2015b, pp. 9-10). Of the two remaining Guyandotte
River crayfish populations, Subunit 1b contains the most robust
population and provides critical representation and redundancy for the
species.
Subunit 1c: Guyandotte River, Wyoming County, West Virginia
Subunit 1c includes approximately 35.8 skm (22.2 smi) of the
Guyandotte River from its confluence with Pinnacle Creek at Pineville,
West Virginia, downstream to its confluence with Clear Fork. The USGS
topographic maps and aerial imagery (ESRI) indicate the Subunit 1c
watershed is mostly forested; however, some legacy and ongoing coal
mining is evident along with natural gas development on adjacent
ridges. In the lower portion of the subunit, the riparian zone is
largely intact, with the exception of road and railroad rights-of-way.
In the middle and upper portions of this subunit, human development in
the riparian zone increases and consists of communities, residences,
commercial facilities, agricultural fields, roads, railroads, and other
infrastructure. Approximately 15.0 skm (9.3 smi) of Subunit 1c is
located within the R.D. Bailey Lake State Wildlife Management Area, and
the remainder is located almost entirely on private land, except for
any small amount that is publicly owned in the form of bridge crossings
or road easements.
Although it is considered unoccupied, this subunit contains at
least two of the PBFs essential to the conservation of the Guyandotte
River crayfish, and we are reasonably certain that it will contribute
to the conservation of the species. This subunit maintains ``optimal''
Guyandotte River crayfish habitat, including abundant unembedded slab
boulders, boulders, boulder clusters, and cobble (PBF 1) (Loughman
2015b, pp. 22-24). Along with providing suitable habitat for the
Guyandotte River crayfish and thereby providing the potential to
increase its redundancy, this subunit provides connectivity (PBF 6)
between the extant Pinnacle Creek and Clear Fork populations and
provides connectivity between these two populations and the unoccupied
critical habitat subunit at Indian Creek (Subunit 1d, described below).
Subunit 1d: Indian Creek, Wyoming County, West Virginia
Subunit 1d includes approximately 4.2 skm (2.6 smi) of Indian
Creek, a tributary to the Guyandotte River. This subunit extends from
the confluence of Indian Creek and Brier Creek at Fanrock, West
Virginia, downstream to the confluence of Indian Creek and the
Guyandotte River. The USGS topographic maps and aerial imagery (ESRI)
indicate the Subunit 1d watershed is mostly intact forest, with
evidence of legacy coal mining and natural gas drilling on the adjacent
slopes. Residences, roads, and other infrastructure occur in the narrow
riparian zone. Approximately 1.3 skm (0.8 smi) of Subunit 1d is located
within the R.D. Bailey Lake State Wildlife Management Area, and the
remainder is located almost entirely on private land, except for any
small amount that is publicly owned in the form of bridge crossings or
road easements.
Although it is considered unoccupied, this subunit contains at
least two of the PBFs essential to the conservation of the Guyandotte
River crayfish, and we are reasonably certain that it will contribute
to the conservation of the species. This subunit represents the type
location for the Guyandotte River crayfish, with specimens last
collected in 1947. The best available survey data (Loughman 2015b, p.
14) indicate this subunit maintains unembedded slab boulders and
boulders in the faster moving stream sections, with some sedimentation
observed in slow or slack water sections (PBF 1). This subunit is
located approximately midway between the extant Pinnacle Creek and
Clear Fork populations and, if recolonized, would increase the
redundancy of the Guyandotte River crayfish and contribute to
population connectedness within the species' range (PBF 6).
Subunit 1e: Huff Creek, Wyoming and Logan Counties, West Virginia
Subunit 1e includes approximately 28.0 skm (17.4 smi) of Huff
Creek, a tributary of the Guyandotte River. This subunit extends from
the confluence of Huff Creek and Straight Fork downstream to the
confluence of Huff Creek and the Guyandotte River at Huff, West
Virginia. The USGS topographic maps and aerial imagery (ESRI) indicate
the Subunit 1e watershed is mostly intact forest, with evidence of
legacy and ongoing coal mining and legacy natural gas drilling on the
adjacent slopes. Human development, in the form of residences, roads,
and other infrastructure, occurs in the narrow riparian zone throughout
this subunit. Subunit 1e is located almost entirely on private land,
except for any small amount that is publicly owned in the form of
bridge crossings or road easements.
Although it is considered unoccupied, this subunit contains at
least one of the PBFs essential to the conservation of the Guyandotte
River crayfish, and we are reasonably certain that it will contribute
to the conservation of the species. The best available survey data
(Loughman 2015b, pp. 14-15) indicate this subunit maintains unembedded
slab boulders and boulder clusters with only minimal sedimentation (PBF
1). Guyandotte River crayfish were last collected from this subunit in
1989. The R.D. Bailey Dam, constructed in 1980, prevents connectivity
between this subunit and the extant Guyandotte River crayfish
populations upstream. Successful reintroduction of the species to this
subunit would contribute to the species' redundancy and increase the
ability of the species to disperse and colonize areas of its historical
range that are isolated from existing populations by R.D. Bailey Dam.
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that any action they fund, authorize, or carry out
is not likely to jeopardize the continued existence of any endangered
species or threatened species or result in the destruction or adverse
modification of designated critical habitat of such species.
We published a final rule revising the definition of destruction or
adverse modification on August 27, 2019 (84 FR 44976). Destruction or
adverse modification means a direct or indirect alteration that
appreciably diminishes the value of critical habitat as a whole for the
conservation of a listed species. Such alterations may include, but are
not limited to, those that alter the physical or biological features
essential to the conservation of a species or that preclude or
significantly delay development of such features.
If a Federal action may affect a listed species or its critical
habitat, the responsible Federal agency (action agency) must enter into
consultation with us. Examples of actions that are subject to the
section 7 consultation process are actions on State, Tribal, local, or
private lands that require a Federal permit (such as a permit from the
U.S. Army Corps of Engineers under section 404 of the Clean Water Act
(33
[[Page 14684]]
U.S.C. 1251 et seq.) or a permit from the Service under section 10 of
the Act) or that involve some other Federal action (such as funding
from the Federal Highway Administration, Federal Aviation
Administration, or the Federal Emergency Management Agency). Federal
actions not affecting listed species or critical habitat--and actions
on State, Tribal, local, or private lands that are not federally funded
or authorized, or carried out by a Federal agency--do not require
section 7 consultation.
As a result of section 7 consultation, we document compliance with
the requirements of section 7(a)(2) through our issuance of:
(1) A concurrence letter for Federal actions that may affect, but
are not likely to adversely affect, listed species or critical habitat;
or
(2) A biological opinion for Federal actions that may affect, and
are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is
likely to jeopardize the continued existence of a listed species and/or
destroy or adversely modify critical habitat, we provide reasonable and
prudent alternatives to the project, if any are identifiable, that
would avoid the likelihood of jeopardy and/or destruction or adverse
modification of critical habitat. We define ``reasonable and prudent
alternatives'' (at 50 CFR 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 jeopardizing the continued existence of the listed species and/or
avoid the likelihood of destroying or adversely modifying critical
habitat.
Reasonable and prudent alternatives can vary from slight project
modifications to extensive redesign or relocation of the project. Costs
associated with implementing a reasonable and prudent alternative are
similarly variable.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate
consultation on previously reviewed actions. 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 ``Destruction or Adverse Modification'' Standard
The key factor related to the 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 critical habitat as a whole for the
conservation of the listed species. As discussed above, the role of
critical habitat is to support physical and 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 Service may, during a consultation under
section 7(a)(2) of the Act, find are likely to destroy or adversely
modify critical habitat include, but are not limited to:
(1) Actions that would significantly increase sediment
deposition within the stream channel. Such activities could include,
but are not limited to, excessive erosion and sedimentation from
coal mining or abandoned mine lands, oil or natural gas development,
timber harvests, unpaved forest roads, road construction, channel
alteration, off-road vehicle use, and other land-disturbing
activities in the watershed and floodplain. Sedimentation from these
activities could lead to stream bottom embeddedness that eliminates
or reduces the sheltering habitat necessary for the conservation of
these crayfish species.
(2) Actions that would significantly alter channel morphology or
geometry. Such activities could include, but are not limited to,
channelization, dredging, impoundment, road and bridge construction,
pipeline construction, and destruction of riparian vegetation. These
activities may cause changes in water flows or channel stability and
lead to increased sedimentation and stream bottom embeddedness that
eliminates or reduces the sheltering habitat necessary for the
conservation of these crayfish species.
(3) Actions that would significantly alter water chemistry or
temperature. Such activities could include, but are not limited to,
the release of chemicals, fill, biological pollutants, or heated
effluents into the surface water or connected groundwater at a point
source or by dispersed release (non-point source). These activities
could alter water conditions to levels that are beyond the
tolerances of the Big Sandy or Guyandotte River crayfish and result
in direct or cumulative adverse effects to individual crayfish.
Exemptions
Application of Section 4(a)(3) of the Act
Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i))
provides that: ``The Secretary shall not designate as critical habitat
any lands or other geographic areas owned or controlled by the
Department of Defense, or designated for its use, that are subject to
an integrated natural resources management plan [INRMP] prepared under
section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary
determines in writing that such plan provides a benefit to the species
for which critical habitat is proposed for designation.'' There are no
Department of Defense lands with a completed INRMP within the final
critical habitat designation.
Consideration of Impacts Under Section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that the Secretary shall
designate and make revisions to critical habitat on the basis of the
best available scientific data after taking into consideration the
economic impact, national security impact, and any other relevant
impact of specifying any particular area as critical habitat. The
Secretary may exclude an area from critical habitat if 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. On December 18, 2020, we published a final rule in the
Federal Register (85 FR 82376) revising portions of our regulations
pertaining to exclusions of critical habitat. These final regulations
[[Page 14685]]
became effective on January 19, 2021, and apply to critical habitat
rules for which a proposed rule was published after January 19, 2021.
Consequently, these new regulations do not apply to this final rule.
We describe below the process that we undertook for taking into
consideration each category of impacts and our analyses of the relevant
impacts.
Consideration of Economic Impacts
Section 4(b)(2) of the Act and its implementing regulations require
that we consider the economic impact that may result from a designation
of critical habitat. To assess the probable economic impacts of a
designation, we must first evaluate specific land uses or activities
and projects that may occur in the area of the critical habitat. We
then must evaluate the impacts that a specific critical habitat
designation may have on restricting or modifying specific land uses or
activities for the benefit of the species and its habitat within the
areas proposed. We then identify which conservation efforts may be the
result of the species being listed under the Act versus those
attributed solely to the designation of critical habitat for this
particular species. The probable economic impact of a proposed critical
habitat designation is analyzed by comparing scenarios both ``with
critical habitat'' and ``without critical habitat.''
The ``without critical habitat'' scenario represents the baseline
for the analysis, which includes the existing regulatory and
socioeconomic burden imposed on landowners, managers, or other resource
users potentially affected by the designation of critical habitat
(e.g., under the Federal listing as well as other Federal, State, and
local regulations). The baseline, therefore, represents the costs of
all efforts attributable to the listing of the species under the Act
(i.e., conservation of the species and its habitat incurred regardless
of whether critical habitat is designated). The ``with critical
habitat'' scenario describes the incremental impacts associated
specifically with the designation of critical habitat for the species.
The incremental conservation efforts and associated impacts would not
be expected without the designation of critical habitat for the
species. In other words, the incremental costs are those attributable
solely to the designation of critical habitat, above and beyond the
baseline costs. These are the costs we use when evaluating the benefits
of inclusion and exclusion of particular areas from the final
designation of critical habitat should we choose to conduct a
discretionary 4(b)(2) exclusion analysis.
For this particular designation, we developed an incremental
effects memorandum (IEM) considering the probable incremental economic
impacts that may result from this designation of critical habitat. The
information contained in our IEM was then used to develop a screening
analysis of the probable effects of the designation of critical habitat
for the Big Sandy and Guyandotte River crayfishes (IEc 2019, entire).
We began by conducting a screening analysis of the proposed designation
of critical habitat in order to focus our analysis on the key factors
that are likely to result in incremental economic impacts.
The purpose of the screening analysis is to filter out particular
geographic areas of critical habitat that are already subject to such
protections and are, therefore, unlikely to incur incremental economic
impacts. In particular, the screening analysis considers baseline costs
(i.e., absent critical habitat designation) and includes probable
economic impacts where land and water use may be subject to
conservation plans, land management plans, best management practices,
or regulations that protect the habitat area as a result of the Federal
listing status of the species. Ultimately, the screening analysis
allows us to focus on evaluating the specific areas or sectors that may
incur probable incremental economic impacts as a result of the
designation. If there are any unoccupied units in the proposed critical
habitat designation, the screening analysis assesses whether any
additional management or conservation efforts may incur incremental
economic impacts.
This screening analysis combined with the information contained in
our IEM are what we consider our draft economic analysis (DEA) of the
proposed critical habitat designation for the Big Sandy and Guyandotte
River crayfishes and are summarized in the narrative below. The IEM
dated August 14, 2019, and the draft screening analysis, dated October
7, 2019, was made available for public review from January 28, 2020,
through March 30, 2020 (85 FR 5072). We received public comments on the
DEA. A copy of the DEA may be obtained by contacting the West Virginia
Field Office (see ADDRESSES) or by downloading from the internet at
<a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Executive Orders (E.O.s) 12866 and 13563 direct Federal agencies to
assess the costs and benefits of available regulatory alternatives in
quantitative (to the extent feasible) and qualitative terms. Consistent
with the E.O. regulatory analysis requirements, our effects analysis
under the Act may take into consideration impacts to both directly and
indirectly affected entities, where practicable and reasonable. If
sufficient data are available, we assess to the extent practicable the
probable impacts to both directly and indirectly affected entities.
As part of our screening analysis, we considered the types of
economic activities that are likely to occur within the areas likely
affected by the critical habitat designation. In our evaluation of the
probable incremental economic impacts that may result from the
designation of critical habitat for the Big Sandy and Guyandotte River
crayfishes, first we identified, in the IEM dated August 14, 2019
(Service 2019, entire), probable incremental economic impacts
associated with the following categories of activities: (1) Watershed
and stream restoration activities; (2) construction of recreation
improvements and management of recreation activities; (3) energy
extraction (coal, oil, and gas) and maintenance/management of
facilities (e.g., abandoned mine lands, active mines, pipelines); (4)
road and bridge maintenance; (5) pesticide use; (6) timber harvest; (7)
agriculture; and (8) instream emergency response activities.
We considered each industry or category individually. Additionally,
we considered whether their activities have any Federal involvement.
Critical habitat designation generally will not affect activities that
do not have any Federal involvement; under the Act, designation of
critical habitat only affects activities conducted, funded, permitted,
or authorized by Federal agencies. In areas where the Big Sandy and
Guyandotte River crayfishes are present, Federal agencies already are
required to consult with the Service under section 7 of the Act on
activities they fund, permit, or implement that may affect the species.
When this final critical habitat designation rule becomes effective,
consultations to avoid the destruction or adverse modification of
critical habitat would be incorporated into the existing consultation
process.
In our IEM, we attempted to clarify the distinction between the
effects that will result from the species being listed and those
attributable to the critical habitat designation (i.e., difference
between the jeopardy and adverse modification standards) for the Big
Sandy or Guyandotte River crayfishes' critical habitat. Because all of
the units/subunits we are designating as critical habitat for the Big
Sandy crayfish are occupied, we do not expect that the critical habitat
designation will result in any additional consultations. The
[[Page 14686]]
conservation recommendations provided to address impacts to the
occupied critical habitat will be the same as those recommended to
address impacts to the species because the habitat tolerances of the
Big Sandy crayfish are inextricably linked to the health, growth, and
reproduction of the crayfish, which are present year-round in their
occupied streams. Furthermore, because the critical habitat and the Big
Sandy crayfish's known range are identical, the results of consultation
under adverse modification are not likely to differ from the results of
consultation under jeopardy. In the event of an adverse modification
determination, we expect that reasonable and prudent alternatives to
avoid jeopardy to the species would also avoid adverse modification of
the critical habitat. The only incremental costs of critical habitat
designation that we anticipate are the small administrative costs
required during section 7 consultation to document effects on the
physical and biological features of the critical habitat and whether
the action appreciably diminishes the value of critical habitat as a
whole for the conservation of the listed species.
The above conclusion is also accurate for the occupied Guyandotte
River crayfish subunits (1a and 1b). For the unoccupied Guyandotte
River crayfish subunits (1c, 1d, and 1e), we anticipate project
modifications may result in the future from consultations on one
planned surface mining project as well as one existing surface mining
project. Examples of project modifications may include, but are not
limited to, sediment monitoring, chemical testing, macroinvertebrate
monitoring, installing box culverts at all stream crossings,
collocating valley fills or constructing regarded backstacks, and
maintaining a spill response plan (IEc 2019, p. 15). Informed by
discussions with a mining company operating in Guyandotte River
crayfish occupied habitat, the cost estimates associated with such
project modifications were projected to be relatively minor, ranging
from $30,000 to $60,000 in the year of implementation.
We received several comments during the public comment period
stating that we underestimated the economic impact of the proposed
designation, so we revised the screening analysis (IEc 2020, p. 2). We
worked with IEc and Federal and State agencies to better understand the
likely effects of critical habitat designation. The final screening
analysis examines potential project modifications for consultations in
unoccupied critical habitat in more detail (i.e., cleaning out sediment
structures [e.g., ponds] at 40% of design capacity instead of the 60%
of design capacity that is required under existing regulations and
installing continuous turbidity loggers, isolating mine discharge with
upstream and downstream Biological Assessment Station [BAS] sites,
statistically monitoring sediment within crayfish streams and receiving
streams, sediment transport modeling) (IEc 2020, p. 16). Insufficient
information is available to quantify the costs of sediment cleanout;
therefore, annualized project modification costs were qualitatively
discussed and total costs were estimated to be on the order of $350,000
(IEc 2020, p. 21). The administrative costs are discussed below. The
final screening analysis states that critical habitat designation for
the Big Sandy and Guyandotte River crayfish is unlikely to generate
costs exceeding $100 million in a single year and, therefore, would not
be significant as defined by Executive Order 13211 (below).
The critical habitat designation for the Big Sandy crayfish totals
approximately 582 skm (362 smi), all of which is currently occupied by
the species. The critical habitat designation for the Guyandotte River
crayfish totals approximately 135 skm (84 smi), of which approximately
49% is currently occupied by the species.
As stated in the final screening analysis (IEc 2020, p. 24),
critical habitat designation for the Big Sandy and Guyandotte River
crayfish would be unlikely to generate costs exceeding $100 million in
a single year, and therefore would not be significant. The direct
section 7 costs would most likely be limited to additional
administrative effort to consider adverse modification, as well as the
project modifications discussed above, in unoccupied habitat for the
Guyandotte River crayfish. All of the critical habitat units/subunits
for the Big Sandy crayfish and two subunits of critical habitat for the
Guyandotte River crayfish are occupied year-round by these species.
Within occupied habitat, regardless of whether critical habitat is
designated, all projects with a Federal nexus are already subject to
section 7 requirements due to the listing of the species. The
administrative time required to address critical habitat in these
consultations is minor. The results of consultation for adverse
modification are not likely to differ from the results of consultation
for jeopardy. Three subunits of critical habitat for the Guyandotte
River crayfish are currently unoccupied by the species. Section 7
consultations for all projects with a Federal nexus in this unoccupied
habitat would be fully attributable to the critical habitat
designation. We anticipate incremental project modifications resulting
from these consultations, including for existing and planned surface
mines.
Based on the rate of historical consultations in occupied units/
subunits, these two species are likely to generate a total of
approximately 285 consultations and technical assistances in a given
year; this includes multiple project types including roads and
transportation projects, pipeline and utility crossings, and other
project types as described in the IEM. The total additional
administrative cost of addressing adverse modification in these new and
existing consultations is not expected to exceed $870,000, depending on
the range of cost estimates for unoccupied critical habitat (see
below), in a given year. This value likely overestimates the cost
because technical assistance consultations, which cost substantially
less, cannot be separated from informal consultations in the
consultation information provided to the economists. The cost of
project modifications resulting from currently identified existing and
future activities in unoccupied habitat for the Guyandotte River
crayfish is expected to be about $350,000 in a given year.
Further, the designation of critical habitat is not expected to
trigger additional requirements under State or local regulations.
Additionally, because the critical habitat is located in stretches of
river, rather than on land, impacts on property values resulting from
the perception of additional regulation are unlikely. Project
modifications in unoccupied habitat for the Guyandotte River crayfish
have the potential to increase conservation in these areas, resulting
in an incremental benefit. Data limitations preclude IEc's ability to
monetize these benefits; however, these benefits are unlikely to exceed
$100 million in a given year.
The units with the highest potential costs resulting from the
designation of critical habitat are Unit 2 for the Big Sandy crayfish
and the unoccupied subunits of Unit 1 for the Guyandotte River
crayfish. Because Unit 1 for the Guyandotte River crayfish (in West
Virginia) includes unoccupied stream miles, requests for project
modifications would be likely for existing and planned projects in this
area. Unit 2 for the Big Sandy crayfish (Russell Fork, spanning both
Kentucky and Virginia) contains the most stream miles with adjacent
Federal land ownership and, therefore, a higher probability of
intersecting with projects or activities with a Federal nexus that
require consultation.
[[Page 14687]]
We have considered additional economic impact information we
received during the public comment period, and determined that no areas
may be excluded from the final critical habitat designation under
section 4(b)(2) of the Act and our implementing regulations at 50 CFR
424.19.
Exclusions
Exclusions Based on Economic Impacts
The first sentence of section 4(b)(2) of the Act requires the
Service to consider the economic impacts (as well as the impacts on
national security and any other relevant impacts) of designating
critical habitat. In addition, economic impacts may, for some
particular areas, play an important role in the discretionary section
4(b)(2) exclusion analysis under the second sentence of section
4(b)(2). In both contexts, the Service has considered the probable
incremental economic impacts of the designation. When the Service
undertakes a discretionary section 4(b)(2) exclusion analysis with
respect to a particular area, we weigh the economic benefits of
exclusion (and any other benefits of exclusion) against any benefits of
inclusion (primarily the conservation value of designating the area).
The conservation value may be influenced by the level of effort needed
to manage degraded habitat to the point where it could support the
listed species.
The Service uses its discretion in determining how to weigh
probable incremental economic impacts against conservation value. The
nature of the probable incremental economic impacts, and not
necessarily a particular threshold level, triggers considerations of
exclusions based on probable incremental economic impacts. For example,
if an economic analysis indicates high probable incremental impacts of
designating a particular critical habitat unit of lower conservation
value (relative to the remainder of the designation), the Service may
consider exclusion of that particular unit.
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 Big Sandy and Guyandotte River crayfishes based on
economic impacts.
Exclusions Based on Impacts on National Security and Homeland Security
Under section 4(b)(2) of the Act, we consider whether there are
lands owned or managed by the Department of Defense where a national
security impact might exist. We have determined that the lands within
the final designation of critical habitat for the Big Sandy and
Guyandotte River crayfishes are not owned or managed by the Department
of Defense or Department of Homeland Security, and, therefore, we
anticipate no impact on national security. We did not receive any
requests from Federal agencies responsible for national security or
homeland security requesting exclusions from Big Sandy crayfish or
Guyandotte River crayfish critical habitat designation. 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, the Service considers any other
relevant impacts of the critical habitat designation, in addition to
economic impacts and impacts on national security as discussed above.
The Service considers a number of factors including whether there are
permitted conservation plans covering the species in the area such as
HCPs, safe harbor agreements, or candidate conservation agreements with
assurances, or whether there are nonpermitted conservation agreements
and partnerships that would be encouraged by designation of, or
exclusion from, critical habitat. In addition, we look at the existence
of Tribal conservation plans and partnerships and consider the
government-to-government relationship of the United States with Tribal
entities. We also consider any social impacts that might occur because
of the designation.
In preparing this designation, we have determined that there are
currently no HCPs or other management plans for the Big Sandy or
Guyandotte River crayfishes, and the designation does not include any
Tribal lands or trust resources. We anticipate no impact on Tribal
lands, partnerships, or HCPs from this critical habitat designation.
As explained above, there are no Department of Defense or national
security impacts or Tribal trust impacts associated with the
designation. Therefore, the Secretary is not exercising her discretion
to exclude any areas from this final designation based on other
relevant impacts.
Required Determinations
Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs 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
[[Page 14688]]
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 (13 CFR 121.201). To determine whether
potential economic impacts to these small entities are significant, we
considered the types of activities that might trigger regulatory
impacts under this designation as well as types of project
modifications that may result. In general, the term ``significant
economic impact'' is meant to apply to a typical small business firm's
business operations.
Under the RFA, as amended, and as understood in light of recent
court decisions, Federal agencies are required to evaluate the
potential incremental impacts of rulemaking on those entities directly
regulated by the rulemaking itself; in other words, the RFA does not
require agencies to evaluate the potential impacts to indirectly
regulated entities. The regulatory mechanism through which critical
habitat protections are realized is section 7 of the Act, which
requires Federal agencies, in consultation with the Service, to ensure
that any action authorized, funded, or carried out by the Agency is not
likely to destroy or adversely modify critical habitat. Therefore,
under section 7, only Federal action agencies are directly subject to
the specific regulatory requirement (avoiding destruction and adverse
modification) imposed by critical habitat designation. Consequently, it
is our position that only Federal action agencies will 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 are 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 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. Coal mining, pipeline and utility crossings, and oil
and gas exploration activities regularly occur within the range of the
Big Sandy and Guyandotte River crayfishes and their critical habitat
units/subunits (Service 2019, pp. 7-8). These are routine activities
that the Service consults on with the Office of Surface Mining, the
Federal Energy Regulatory Commission, and the U.S. Army Corps of
Engineers under section 7 of the Act. In our screening analysis, we do
not find that the designation of this critical habitat would
significantly affect energy supplies, distribution, or use. As
discussed in the revised screening analysis, the costs associated with
consultations related to occupied critical habitat would be largely
administrative in nature and the costs associated with projects in
unoccupied critical habitat are estimated not to exceed $350,000 per
year (IEc 2020, p. 21). The full cost of the entire designation is not
expected to exceed $1,000,000 per year, which does not reach the
significant threshold of $100 million per year. Therefore, this action
is not a significant energy action, and no Statement of Energy Effects
is required.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following findings:
(1) This rule will not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute, or regulation
that would impose an enforceable duty upon State, local, or Tribal
governments, or the private sector, and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or Tribal governments'' with two
exceptions. It excludes ``a condition of Federal assistance.'' It also
excludes ``a duty arising from participation in a voluntary Federal
program,'' unless the regulation ``relates to a then-existing Federal
program under which $500,000,000 or more is provided annually to State,
local, and Tribal governments under entitlement authority,'' if the
provision would ``increase the stringency of conditions of assistance''
or ``place caps upon, or otherwise decrease, the Federal Government's
responsibility to provide funding,'' and the State, local, or Tribal
governments ``lack authority'' to adjust accordingly. At the time of
enactment, these entitlement programs were: Medicaid; Aid to Families
with Dependent Children work programs; Child Nutrition; Food Stamps;
Social Services Block Grants; Vocational Rehabilitation State Grants;
Foster Care, Adoption Assistance, and Independent Living; Family
Support Welfare Services; and Child Support Enforcement. ``Federal
private sector mandate'' includes a regulation that ``would impose an
enforceable duty upon the private sector, except (i) a condition of
Federal assistance or (ii) a duty arising from participation in a
voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal Government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not destroy or adversely modify critical
habitat under section 7. While non-Federal entities that receive
Federal funding, assistance, or permits, or that otherwise require
approval or authorization from a Federal agency for an action, may be
indirectly impacted by the designation of critical habitat, the legally
binding duty to avoid destruction or adverse modification of critical
habitat rests squarely on the Federal agency. Furthermore, to the
extent that non-Federal entities are indirectly impacted because they
receive Federal assistance or participate in a voluntary Federal aid
program, the Unfunded Mandates Reform Act would not apply, nor would
critical habitat shift the costs of the large entitlement programs
listed above onto State governments.
(2) We do not believe that this rule would significantly or
uniquely affect small governments because the waters being designated
for critical habitat are owned by the States of Kentucky, Virginia, and
West Virginia. These government entities do not fit the definition of
``small government jurisdiction.'' Therefore, a Small Government Agency
Plan is not required.
[[Page 14689]]
Takings--Executive Order 12630
In accordance with E.O. 12630 (Government Actions and Interference
with Constitutionally Protected Private Property Rights), we have
analyzed the potential takings implications of designating critical
habitat for the Big Sandy and Guyandotte River crayfishes in a takings
implications assessment. The Act does not authorize the Service to
regulate private actions on private lands or confiscate private
property as a result of critical habitat designation. Designation of
critical habitat does not affect land ownership, or establish any
closures, or restrictions on use of or access to the designated areas.
Furthermore, the designation of critical habitat does not affect
landowner actions that do not require Federal funding or permits, nor
does it preclude development of habitat conservation programs or
issuance of incidental take permits to permit actions that do require
Federal funding or permits to go forward. However, Federal agencies are
prohibited from carrying out, funding, or authorizing actions that
would destroy or adversely modify critical habitat. A takings
implications assessment has been completed and concludes that this
designation of critical habitat for the Big Sandy and Guyandotte River
crayfishes does not pose significant takings implications for lands
within or affected by the designation.
Federalism--Executive Order 13132
In accordance with E.O. 13132 (Federalism), this rule does not have
significant Federalism effects. A federalism summary impact statement
is not required. In keeping with Department of the Interior and
Department of Commerce policy, we requested information from, and
coordinated development of this critical habitat designation with,
appropriate State resource agencies in Kentucky, Virginia, and West
Virginia. We received comments from the West Virginia DNR and have
addressed them in the Summary of Comments and Recommendations section
of the preamble. From a federalism perspective, the designation of
critical habitat directly affects only the responsibilities of Federal
agencies. The Act imposes no other duties with respect to critical
habitat, either for States and local governments, or for anyone else.
As a result, the rule does not have substantial direct effects either
on the States, or on the relationship between the national government
and the States, or on the distribution of powers and responsibilities
among the various levels of government. The designation may have some
benefit to these governments because the areas that contain the
features essential to the conservation of the species are more clearly
defined, and the physical and biological features of the habitat
necessary to the conservation of the species are specifically
identified. This information does not alter where and what federally
sponsored activities may occur. However, it may assist these local
governments in long-range planning because these local governments no
longer have to wait for case-by-case section 7 consultations to occur.
Where State and local governments require approval or authorization
from a Federal agency for actions that may affect critical habitat,
consultation under section 7(a)(2) would be required. While non-Federal
entities that receive Federal funding, assistance, or permits, or that
otherwise require approval or authorization from a Federal agency for
an action, may be indirectly impacted by the designation of critical
habitat, the legally binding duty to avoid destruction or adverse
modification of critical habitat rests squarely on the Federal agency.
Civil Justice Reform--Executive Order 12988
In accordance with Executive Order 12988 (Civil Justice Reform),
the Office of the Solicitor has determined that the rule does not
unduly burden the judicial system and that it meets the requirements of
sections 3(a) and 3(b)(2) of the Order. We are designating critical
habitat in accordance with the provisions of the Act. To assist the
public in understanding the habitat needs of the species, the rule
identifies the elements of physical or biological features essential to
the conservation of the Big Sandy and Guyandotte River crayfishes. 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 information collection requirements, and
a submission to the Office of Management and Budget (OMB) under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) is not
required. We may not conduct or sponsor and you are not required to
respond to a collection of information unless it displays a currently
valid OMB control number.
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
It is our position that, outside the jurisdiction of the U.S. Court
of Appeals for the Tenth Circuit, we do not need to prepare
environmental analyses pursuant to the National Environmental Policy
Act (NEPA; 42 U.S.C. 4321 et seq.) in connection with designating
critical habitat under the Act. We published a notice outlining our
reasons for this determination in the Federal Register on October 25,
1983 (48 FR 49244). This position was upheld by the U.S. Court of
Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495
(9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)).
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 determined that there are no Tribal
lands that were occupied by the Big Sandy or Guyandotte River
crayfishes at the time of listing that contain the features essential
for conservation of the species, and no Tribal lands unoccupied by the
Big Sandy or Guyandotte River crayfishes that are essential for the
conservation of the species. Therefore, we are not designating critical
habitat for the Big Sandy or Guyandotte River crayfishes on Tribal
lands.
References Cited
A complete list of all references cited in this rulemaking is
available on the internet at <a href="https://www.regulations.gov">https://www.regulations.gov</a> and upon
request from the West Virginia Ecological Services Field Office (see
For Further Information Contact).
[[Page 14690]]
Authors
The primary authors of this rulemaking are the staff members of the
North Atlantic--Appalachian Regional Office, Kentucky Ecological
Services Field Office, Southwestern Virginia Field Office, and the West
Virginia 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 revising the entries for ``Crayfish, Big
Sandy'' and ``Crayfish, Guyandotte River'' under ``Crustaceans'' in the
List of Endangered and Threatened Wildlife to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
----------------------------------------------------------------------------------------------------------------
Listing citations
Common name Scientific name Where listed Status and applicable
rules
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Crustaceans
* * * * * * *
Crayfish, Big Sandy.............. Cambarus callainus. Wherever found..... T 81 FR 20450, 4/7/
2016; 50 CFR
17.95(h).\CH\
* * * * * * *
Crayfish, Guyandotte River....... Cambarus veteranus. Wherever found..... E 81 FR 20450, 4/7/
2016;
50 CFR
17.95(h).\CH\
* * * * * * *
----------------------------------------------------------------------------------------------------------------
0
3. Amend Sec. 17.95(h) by adding entries for ``Big Sandy Crayfish
(Cambarus callainus)'' and `` Guyandotte River Crayfish (Cambarus
veteranus)'' after the entry for `` Pecos amphipod (Gammarus pecos)''
to read as follows:
Sec. 17.95 Critical habitat--fish and wildlife.
* * * * *
(h) Crustaceans.
* * * * *
Big Sandy Crayfish (Cambarus callainus)
(1) Critical habitat units are depicted for Martin, Pike, Johnson,
and Floyd Counties, Kentucky; Buchanan, Dickenson, and Wise Counties,
Virginia; and McDowell, Mingo, and Wayne Counties, West Virginia, on
the maps in this entry.
(2) Within these areas, the physical or biological features
essential to the conservation of the Big Sandy crayfish consist of the
following components:
(i) Fast-flowing stream reaches with unembedded slab boulders,
cobbles, or isolated boulder clusters within an unobstructed stream
continuum (i.e., riffle, run, pool complexes) of permanent, moderate-
to large-sized (generally third order and larger) streams and rivers
(up to the ordinary high water mark as defined at 33 CFR 329.11).
(ii) Streams and rivers with natural variations in flow and
seasonal flooding sufficient to effectively transport sediment and
prevent substrate embeddedness.
(iii) Water quality characterized by seasonally moderated
temperatures and physical and chemical parameters (e.g., pH,
conductivity, dissolved oxygen) sufficient for the normal behavior,
growth, reproduction, and viability of all life stages of the species.
(iv) An adequate food base, indicated by a healthy aquatic
community structure including native benthic macroinvertebrates and
fishes, and plant matter (e.g., leaf litter, algae, detritus).
(v) Aquatic habitats protected from riparian and instream
activities that degrade the physical and biological features described
in paragraphs (2)(i) through (iv) of this entry or cause physical
(e.g., crushing) injury or death to individual Big Sandy crayfish.
(vi) An interconnected network of streams and rivers that have the
physical and biological features described in paragraphs (2)(i) through
(iv) of this entry and that allow for the movement of individual
crayfish in response to environmental, physiological, or behavioral
drivers. The scale of the interconnected stream network should be
sufficient to allow for gene flow within and among watersheds.
(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
April 14, 2022.
(4) Data layers defining map units were created on a base of U.S.
Geological Survey digital ortho-photo quarter-quadrangles, and critical
habitat units were then mapped using Universal Transverse Mercator
(UTM) Zone 15N coordinates. ESRI's ArcGIS 10.0 software was used to
determine latitude and longitude coordinates using decimal degrees. The
USA Topo ESRI online basemap service was referenced to identify
features (like roads and streams) used to delineate the upstream and
downstream extents of critical habitat units. The maps in this entry,
as modified by any accompanying regulatory t
[…truncated; see source link]Indexed from Federal Register on March 15, 2022.
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.