Proposed Rule2022-17743
Endangered and Threatened Wildlife and Plants; Endangered Species Status for Magnificent Ramshorn and Designation of Critical Habitat
Primary source
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Published
August 18, 2022
Issuing agencies
Interior DepartmentFish and Wildlife Service
Abstract
We, the U.S. Fish and Wildlife Service (Service), propose to list magnificent ramshorn (Planorbella magnifica), a freshwater snail species from southeastern North Carolina, as an endangered species and to designate critical habitat for the species under the Endangered Species Act of 1973, as amended (Act). In total, approximately 739 acres (299 hectares) of two ponds in Brunswick County, North Carolina, fall within the boundaries of the proposed critical habitat designation. We also announce the availability of a draft economic analysis (DEA) of the proposed designation of critical habitat for magnificent ramshorn. In addition, this document serves as our 12-month finding on a petition to list magnificent ramshorn. If we finalize this rule as proposed, it would extend the Act's protections to this species and its designated critical habitat.
Full Text
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[Federal Register Volume 87, Number 159 (Thursday, August 18, 2022)]
[Proposed Rules]
[Pages 50804-50824]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-17743]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R4-ES-2022-0070; FF09E21000 FXES1111090FEDR 223]
RIN 1018-BE86
Endangered and Threatened Wildlife and Plants; Endangered Species
Status for Magnificent Ramshorn and Designation of Critical Habitat
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
list magnificent ramshorn (Planorbella magnifica), a freshwater snail
species from southeastern North Carolina, as an endangered species and
to designate critical habitat for the species under the Endangered
Species Act of 1973, as amended (Act). In total, approximately 739
acres (299 hectares) of two ponds in Brunswick County, North Carolina,
fall within the boundaries of the proposed critical habitat
designation. We also announce the availability of a draft economic
analysis (DEA) of the proposed designation of critical habitat for
magnificent ramshorn. In addition, this document serves as our 12-month
finding on a petition to list magnificent ramshorn. If we finalize this
rule as proposed, it would extend the Act's protections to this species
and its designated critical habitat.
DATES: We will accept comments received or postmarked on or before
October 17, 2022. Comments submitted electronically using the Federal
eRulemaking Portal (see ADDRESSES, below) must be received by 11:59
p.m. eastern time on the closing date. We must receive requests for
public hearings, in writing, at the address shown in FOR FURTHER
INFORMATION CONTACT by October 3, 2022.
ADDRESSES: Written comments: You may submit comments by one of the
following methods:
(1) Electronically: Go to the Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>. In the Search box, enter FWS-R4-ES-2022-0070,
which is the docket number for this rulemaking. Then, click on the
Search button. On the resulting page, in the panel on the left side of
the screen, under the Document Type heading, check the Proposed Rule
box to locate this document. You may submit a comment by clicking on
``Comment.''
(2) By hard copy: Submit by U.S. mail to: Public Comments
Processing, Attn: FWS-R4-ES-2022-0070, U.S. Fish and Wildlife Service,
MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
We request that you send comments only by the methods described
above. We will post all comments on <a href="https://www.regulations.gov">https://www.regulations.gov</a>. This
generally means that we will post any personal information you provide
us (see Information Requested, below, for more information).
Availability of supporting materials: For the proposed critical
habitat designation, the coordinates or plot points or both from which
the maps are generated are included in the decision file, are available
at <a href="https://www.regulations.gov">https://www.regulations.gov</a> under Docket No. FWS-R4-ES-2022-0070,
and on the Service's website at <a href="https://www.fws.gov/office/eastern-north-carolina/library">https://www.fws.gov/office/eastern-north-carolina/library</a>. Any additional tools or supporting information
that we may develop for the critical habitat designation will also be
available in the preamble of this proposed rule or at <a href="https://www.regulations.gov">https://www.regulations.gov</a>. The species status assessment (SSA) report is also
available in the docket at <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
FOR FURTHER INFORMATION CONTACT: Pete Benjamin, Field Supervisor, U.S.
Fish and Wildlife Service, Raleigh Ecological Services Field Office,
P.O. Box 33726, Raleigh, NC 27636-3726; telephone 919-856-4520.
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. Under the Act, a species warrants
listing if it meets the definition of an endangered species (in danger
of extinction throughout all or a significant portion of its range) or
a threatened species (likely to become an endangered species within the
foreseeable future throughout all or a significant portion of its
range). If we determine that a species warrants listing, we must list
the species promptly and designate the species' critical habitat to the
maximum extent prudent and determinable. We have determined that
magnificent ramshorn meets the definition of an endangered species;
therefore, we are proposing to list it as such and proposing
designation of its critical habitat. Both listing a species as an
endangered or threatened species and making a critical habitat
determination can be completed only by issuing a rule through the
Administrative Procedure Act rulemaking process.
What this document does. We propose to list magnificent ramshorn as
an endangered species under the Act, and we propose to designate
critical habitat for the species.
The basis for our action. Under the Act, we may determine that a
species is an endangered or threatened species because of any of five
factors: (A) The present or threatened destruction, modification, or
curtailment of its habitat or range; (B) overutilization for
commercial, recreational, scientific, or educational purposes; (C)
disease or predation; (D) the inadequacy of existing regulatory
mechanisms; or (E) other natural or manmade factors affecting its
continued existence. We have determined the species may no longer exist
in the wild, as it has not been found in surveys over the past 40 years
at the only known historical locations. While likely locally extirpated
from the wild, it does persist in captive populations. The most
significant stressor that likely led to the extirpation of magnificent
ramshorn in
[[Page 50805]]
the wild is the loss of suitable lentic (still or slow-flowing) habitat
(Factor A) that individuals and populations need to complete their life
history. The primary causes of historical habitat loss are related to
anthropogenic activities coupled with extreme weather events that have
altered water quality (Factor E) such that the breeding, feeding,
sheltering, and dispersal needs of the snails cannot be met. There are
no existing regulatory mechanisms that ameliorate or reduce these
threats such that the species does not warrant listing (Factor D).
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.
Information Requested
We intend that any final action resulting from this proposed rule
will be based on the best scientific and commercial data available and
be as accurate and as effective as possible. Therefore, we request
comments or information from other concerned governmental agencies,
Native American Tribes, the scientific community, industry, or any
other interested parties concerning this proposed rule.
We particularly seek comments concerning:
(1) The species' biology, range, and population trends, including:
(a) Biological or ecological requirements of the species, including
habitat requirements for feeding, breeding, and sheltering;
(b) Genetics and taxonomy;
(c) Historical range, including distribution patterns;
(d) Historical population levels, and current and projected trends;
and
(e) Past and ongoing conservation measures for the species, its
habitat, or both.
(2) Factors that may affect the continued existence of the species,
which may include habitat modification or destruction, overutilization,
disease, predation, the inadequacy of existing regulatory mechanisms,
or other natural or manmade factors.
(3) Biological, commercial trade, or other relevant data concerning
any threats (or lack thereof) to this species and existing regulations
that may be addressing those threats.
(4) Additional information concerning the historical and current
status, range, distribution, and population size of this species,
including the locations of any additional populations of this species.
(5) The reasons why we should or should not designate habitat as
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et
seq.), including information regarding the following factors that the
regulations identify as reasons why designation of critical habitat may
be not prudent:
(a) The species is threatened by taking or other human activity and
identification of critical habitat can be expected to increase the
degree of such threat to the species; or
(b) Such designation of critical habitat would not be beneficial to
the species. In determining whether a designation would not be
beneficial, the factors the Services may consider include but are not
limited to: Whether the present or threatened destruction,
modification, or curtailment of a species' habitat or range is not a
threat to the species, or whether any areas meet the definition of
``critical habitat.''
(6) Specific information on:
(a) The amount and distribution of magnificent ramshorn habitat;
(b) Any additional areas occurring within the range of the species
(New Hanover and Brunswick Counties in southeastern North Carolina)
that should be included in the designation because they (1) are
occupied at the time of listing and contain the physical or biological
features that are essential to the conservation of the species and that
may require special management considerations, or (2) are unoccupied at
the time of listing and are essential for the conservation of the
species; and
(c) Special management considerations or protection that may be
needed in critical habitat areas we are proposing, including managing
for the potential effects of climate change.
(7) Land use designations and current or planned activities in the
subject areas and their possible impacts on proposed critical habitat.
(8) Any probable economic, national security, or other relevant
impacts of designating any area that may be included in the final
designation, and the related benefits of including or excluding
specific areas.
(9) Information on the extent to which the description of probable
economic impacts in the draft economic analysis is a reasonable
estimate of the likely economic impacts and any additional information
regarding probable economic impacts that we should consider.
(10) Whether any specific areas we are proposing for critical
habitat designation should be considered for exclusion under section
4(b)(2) of the Act, and whether the benefits of potentially excluding
any specific area outweigh the benefits of including that area under
section 4(b)(2) of the Act. If you think we should exclude any
additional areas, please provide information supporting a benefit of
exclusion.
(11) Whether we could improve or modify our approach to designating
critical habitat in any way to provide for greater public participation
and understanding, or to better accommodate public concerns and
comments.
Please include sufficient information with your submission (such as
scientific journal articles or other publications) to allow us to
verify any scientific or commercial information you include.
Please note that submissions merely stating support for, or
opposition to, the action under consideration without providing
supporting information, although noted, do not provide substantial
information necessary to support a determination. Section 4(b)(1)(A) of
the Act directs that determinations as to whether any species is an
endangered or a threatened species must be made solely on the basis of
the best scientific and commercial data available, and section 4(b)(2)
of the Act directs that the Secretary shall designate critical habitat
on the basis of the best scientific data available.
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in ADDRESSES. We request that you
send comments only by the methods described in ADDRESSES.
If you submit information via <a href="https://www.regulations.gov">https://www.regulations.gov</a>, your
entire submission--including any personal identifying information--will
be posted on the website. If your submission is made via a hardcopy
that includes personal identifying information, you may request at the
top of your document
[[Page 50806]]
that we withhold this information from public review. However, we
cannot guarantee that we will be able to do so. We will post all
hardcopy submissions on <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection on <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Because we will consider all comments and information received
during the comment period, our final determinations may differ from
this proposal. Based on the new information we receive (and any
comments on that new information), we may conclude that the species is
threatened instead of endangered, or we may conclude that the species
does not warrant listing as either an endangered species or a
threatened species. For critical habitat, our final designation may not
include all areas proposed, may include some additional areas that meet
the definition of critical habitat, or may exclude some areas if we
find the benefits of exclusion outweigh the benefits of inclusion.
Public Hearing
Section 4(b)(5) of the Act provides for a public hearing on this
proposal, if requested. Requests must be received by the date specified
in DATES. Such requests must be sent to the address shown in FOR
FURTHER INFORMATION CONTACT. We will schedule a public hearing on this
proposal, if requested, and announce the date, time, and place of the
hearing, as well as how to obtain reasonable accommodations, in the
Federal Register and local newspapers at least 15 days before the
hearing. We may hold the public hearing in person or virtually via
webinar. We will announce any public hearing on the Service's website,
in addition to the Federal Register. The use of virtual public hearings
is consistent with our regulations at 50 CFR 424.16(c)(3).
Previous Federal Actions
We identified magnificent ramshorn (with the name Cape Fear
ramshorn snail, Helisoma magnificum (Pilsbry, 1903)) as a Category 2
candidate in our May 22, 1984, notice of review (49 FR 21664). A
Category 2 candidate species was one for which there was some evidence
of vulnerability, but for which additional biological information was
needed to support a proposed rule to list as an endangered or
threatened species. The species (as magnificent (=Cape Fear) ramshorn,
Planorbella (=Helisoma) magnifica)) remained so designated in
subsequent candidate notices of review (CNORs) (54 FR 554, January 6,
1989; 56 FR 58804, November 21, 1991; 59 FR 58982, November 15, 1994).
In the February 28, 1996, CNOR (61 FR 7596), we discontinued the
designation of Category 2 species as candidates; therefore, magnificent
ramshorn was no longer a candidate species.
On April 20, 2010, we were petitioned to list 404 aquatic species
in the southeastern United States, including magnificent ramshorn. In
response to the petition, we completed a partial 90-day finding on
September 27, 2011 (76 FR 59836), in which we announced our finding
that the petition contained substantial information that listing may be
warranted for numerous species, including magnificent ramshorn.
On October 26, 2011, we published the annual CNOR (76 FR 66370) and
announced magnificent ramshorn as a new candidate species with a
listing priority number (LPN) of 2, indicating that the full species
was imminently threatened by a high magnitude of threats. Candidates
are those fish, wildlife, and plants for which we have on file
sufficient information on biological vulnerability and threats to
support preparation of a listing proposal, but for which development of
a listing regulation is precluded by other, higher priority listing
activities. Magnificent ramshorn was included with an LPN of 2 in all
of our subsequent annual CNORs (77 FR 69994, November 21, 2012; 77 FR
70104, November 22, 2013; 79 FR 72450, December 5, 2014; 80 FR 80584,
December 24, 2015; 81 FR 87246, December 2, 2016; 84 FR 54732, October
10, 2019; 85 FR 73164, November 16, 2020; 87 FR 26152, May 3, 2022).
This document constitutes our 12-month petition finding, proposed
listing rule, and proposed critical habitat rule. This document also
serves to meet a court-approved settlement agreement with the Center
for Biological Diversity to deliver a finding to the Federal Register
by September 30, 2022 (Center for Biological Diversity v. FWS, No.
1:21-cv-00884-EGS (May 4, 2022)).
Supporting Documents
A species status assessment (SSA) team prepared a report for
magnificent ramshorn. The SSA team was composed of Service biologists,
in consultation with other species experts. The SSA report represents a
compilation of the best scientific and commercial data available
concerning the status of the species, including the impacts of past,
present, and future factors (both negative and beneficial) affecting
the species. In accordance with our joint policy on peer review
published in the Federal Register on July 1, 1994 (59 FR 34270), and
our August 22, 2016, memorandum updating and clarifying the role of
peer review of listing actions under the Act, we sought the expert
opinions of five appropriate specialists regarding the SSA report. We
received two responses.
I. Proposed Listing Determination
Background
A thorough review of the taxonomy, life history, and ecology of
magnificent ramshorn (Planorbella magnifica) is presented in the SSA
report (version 1.0; Service 2019, pp. 9-16).
Magnificent ramshorn is a species of air-breathing snail endemic to
southeastern North Carolina. It is a freshwater snail in the family
Planorbidae (Pilsbry 1903) and is the largest North American snail in
this family. It has a discoidal (i.e., coiling in one plane) relatively
thin shell that reaches approximately 1.5 inches (38 millimeters) in
diameter. The aperture of the shell is somewhat bell-shaped and very
wide, extending beyond the sides of the shell. Like other members of
the Planorbidae family, magnificent ramshorn is primarily herbivorous,
feeding on emergent and submerged aquatic plants, algae, and detritus
(decomposing plant material). Available information indicates that
suitable habitat for the species is restricted to relatively shallow,
sheltered portions of still or sluggish, freshwater (no salinity)
bodies with an abundance and diversity of emergent and submerged
aquatic vegetation and a circumneutral (nearly neutral) pH (see table
1, below).
Table 1--Magnificent Ramshorn's Habitat Needs
------------------------------------------------------------------------
Waterbody attribute Description
------------------------------------------------------------------------
pH................................ Ideal is 6.8 to 7.5; inactive below
6.5 and above 8.
Salinity.......................... Ideal is 0 parts per thousand (ppt);
1.0 ppt (1.0 grams per liter (g/L))
caused snails to withdraw.
Temperature....................... 60 [deg]F (16 [deg]C) and above.
Still able to feed at 93 [deg]F (34
[deg]C). Dormant below 60 [deg]F.
[[Page 50807]]
Hardness *........................ Ideal hardness is: Lab: 30 ppm (30
mg/L); Hatchery ponds: between 60
ppm (60 mg/L) and 220 ppm (200 mg/
L).
Emergent vegetation............... Aquatic vegetation in sufficient
littoral depth (about 0.5 to 6 feet
(ft) (0.15 to 2 meters (m))) used
for feeding and shelter.
------------------------------------------------------------------------
* ``Hardness'' is considered to be the sum of the calcium and magnesium
ions in water, expressed as milligrams per liter (mg/L) or parts per
million (ppm) as calcium carbonate. It affects snail survival,
particularly shell shape.
Historically, magnificent ramshorn was documented from only four
sites in the lower Cape Fear River Basin in North Carolina: (1)
Greenfield Lake, a millpond located on a tributary to the Cape Fear
River within the present city limits of Wilmington, New Hanover County;
(2) Orton Pond (also known as Sprunt's Pond), a millpond located on
Orton Creek in Brunswick County; (3) Big Pond (also known as Pleasant
Oaks Pond or Sand Hill Creek Pond), a millpond on Sand Hill Creek in
Brunswick County; and (4) McKinzie Pond, a millpond on McKinzie Creek,
in Brunswick County. Species-specific surveys of more than 100
potential sites (including most historical locations) over the last few
decades have not documented any magnificent ramshorn snails, and the
species is currently likely extirpated in the wild.
Regulatory and Analytical Framework
Regulatory Framework
Section 4 of the Act (16 U.S.C. 1533) and its implementing
regulations (50 CFR part 424) set forth the procedures for determining
whether a species is an endangered species or a threatened species. On
July 5, 2022, the U.S. District Court for the Northern District of
California vacated regulations that the Service (jointly with the
National Marine Fisheries Service) had promulgated in 2019 (Center for
Biological Diversity v. Haaland, No. 4:19-cv-05206-JST, Doc. 168 (CBD
v. Haaland). As a result of that vacatur, regulations that were in
effect before those 2019 regulations now govern listing and critical
habitat decisions. Our analysis for this decision applied those pre-
2019 regulations. However, given that litigation remains regarding the
court's vacatur of those 2019 regulations, we also undertook an
analysis of whether the decision would be different if we were to apply
the 2019 regulations. We concluded that the decision would have been
the same if we had applied the 2019 regulations. The analysis based on
the 2019 regulations is included in the record for this decision.
The Act defines an ``endangered species'' as a species that is in
danger of extinction throughout all or a significant portion of its
range, and a ``threatened species'' as a species that is likely to
become an endangered species within the foreseeable future throughout
all or a significant portion of its range. The Act requires that we
determine whether any species is an endangered species or a threatened
species because of any of the following factors:
(A) The present or threatened destruction, modification, or
curtailment of its habitat or range;
(B) Overutilization for commercial, recreational, scientific, or
educational purposes;
(C) Disease or predation;
(D) The inadequacy of existing regulatory mechanisms; or
(E) Other natural or manmade factors affecting its continued
existence.
These factors represent broad categories of natural or human-caused
actions or conditions that could have an effect on a species' continued
existence. In evaluating these actions and conditions, we look for
those that may have a negative effect on individuals of the species, as
well as other actions or conditions that may ameliorate any negative
effects or may have positive effects.
We use the term ``threat'' to refer in general to actions or
conditions that are known to or are reasonably likely to negatively
affect individuals of a species. The term ``threat'' includes actions
or conditions that have a direct impact on individuals (direct
impacts), as well as those that affect individuals through alteration
of their habitat or required resources (stressors). The term ``threat''
may encompass--either together or separately--the source of the action
or condition or the action or condition itself.
However, the mere identification of any threat(s) does not
necessarily mean that the species meets the statutory definition of an
``endangered species'' or a ``threatened species.'' In determining
whether a species meets either definition, we must evaluate all
identified threats by considering the expected response by the species,
and the effects of the threats--in light of those actions and
conditions that will ameliorate the threats--on an individual,
population, and species level. We evaluate each threat and its expected
effects on the species, then analyze the cumulative effect of all of
the threats on the species as a whole. We also consider the cumulative
effect of the threats in light of those actions and conditions that
will have positive effects on the species--such as any existing
regulatory mechanisms or conservation efforts. The Secretary determines
whether the species meets the definition of an ``endangered species''
or a ``threatened species'' only after conducting this cumulative
analysis and describing the expected effect on the species now and in
the foreseeable future.
The Act does not define the term ``foreseeable future,'' which
appears in the statutory definition of ``threatened species.'' Because
the decision in CBD v. Haaland vacated our 2019 regulations regarding
the foreseeable future, we refer to a 2009 Department of the Interior
Solicitor's opinion entitled ``The Meaning of `Foreseeable Future' in
Section 3(20) of the Endangered Species Act'' (M-37021). That
Solicitor's opinion states that the foreseeable future ``must be rooted
in the best available data that allow predictions into the future'' and
extends as those predictions are ``sufficiently reliable to provide a
reasonable degree of confidence in the prediction, in light of the
conservation purposes of the Act.'' Id. at 13.
It is not always possible or necessary to define the foreseeable
future as a particular number of years. Analysis of the foreseeable
future uses the best scientific and commercial data available and
should consider the timeframes applicable to the relevant threats and
to the species' likely responses to those threats in view of its life-
history characteristics. Data that are typically relevant to assessing
the species' biological response include species-specific factors such
as lifespan, reproductive rates or productivity, certain behaviors, and
other demographic factors.
[[Page 50808]]
Analytical Framework
The SSA report documents the results of our comprehensive
biological review of the best scientific and commercial data regarding
the status of the species, including an assessment of the potential
threats to the species. The SSA report does not represent a decision by
the Service on whether the species should be proposed for listing as an
endangered or threatened species under the Act. However, it does
provide the scientific basis that informs our regulatory decisions,
which involve the further application of standards within the Act and
its implementing regulations and policies. The following is a summary
of the key results and conclusions from the SSA report; the full SSA
report can be found at Docket No. FWS-R4-ES-2022-0070 on <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
To assess magnificent ramshorn's viability, we used the three
conservation biology principles of resiliency, redundancy, and
representation (Shaffer and Stein 2000, pp. 306-310). Briefly,
resiliency supports the ability of the species to withstand
environmental and demographic stochasticity (for example, wet or dry,
warm or cold years), redundancy supports the ability of the species to
withstand catastrophic events (for example, droughts, large pollution
events), and representation supports the ability of the species to
adapt over time to long-term changes in the environment (for example,
climate changes). In general, the more resilient and redundant a
species is and the more representation it has, the more likely it is to
sustain populations over time, even under changing environmental
conditions. Using these principles, we identified the species'
ecological requirements for survival and reproduction at the
individual, population, and species levels, and described the
beneficial and risk factors influencing the species' viability.
The SSA process can be categorized into three sequential stages.
During the first stage, we evaluated individual species' life-history
needs. The next stage involved an assessment of the historical and
current condition of the species' demographics and habitat
characteristics, including an explanation of how the species arrived at
its current condition. The final stage of the SSA involved making
predictions about the species' responses to positive and negative
environmental and anthropogenic influences. Throughout all of these
stages, we used the best available information to characterize
viability as the ability of a species to sustain populations in the
wild over time. We use this information to inform our regulatory
decision.
Summary of Biological Status and Threats
In this discussion, we review the biological condition of the
species and its resources, and the threats that influence the species'
current and future condition, in order to assess the species' overall
viability and the risks to that viability. Although magnificent
ramshorn is considered a large snail, its shell is thin and fragile,
indicating that it is adapted to lentic (still or slow-flowing) aquatic
habitats. Available information indicates that suitable habitat for the
species is restricted to relatively shallow, sheltered portions of
still or sluggish, freshwater bodies with an abundance and diversity of
emergent and submerged aquatic vegetation and a circumneutral pH (pH
within the range of 6 to 8) (Jones 2020, pers. comm.). The species is
not able to survive in flowing water, nor is it able to tolerate any
amount of salinity, thus restricting it to inland, freshwater, pond-
like habitats.
Loss of Lentic (Pond) Habitats
Although the complete historical range of magnificent ramshorn is
unknown, available information indicates that the species was likely
once an inhabitant of beaver ponds on tributaries in the lower Cape
Fear River basin; the species may also have once inhabited backwater
and other sluggish portions of tributaries and the main channel of
lower Cape Fear River. Beaver pond habitat was eliminated throughout
much of the lower Cape Fear River as a result of the extirpation of the
beaver due to trapping and hunting during the 19th and early 20th
centuries. This, together with draining and destruction of beaver ponds
for development, agriculture, and other purposes, is believed to have
led to a significant decline in the snails' habitat and significant
reduction in its abundance (Wood 2010, pp. 6, 7). Surveys in the 1990s
also noted the loss of ponds due to hurricanes (Adams 1993, p. 26).
Several ponds that were created or maintained by old mill dams have
structures that will fail, or have failed, during catastrophic events.
Catastrophic rainfall can overtop old mill dam structures and cause
portions of them to wash out, thus draining the ponds behind them. This
is likely what happened at McKinzie Pond. The four known historical
sites where magnificent ramshorn were found are, or were, ponds likely
created by old mill dams.
Saltwater Intrusion
Dredging and deepening of the Cape Fear River channel, which began
as early as 1822, and opening of the Atlantic Intracoastal Waterway
(through Snow's Cut) in 1930 for navigational purposes have caused
saltwater intrusion, altered the diversity and abundance of aquatic
vegetation, and changed flows and current patterns far up the river
channel and its lower tributaries (Adams 1993, p. 22; Wood 2010, p. 7).
Under these circumstances, magnificent ramshorn could have survived
only in lentic areas of tributary streams not affected by saltwater
intrusion and other changes, such as the millponds protected from
saltwater intrusion by their dams (Adams 1993, p. 22).
Climate change and sea level rise pose a significant long-term
threat to the survival of magnificent ramshorn. As previously noted,
magnificent ramshorn is salt-intolerant (Wood 2002, p. 3), and
saltwater intrusion into its habitat is one of the primary factors that
contributed to its extirpation in the wild. In general during the past
century, sea level has risen by 8+ inches (20+ centimeters (cm)), and
available information indicates the rate of sea level rise is
increasing (U.S. Global Change Research Program (USGCRP) 2009, p. 18;
Kopp et al. 2015, p. 700). Sea levels are rising at a rate of about an
inch (2.5 cm) per year (5 inches (12.7 cm) from 2011-2015) in some
areas along the east coast of North Carolina (Valle-Levinson et al.
2017, p. 7876). While future rates of sea level change are uncertain,
continued sea level rise threatens the southeastern U.S. coastal zone
with retreat of shorelines, inundation of coastal wetlands and streams,
and increased salinity of estuaries, coastal wetlands, and tidal rivers
and creeks, pushing freshwater coastal ecosystems farther inland. In
addition, in the future, the southeastern United States faces potential
higher average temperatures (resulting in increased evaporation rates),
less frequent rainfall (resulting in potentially more frequent and
longer dry periods), and an increase in intensity of storm events,
including hurricanes; all of which are likely to increase the rate and
upstream distance of saltwater intrusion into coastal streams. Also,
higher average temperatures and longer periods between rainfall events,
together with increased development and human population levels in
Brunswick and New Hanover Counties, will result in an increased demand
on freshwater systems for drinking, irrigation, and other water needs,
exacerbating the
[[Page 50809]]
effects of sea level changes on streams in the lower Cape Fear River
basin, which encompass the entire known historical range of magnificent
ramshorn (adapted from USGCRP and references therein 2009, pp. 1111-
1116).
Disrupted Nutrient Cycles--Pollution and Nutrient Inputs
The human residential population of Brunswick and New Hanover
Counties is rapidly increasing; both counties are popular vacationing
and retirement areas (see section 5-6 of the SSA report (Service 2019,
pp. 31-35)). Both counties are among the most rapidly developing
counties in the State, with population growth greater than 25 percent
during the period of 2000-2010 (WRAL 2019, unpaginated). Typically, as
development increases, the input of nutrients (through both surface and
groundwater), silt, and other pollutants into the aquatic system
increases. Increased input of these pollutants into the stream from
point and non-point sources may result in eutrophication, decreased
dissolved oxygen concentration, increased acidity and conductivity, and
other changes in water chemistry. Impacts from development within the
areas that formerly harbored magnificent ramshorn or within areas that
may provide potential habitat for the species, have the potential to
reduce groundwater levels, which could have a serious adverse effect on
pH, water hardness, and salinity levels.
Altered Aquatic Vegetation Communities
Aquatic vegetation is common in pond systems, but sometimes the
vegetation can be invasive and overwhelm the aquatic system, such as in
Greenfield Lake, formerly occupied snail habitat in Wilmington.
Managing vegetation in ponds takes many forms; some practices are
compatible with molluscan pond inhabitants (like magnificent ramshorn),
such as aeration or mechanical cutting/removal, but some practices can
significantly impact snails, such as using grass carp, using copper-
based herbicides, or drawing water out of the pond and subsequently
drying out vegetation for complete removal, as was once done in Big
Pond, formerly occupied by the ramshorn. The latter practices result in
snail mortality, either from complete elimination of aquatic vegetation
on which the snails depend, exposure to toxic metals like copper,
lethal temperatures, predation, or desiccation from no access to water
(Adams 1993, p. 12).
Extreme Weather Events
Changes in climate and weather patterns may affect ecosystem
processes and communities by altering the abiotic conditions
experienced by biotic assemblages, resulting in potential effects on
community composition and individual species interactions (DeWan et al.
2010, p. 7). This is especially true for aquatic systems where
increases in droughts or severe storm events resulting from climate
change can trigger a cascade of ecological effects. For example,
increases in air temperatures can lead to subsequent increases in water
temperatures that, in turn, may lower water quality parameters (like
pH), ultimately influencing overall habitat suitability for species
like magnificent ramshorn.
Impacts from climate change affect sea levels; alter precipitation
patterns and subsequent delivery of freshwater, nutrients, and
sediment; and change the frequency and intensity of coastal storms
(Michener et al. 1997, p. 770; Scavia et al. 2002, p. 149; Neumann et
al. 2015, p. 97). During the time when magnificent ramshorn became
extremely rare in the wild (1990s-2000s), three of the top five
strongest/most intense storms experienced in Wilmington, North
Carolina, occurred (1996, 1998, and 1999) and caused massive flooding
and saltwater intrusion into the ponds where magnificent ramshorn
occurred (Service 2019, p. 24).
The North Carolina Wildlife Action Plan (NCWRC 2015, pp. 5-48)
identifies climate change as a ``very high'' threat to magnificent
ramshorn. In addition, in an assessment of ecosystem response to
climate change, factors associated with climate change ranked high with
other factors that were deemed imminent risks to magnificent ramshorn's
historical population locations (e.g., development, pollution, flood
regime alteration, etc.; NCNHP 2010, entire). Furthermore, it should be
recognized that the greatest threat from climate change to magnificent
ramshorn habitat may come from synergistic effects. That is, factors
associated with a changing climate may act as risk multipliers by
increasing the risk and severity of more imminent threats (Arabshahi
and Raines 2012, p. 8). As a result, impacts from rapid urbanization in
the region might be exacerbated under even a mild-to-moderate climate
future.
Regulatory Mechanisms
Magnificent ramshorn is currently listed by the State of North
Carolina as an endangered species. However, this designation does not
protect the species from ``incidental'' harm, injury, or death (that
is, harm, injury, or death resulting from activities not specifically
intended to harm the species) or provide any protection to the species'
habitat except on State-owned lands.
Conservation Efforts
Captive holding of magnificent ramshorn began in the early 1990s,
when individuals were collected to learn about their life-history
requirements (Adams 1993, entire). In the mid-1990s, snails were held
in captivity at the North Carolina Aquarium at Fort Fisher but were
later moved to a private residence due to the influence of salt-laden
air at the aquarium. There is a well-maintained snail sanctuary at the
private residence, kept since the mid-1990s with approximately 100
breeding ramshorn snails.
In early 2012, a small (35 individuals) captive population was
established at North Carolina State University's College of Veterinary
Medicine's (CVM) Aquatic Epidemiology Conservation Laboratory in
Raleigh, North Carolina. These captive snails have reproduced
successfully and there are currently approximately 100 snails at the
facility (which has had to scale back operations temporarily due to
Covid-19 restrictions).
Additional facilities for holding and propagating magnificent
ramshorn at the NCWRC's hatchery in Watha, North Carolina, were
established in 2011. In 2018, NCWRC hired a snail technician to focus
on magnificent ramshorn husbandry at the Watha hatchery. The NCWRC
subsequently moved the snail technician and all snails to their
Conservation Aquaculture Center in Marion, North Carolina; there are
currently approximately 775 breeding snails at this location.
In 2012-2013, several potentially suitable locations, including
portions of Orton Pond, McKinzie Pond, Big Pond (Sand Hill Creek/
Pleasant Oaks Pond), and nearby Pretty Pond, were all brought under
single ownership. In 2014, the landowner approached the Service to
determine the possibility of restoring the snail to Big Pond at the
Pleasant Oaks Plantation. A proposal to assess snail restoration
potential under a candidate conservation agreement with assurances
(CCAA) has been formulated but not finalized or implemented.
The North Carolina Division of Water Resources and the Service are
working with the city of Wilmington, North Carolina, to improve the
water quality of Greenfield Lake, which formerly supported the species.
Greenfield Lake is currently on the State's list of
[[Page 50810]]
impaired water bodies due to excessive nutrient inputs.
In 2018, Service staff performed an analysis to determine the
suitability of potential habitats within the former range to support
introduction of magnificent ramshorn. The results are being used by
staff to field-verify the suitability of potential locations. In
preparation for potential reintroduction, the Service has drafted
experimental protocols to detail necessary steps for possible
introduction of the species into the wild. Further, the Service is
drafting a CCAA for landowners interested in contributing to the
conservation of the State's aquatic species; this agreement would
broadly cover aquatic species and is in addition to the draft CCAA with
the owner of three ponds in the species' historical range.
In 2019 and 2020, Service staff met with Department of Defense
(DoD) and the North Carolina Plant Conservation Program (NCPCP), both
landowners with several ponds on their properties within the historical
range of magnificent ramshorn. The DoD's Military Ocean Terminal Sunny
Point is immediately adjacent to the private property where the species
was last known to occur in the wild. The NCPCP and DoD own ponds in the
same watershed as the historical locations. Both are amenable to having
water quality analyzed to determine whether their ponds could be
suitable habitat for snail introduction, and that habitat assessment
work began in 2021, under the lead of NCWRC.
Further, in a 2019 legal settlement involving a major highway
project, NCDOT committed $250,000 for magnificent ramshorn propagation
into the future while we work on reintroduction site assessment and
landowner agreements.
Summary
Based on the results of repeated surveys from the 1980s to 2010s by
qualified species experts in the species' historical habitat and
suitable habitat in surrounding areas, there appear to be no extant
populations of magnificent ramshorn in the wild. While several factors
have likely contributed to the extirpation of magnificent ramshorn in
the wild, the primary factors include loss of lentic habitats, perhaps
associated with the extirpation of beavers (and their impoundments)
between the early and late 20th century; increased salinity and
alteration of flow patterns in the lower Cape Fear River Basin; and
increased input of nutrients and other pollutants that may have altered
the pH of pond waters beyond what the species can tolerate.
The extirpation of magnificent ramshorn from Greenfield Lake is
likely attributable to the alteration of the lake's water quality and
chemistry resulting from past events such as breaks in sewer lines on
the bottom of the lake; sewage overflows during storm events; runoff of
fertilizers, sediment, toxic chemicals, and other pollutants from heavy
development in the watershed; and efforts by the city of Wilmington to
control aquatic plants and algae within the lake. All of these changes
to Greenfield Lake likely led to salinization of the waters to levels
beyond what the species could tolerate. Additionally, application of
herbicides (usually containing copper) to control aquatic plants would
not only have eliminated the snail's food source but could have
directly killed individual snails.
The Big Pond population of magnificent ramshorn was likely
extirpated in 1996, when the dam on the pond was breached during
flooding associated with Hurricane Fran. This resulted in the
subsequent drawdown of the pond due to failure of the dam, and
saltwater intrusion into the pond from upstream movement of the
saltwater wedge in the Cape Fear River, which killed the aquatic
vegetation and eliminated the salt-intolerant magnificent ramshorn.
Magnificent ramshorn was last observed in McKenzie Pond in 2004,
but was likely extirpated due to saltwater intrusion resulting from
prolonged drought conditions that allowed tidal flow of saltwater to
extend into the areas harboring the snail.
Magnificent ramshorn may have been eliminated from Orton Pond by
the landowner's multiple past attempts to control aquatic vegetation by
drawing down the pond for extended periods of time, thus eliminating
essential habitat components of water and vegetation, causing snail
extirpation.
The ongoing anthropogenic activities described above, coupled with
the effects of climate change, such as extreme weather events (e.g.,
storms/hurricanes) that may blow out dams and cause saltwater
intrusion, have the potential to continue to alter habitat and water
quality such that the breeding, feeding, sheltering, and dispersal
needs of magnificent ramshorn cannot be met.
While efforts have been made to restore habitat for magnificent
ramshorn at one of the sites known to have previously supported the
species, all of the sites continue to be affected by many of the same
factors (i.e., saltwater intrusion and other water quality degradation,
nuisance aquatic plant control, storms, sea level rise, etc.) thought
to have resulted in extirpation of the species from the wild.
Currently, only three captive populations exist, with approximately
1,000 snails in existence. Although captive populations have been
maintained since 1993, a catastrophic event, such as a severe storm,
disease, or predator infestation, affecting one or more of the captive
populations, could result in the near extinction of the species.
Magnificent ramshorn lacks the resiliency, redundancy, and
representation necessary for viability. Magnificent ramshorn
populations were not able to survive habitat degradation resulting from
impacts including saltwater intrusion, pollutant influx, and human
alteration of aquatic vegetation communities, thus eliminating the
species' resiliency. Based on knowledge of the snail and the systems it
depends on, the loss of habitat, and the lack of finding any
magnificent ramshorns despite surveying dozens of possible locations,
magnificent ramshorn has no redundancy in the wild. Furthermore, the
historical range of the species is narrow and limited to lentic
habitats within the Coastal Plain of southeastern North Carolina. We do
not know the level of genetic diversity of the captive animals;
however, we do know that the individuals in captivity are all
descendants of adult snails from two distinct populations: Pleasant
Oaks Pond and McKinzie Pond. The captive ramshorns have extremely
limited representation, and since no magnificent ramshorns are known to
exist in the wild, the species has no representation in the wild. We
cannot project future conditions because there are no known extant
populations on which we can project those conditions. While magnificent
ramshorn is likely extirpated from the wild, recovering the species
means re-establishing self-sustaining populations in the wild.
We note that, by using the SSA framework to guide our analysis of
the scientific information documented in the SSA report, we have not
only analyzed individual effects on the species, but we have also
analyzed their potential cumulative effects. The primary causes of
historical habitat loss within the range of the magnificent ramshorn
are related to anthropogenic activities coupled with extreme weather
events that have altered water quality such that the breeding, feeding,
sheltering, and dispersal needs of the snails cannot be met. We
incorporate the cumulative effects into our SSA analysis when we
characterize the current and future condition of the species. To assess
the condition of the
[[Page 50811]]
species, we undertake an iterative analysis that encompasses and
incorporates the threats individually and then accumulates and
evaluates the effects of all the factors that may be negatively or
positively influencing the species, including threats and conservation
efforts. Because the SSA framework considers not just the presence of
the factors, but to what degree they collectively influence risk to the
entire species, our assessment integrates the cumulative effects of the
factors and replaces a standalone cumulative effects analysis.
Determination of Magnificent Ramshorn's Status
Section 4 of the Act (16 U.S.C. 1533) and its implementing
regulations (50 CFR part 424) set forth the procedures for determining
whether a species meets the definition of endangered species or
threatened species. The Act defines an ``endangered species'' as a
species that is in danger of extinction throughout all or a significant
portion of its range, and a ``threatened species'' as a species that is
likely to become an endangered species within the foreseeable future
throughout all or a significant portion of its range. The Act requires
that we determine whether a species meets the definition of an
endangered species or a threatened species because of any of the
following factors: (A) The present or threatened destruction,
modification, or curtailment of its habitat or range; (B)
overutilization for commercial, recreational, scientific, or
educational purposes; (C) disease or predation; (D) the inadequacy of
existing regulatory mechanisms; or (E) other natural or manmade factors
affecting its continued existence.
We have determined that magnificent ramshorn is likely extirpated
in the wild. The most significant stressor that likely led to the
extirpation of magnificent ramshorn in the wild is the loss of suitable
lentic (still or slow-flowing) habitat that individuals and populations
need to complete their life history (Factor A). The primary causes of
historical habitat loss are related to anthropogenic activities that
removed aquatic vegetation, coupled with extreme weather events (e.g.,
hurricanes that breach dams) that have altered water quality via
saltwater intrusion (Factor E) such that the breeding, feeding,
sheltering, and dispersal needs of the snails cannot be met. Existing
regulatory mechanisms that would ameliorate or reduce these threats are
not adequate (Factor D).
Status Throughout All of Its Range
After evaluating threats to the species and assessing the
cumulative effect of the threats under the Act's section 4(a)(1)
factors, magnificent ramshorn lacks the three factors for viability.
Based on the findings of decades of surveys to locate the species,
magnificent ramshorn is likely extirpated in the wild. The past loss of
suitable pond habitat and the challenge of finding suitable
introduction sites exacerbates the current situation for magnificent
ramshorn. The only known surviving individuals of the species are being
held as part of captive populations. Although captive populations have
been maintained since 1993, a catastrophic event, such as a severe
storm, disease, or predator infestation, affecting one or more of the
captive populations, could result in the near extinction of the
species. Thus, after assessing the best available information, we
conclude that magnificent ramshorn is in danger of extinction
throughout all of its range.
Status Throughout a Significant Portion of Its Range
Under the Act and our implementing regulations, a species may
warrant listing if it is in danger of extinction or likely to become so
in the foreseeable future throughout all or a significant portion of
its range. We have determined that magnificent ramshorn is in danger of
extinction throughout all of its range and accordingly did not
undertake an analysis of any significant portion of its range. Because
magnificent ramshorn warrants listing as endangered throughout all of
its range, our determination does not conflict with the decision in
Center for Biological Diversity v. Everson, 435 F. Supp. 3d 69 (D.D.C.
2020) (Everson), because that decision related to significant portion
of the range analyses for species that warrant listing as threatened,
not endangered, throughout all of their range.
Determination of Status
Our review of the best scientific and commercial data available
indicates that magnificent ramshorn meets the Act's definition of an
endangered species. Therefore, we propose to list magnificent ramshorn
as an endangered species in accordance with sections 3(6) and 4(a)(1)
of the Act.
Available Conservation Measures
Conservation measures provided to species listed as endangered or
threatened species under the Act include recognition, recovery actions,
requirements for Federal protection, and prohibitions against certain
practices. Recognition through listing results in public awareness, and
conservation by Federal, State, Tribal, and local agencies, private
organizations, and individuals. The Act encourages cooperation with the
States and other countries and calls for recovery actions to be carried
out for listed species. The protection required by Federal agencies and
the prohibitions against certain activities are discussed, in part,
below.
The primary purpose of the Act is the conservation of endangered
and threatened species and the ecosystems upon which they depend. The
ultimate goal of such conservation efforts is the recovery of these
listed species, so that they no longer need the protective measures of
the Act. Subsection 4(f) of the Act calls for the Service to develop
and implement recovery plans for the conservation of endangered and
threatened species. The goal of this process is to restore listed
species to a point where they are secure, self-sustaining, and
functioning components of their ecosystems.
The recovery planning process begins with development of a recovery
outline made available to the public soon after a final listing
determination. The recovery outline guides the immediate implementation
of urgent recovery actions while a recovery plan is being developed.
Recovery teams (composed of species experts, Federal and State
agencies, nongovernmental organizations, and stakeholders) may be
established to develop and implement recovery plans. The recovery
planning process involves the identification of actions that are
necessary to halt and reverse the species' decline by addressing the
threats to its survival and recovery. The recovery plan identifies
recovery criteria for review of when a species may be ready for
reclassification from endangered to threatened (``downlisting'') or
removal from protected status (``delisting''), and methods for
monitoring recovery progress. Recovery plans also establish a framework
for agencies to coordinate their recovery efforts and provide estimates
of the cost of implementing recovery tasks. Revisions of the plan may
be done to address continuing or new threats to the species, as new
substantive information becomes available. The recovery outline, draft
recovery plan, final recovery plan, and any revisions will be available
on our website as they are completed (<a href="https://www.fws.gov/program/endangered-species">https://www.fws.gov/program/endangered-species</a>), or from our Raleigh Ecological Services Field
Office (see FOR FURTHER INFORMATION CONTACT).
[[Page 50812]]
Implementation of recovery actions generally requires the
participation of a broad range of partners, including other Federal
agencies, States, Tribes, nongovernmental organizations, businesses,
and private landowners. Examples of recovery actions include habitat
restoration (e.g., restoration of native vegetation), research, captive
propagation and reintroduction, and outreach and education. The
recovery of many listed species cannot be accomplished solely on
Federal lands because their range may occur primarily or solely on non-
Federal lands. To achieve recovery of these species requires
cooperative conservation efforts on private, State, and Tribal lands.
If this species is listed, funding for recovery actions will be
available from a variety of sources, including Federal budgets, State
programs, and cost share grants for non-Federal landowners, the
academic community, and nongovernmental organizations. In addition,
pursuant to section 6 of the Act, the State of North Carolina would be
eligible for Federal funds to implement management actions that promote
the protection or recovery of magnificent ramshorn. Information on our
grant programs that are available to aid species recovery can be found
at: <a href="https://www.fws.gov/service/financial-assistance">https://www.fws.gov/service/financial-assistance</a>.
Although magnificent ramshorn is only proposed for listing under
the Act at this time, please let us know if you are interested in
participating in recovery efforts for this species. Additionally, we
invite you to submit any new information on this species whenever it
becomes available and any information you may have for recovery
planning purposes (see FOR FURTHER INFORMATION CONTACT).
Section 7(a) of the Act requires Federal agencies to evaluate their
actions with respect to any species that is proposed or listed as an
endangered or threatened species and with respect to its critical
habitat. Regulations implementing this interagency cooperation
provision of the Act are codified at 50 CFR part 402. Section 7(a)(4)
of the Act requires Federal agencies to confer with the Service on any
action that is likely to jeopardize the continued existence of a
species proposed for listing or result in destruction or adverse
modification of proposed critical habitat. If a species is listed
subsequently, section 7(a)(2) of the Act requires Federal agencies to
ensure that activities they authorize, fund, or carry out are not
likely to jeopardize the continued existence of the species or destroy
or adversely modify its critical habitat. If a Federal action may
affect a listed species or its critical habitat, the responsible
Federal agency (action agency) must enter into consultation with the
Service.
Federal agency actions within the species' habitat that may require
conference or consultation or both as described in the preceding
paragraph include issuance of permits under section 404 of the Clean
Water Act (33 U.S.C. 1251 et seq.) by the U.S. Army Corps of Engineers,
and construction and maintenance of roads or highways by the Federal
Highway Administration.
The Act and its implementing regulations set forth a series of
general prohibitions and exceptions that apply to endangered wildlife.
The prohibitions of section 9(a)(1) of the Act, codified at 50 CFR
17.21, make it illegal for any person subject to the jurisdiction of
the United States to take (which includes harass, harm, pursue, hunt,
shoot, wound, kill, trap, capture, or collect; or to attempt any of
these) endangered wildlife within the United States or on the high
seas. In addition, it is unlawful to import; export; deliver, receive,
carry, transport, or ship in interstate or foreign commerce in the
course of commercial activity; or sell or offer for sale in interstate
or foreign commerce any species listed as an endangered species. It is
also illegal to possess, sell, deliver, carry, transport, or ship any
such wildlife that has been taken illegally. Certain exceptions apply
to employees of the Service, the National Marine Fisheries Service,
other Federal land management agencies, and State conservation
agencies.
We may issue permits to carry out otherwise prohibited activities
involving endangered wildlife under certain circumstances. Regulations
governing permits are codified at 50 CFR 17.22. With regard to
endangered wildlife, a permit may be issued for the following purposes:
For scientific purposes, to enhance the propagation or survival of the
species, and for incidental take in connection with otherwise lawful
activities. The statute also contains certain exemptions from the
prohibitions, which are found in sections 9 and 10 of the Act.
It is our policy, as published in the Federal Register on July 1,
1994 (59 FR 34272), to identify to the maximum extent practicable at
the time a species is listed, those activities that would or would not
constitute a violation of section 9 of the Act. The intent of this
policy is to increase public awareness of the effect of a proposed
listing on proposed and ongoing activities within the range of the
species proposed for listing. Based on the best available information,
normal rice cultivation impoundment water level management practices
that are carried out in accordance with any existing regulations,
permit requirements, and best management practices are unlikely to
result in a violation of section 9.
Based on the best available information, the following activities
may potentially result in a violation of section 9 of the Act if they
are not authorized in accordance with applicable law; this list is not
comprehensive:
(1) Unauthorized handling or collecting of the species;
(2) Destruction or alteration of the species' habitat by draining,
ditching, tiling, or diverting or altering surface or ground water flow
into or out of ponds or other slack water areas;
(3) Herbicide or other pesticide applications in violation of label
restrictions in areas occupied by magnificent ramshorn;
(4) Introduction of nonnative species that compete with or prey
upon magnificent ramshorn;
(5) Removal or destruction of emergent aquatic vegetation in areas
designated as critical habitat or in any body of water in which
magnificent ramshorn becomes established; and
(6) Discharge of chemicals into any waters in which magnificent
ramshorn becomes established.
Questions regarding whether specific activities would constitute a
violation of section 9 of the Act should be directed to the Raleigh
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).
II. Critical Habitat
Background
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Our regulations at 50 CFR 424.02 define the geographical area
occupied by the species as an area that may generally be delineated
around species' occurrences, as determined by the
[[Page 50813]]
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).
Additionally, although on June 24, 2022, we published a final rule
rescinding the 2019 regulations at 50 CFR 424.02 defining the word
``habitat'' (87 FR 37757), we have determined that, even if we had to
apply definition in the 2019 regulations, this proposed critical
habitat designation would meet this definition.
Conservation, as defined under section 3 of the Act, means to use
and the use of all methods and procedures that are necessary to bring
an endangered or threatened species to the point at which the measures
provided pursuant to the Act are no longer necessary. Such methods and
procedures include, but are not limited to, all activities associated
with scientific resources management such as research, census, law
enforcement, habitat acquisition and maintenance, propagation, live
trapping, and transplantation, and, in the extraordinary case where
population pressures within a given ecosystem cannot be otherwise
relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the requirement that Federal agencies ensure, in consultation
with the Service, that any action they authorize, fund, or carry out is
not likely to result in the destruction or adverse modification of
critical habitat. The designation of critical habitat does not affect
land ownership or establish a refuge, wilderness, reserve, preserve, or
other conservation area. Such designation also 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).
Under the second prong of the Act's definition of critical habitat,
we can designate critical habitat in areas outside the geographical
area occupied by the species at the time it is listed, upon a
determination that such areas are essential for the conservation of the
species. We note that the court in CBD v. Haaland vacated the
provisions from the 2019 regulations regarding unoccupied critical
habitat. Therefore, the regulations that now govern designations of
critical habitat are the implementing regulations that were in effect
before the 2019 regulations.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific data available. Further, our Policy on
Information Standards Under the Endangered Species Act (published in
the Federal Register on July 1, 1994 (59 FR 34271)), the Information
Quality Act (section 515 of the Treasury and General Government
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)),
and our associated Information Quality Guidelines provide criteria,
establish procedures, and provide guidance to ensure that our decisions
are based on the best scientific data available. They require our
biologists, to the extent consistent with the Act and with the use of
the best scientific data available, to use primary and original sources
of information as the basis for recommendations to designate critical
habitat.
When we are determining which areas should be designated as
critical habitat, our primary source of information is generally the
information from the SSA report and information developed during the
listing process for the species. Additional information sources may
include any generalized conservation strategy, criteria, or outline
that may have been developed for the species; the recovery plan for the
species; articles in peer-reviewed journals; conservation plans
developed by States and counties; scientific status surveys and
studies; biological assessments; other unpublished materials; or
experts' opinions or personal knowledge.
Habitat is dynamic, and species may move from one area to another
over time. We recognize that critical habitat designated at a
particular point in time may not include all of the habitat areas that
we may later determine are necessary for the recovery of the species.
For these reasons, a critical habitat designation does not signal that
habitat outside the designated area is unimportant or may not be needed
for recovery of the species. Areas that are important to the
conservation of the species, both inside and outside the critical
habitat designation, will continue to be subject to: (1) Conservation
actions implemented under section 7(a)(1) of the Act; (2) regulatory
protections afforded by the requirement in section 7(a)(2) of the Act
for Federal agencies to ensure their actions are not likely to
jeopardize the continued existence of any endangered or threatened
species; and (3) the prohibitions found in section 9 of the Act.
Federally funded or permitted projects affecting listed species outside
their designated critical habitat areas may still result in jeopardy
findings in some cases. These protections and conservation tools will
continue to contribute to recovery of the species. Similarly, critical
habitat designations made on the basis of the best available
information at the time of designation will not control the direction
and substance of future recovery plans, habitat conservation plans
(HCPs), or other species conservation planning efforts if new
information available at the time of those planning efforts calls for a
different outcome.
Prudency Determination
Section 4(a)(3) of the Act, as amended, and implementing
regulations (50 CFR 424.12), require that, to the maximum extent
prudent and determinable, the Secretary shall designate critical
habitat at the time the species is determined to be an endangered or
threatened species. Our regulations (50 CFR 424.12(a)(1)) state that a
designation of critical habitat is not prudent when any of the
following situations exist:
(i) The species is threatened by taking or other human activity and
identification of critical habitat can be expected to increase the
degree of such threat to the species; or
[[Page 50814]]
(ii) Such designation of critical habitat would not be beneficial
to the species. In determining whether a designation would not be
beneficial, the factors the Services may consider include but are not
limited to: Whether the present or threatened destruction,
modification, or curtailment of a species' habitat or range is not a
threat to the species or whether any areas meet the definition of
``critical habitat.''
There is currently no imminent threat of collection or vandalism
for this species because it is presumed extirpated from the wild, and
identification and mapping of critical habitat is not expected to
initiate any such threat. In our SSA report and this proposed listing
determination for magnificent ramshorn, we have determined that the
present or threatened destruction, modification, or curtailment of
habitat or range is a threat to magnificent ramshorn. We are able to
identify areas that meet the definition of critical habitat. Therefore,
because none of the circumstances enumerated in our regulations at 50
CFR 424.12(a)(1) have been identified, we have determined that the
designation of critical habitat is prudent for magnificent ramshorn.
Critical Habitat Determinability
Having determined that designation is prudent, under section
4(a)(3) of the Act we must find whether critical habitat for
magnificent ramshorn is determinable. Our regulations at 50 CFR
424.12(a)(2) state that critical habitat is not determinable when one
or both of the following situations exist:
(i) Data sufficient to perform required analyses are lacking, or
(ii) The biological needs of the species are not sufficiently well
known to identify any area that meets the definition of ``critical
habitat.''
When critical habitat is not determinable, the Act allows the
Service an additional year to publish a critical habitat designation
(16 U.S.C. 1533(b)(6)(C)(ii)).
We reviewed the available information pertaining to the biological
needs of the species and habitat characteristics where the species was
historically located. This and other information represent the best
scientific data available and led us to conclude that the designation
of critical habitat is determinable for magnificent ramshorn.
Physical or Biological Features Essential to the Conservation of the
Species
In accordance with section 3(5)(A)(i) of the Act and regulations at
50 CFR 424.12(b), in determining which areas we will designate as
critical habitat from within the geographical area occupied by the
species at the time of listing, we consider the physical or biological
features that are essential to the conservation of the species and that
may require special management considerations or protection. The
regulations at 50 CFR 424.02 define physical or biological features as
the features that 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 absence of a particular level of nonnative species consistent
with conservation needs of the listed species. The features may also be
combinations of habitat characteristics and may encompass the
relationship between characteristics or the necessary amount of a
characteristic essential to support the life history of the species.
In considering whether features are essential to the conservation
of the species, we may consider an appropriate quality, quantity, and
spatial and temporal arrangement of habitat characteristics in the
context of the life-history needs, condition, and status of the
species. These characteristics include, but are not limited to, space
for individual and population growth and for normal behavior; food,
water, air, light, minerals, or other nutritional or physiological
requirements; cover or shelter; sites for breeding, reproduction, or
rearing (or development) of offspring; and habitats that are protected
from disturbance.
Summary of Essential Physical or Biological Features
We derive the specific physical or biological features essential to
the conservation of magnificent ramshorn from studies of the species'
habitat, ecology, and life history as described below. Additional
information can be found in the SSA report (Service 2019, entire;
available on <a href="https://www.regulations.gov">https://www.regulations.gov</a> under Docket No. FWS-R4-ES-
2022-0070). We have determined that the physical or biological features
essential to the conservation of magnificent ramshorn consist of
waterbodies within the species' historical range that:
1. Maintain permanent, lentic flow conditions;
2. Have sufficient littoral depth (approximately 0.5 to 6 feet) to
sustain large-leaved emergent aquatic vegetation (e.g., water lilies,
spatterdock, etc.);
3. Maintain circumneutral pH (i.e., between pH 6 and 8);
4. Have no salinity (i.e., 0 parts per thousand (ppt) salinity);
and
5. Maintain natural water hardness to promote shell growth (greater
than 60 parts per million (ppm) calcium carbonate).
Criteria Used To Identify Critical Habitat
Conservation Strategy
Future viability for magnificent ramshorn depends on maintaining
multiple resilient populations over time. While the species is
currently likely extirpated from the wild, species experts have
identified several strategic efforts that will be important to build
the future viability of the species. These could include:
1. Maintain at least two secure captive populations of magnificent
ramshorn until such time as there are enough populations in the wild to
no longer necessitate such an effort.
2. Reintroduce magnificent ramshorn snails to at least two known
historical locations and establish monitoring to ensure reintroductions
are successful; augment until populations are established and success
criteria are met.
3. Introduce magnificent ramshorn snails to at least two other
locations with suitable habitat within the historical range of the
species. Monitor to ensure reintroductions are successful; augment
until populations are established.
These strategic efforts to promote at least four wild populations
(two historical locations occupied and self-sustaining, as well as two
other locations within the historical range occupied and self-
sustaining), will be more thoroughly addressed in future recovery
planning for the species.
As required by section 4(b)(2) of the Act, we use the best
scientific data available to designate critical habitat. In
[[Page 50815]]
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. Because
the species is likely extirpated in the wild, we have determined that
there are no occupied areas to ensure the conservation of the species.
Accordingly, we are proposing to designate critical habitat in two
unoccupied areas within the historical range for the species. In
addition, these unoccupied areas are essential for the conservation of
the species. Each of the two unoccupied units contain suitable habitat
for the magnificent ramshorn--the ponds contain slow-moving waters, are
of sufficient depth to sustain emergent aquatic vegetation, and are
managed consistent with magnificent ramshorn's life requisites. Both
ponds were previously occupied by magnificent ramshorn, and we
determined the factors that led to the species' decline in these
locations have been ameliorated or are manageable.
To delineate critical habitat units, we used the U.S. Geological
Survey's high resolution National Hydrography Dataset (NHD) to
determine the boundaries of each pond. We included all waters from the
base of the dams upstream to the upper limits of the pond features that
became more stream-like, as demarcated in the NHD data layer. For areas
outside the geographic area occupied by the species at the time of
listing, we identified the critical habitat units using the following
considerations:
a. Unoccupied habitats have historical records of species
occurrence;
b. Unoccupied areas exhibit suitable habitat availability,
providing the physical or biological features necessary for survival,
growth, and reproduction of the species;
c. Unoccupied areas provide habitat for reintroduction, with
potential to reduce the level of stochastic and human-induced threats,
and decrease the risk of extinction because the areas currently contain
the essential physical or biological features to support life-history
functions of magnificent ramshorn; and
d. Unoccupied habitat currently supports diverse aquatic pond
communities, including the presence of closely related species
requiring physical or biological features similar to magnificent
ramshorn.
When determining proposed critical habitat boundaries, we made
every effort to avoid including developed areas such as lands covered
by buildings, pavement, and other structures because such lands lack
the physical or biological features necessary for magnificent ramshorn.
The scale of the maps we prepared under the parameters for publication
within the Code of Federal Regulations may not reflect the exclusion of
such developed lands. Any such lands inadvertently left inside critical
habitat boundaries shown on the maps of this proposed rule have been
excluded by text in the proposed rule and are not proposed for
designation as critical habitat. Therefore, if the critical habitat is
finalized as proposed, a Federal action involving these lands would not
trigger section 7 consultation with respect to critical habitat and the
requirement of no adverse modification unless the specific action would
affect the physical or biological features in the adjacent critical
habitat.
We have determined that because there are no occupied areas at the
time of listing, unoccupied areas are essential for the conservation of
the species. Accordingly, we have identified and are proposing two
unoccupied units as critical habitat. As detailed in Conservation
Strategy above, additional units will be needed for recovery, but we
cannot currently determine what other areas will have the best chance
of successful species introduction. To consider for designation areas
not occupied by the species at the time of listing, we must demonstrate
that these areas are essential for the conservation of magnificent
ramshorn. Because the species is likely extirpated from the wild, the
only way for the species to be conserved and have viable populations in
the wild is via captive propagation and reintroduction to unoccupied
areas.
Magnificent ramshorn is historically known from four locations, all
ponds/impoundments. Of these four historical locations, only two meet
all of the criteria for designation as critical habitat. Both
Greenfield Lake and McKinzie Pond no longer have suitable habitat for
the species, and would require extensive restoration and threat
abatement measures before possibly becoming suitable again. Based on
our review, we determined that Orton Pond and Big Pond, the two other
known historical locations for magnificent ramshorn, have the potential
for future reintroduction and reoccupation by the species.
Reestablishing viable populations in those two ponds will provide
redundancy within the historical range and increase the species'
ecological representation. Orton Pond and Big Pond represent habitat
within the historical range with the best potential for recovery of the
species due to current pond conditions, suitability for
reintroductions, compatibility between landowner's existing habitat
management and habitat needs of magnificent ramshorn, and landowner
interest in recovery and access for monitoring.
Accordingly, we propose to designate two units as critical habitat
for magnificent ramshorn. Both units contain the identified physical or
biological features, appear to be capable of supporting multiple life-
history processes of the species, and are essential for the
conservation of the species.
The proposed 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 Proposed Regulation Promulgation. We include
more-detailed information on the boundaries of the proposed critical
habitat designation in the preamble of this document. We will make the
coordinates or plot points or both on which each map is based available
to the public on <a href="https://www.regulations.gov">https://www.regulations.gov</a> at Docket No. FWS-R4-ES-
2022-0070 (see FOR FURTHER INFORMATION CONTACT) and on the Service's
website at <a href="https://www.fws.gov/office/eastern-north-carolina/library">https://www.fws.gov/office/eastern-north-carolina/library</a>.
Proposed Critical Habitat Designation
We are proposing to designate approximately 739 acres (ac) (299
hectares (ha)) in two units as critical habitat for magnificent
ramshorn. The critical habitat areas we describe below constitute our
current best assessment of areas that meet the definition of critical
habitat for magnificent ramshorn. The two areas we propose as critical
habitat are: (1) Orton Pond and (2) Big Pond (Pleasant Oaks Pond). The
table below shows the proposed critical habitat units and the
approximate area of each unit.
[[Page 50816]]
Table 2--Proposed Critical Habitat Units for Magnificent Ramshorn
[Area estimates reflect all land within critical habitat unit boundaries]
----------------------------------------------------------------------------------------------------------------
Size of unit in acres
Critical habitat unit Land ownership by type (hectares) Occupied?
----------------------------------------------------------------------------------------------------------------
1. Orton Pond........................ Private................ 688 ac (278 ha)........ No.
2. Big Pond (Pleasant Oaks Pond)..... Private................ 51 ac (21 ha).......... No.
--------------------------------------------------------------------------
Total............................ ....................... 739 ac (299 ha).
----------------------------------------------------------------------------------------------------------------
We present brief descriptions of each unit, and reasons why they
meet the definition of critical habitat for magnificent ramshorn,
below.
Unit 1: Orton Pond
Unit 1, Orton Pond, consists of 688 ac (278 ha) of unoccupied
lentic habitat in an impounded section of Orton Creek in Brunswick
County, North Carolina, approximately \1/2\ mile upstream from its
confluence with the Cape Fear River, located east of the town of
Boiling Spring Lakes. This pond is privately owned and has a
conservation easement along the entire southeastern shore and along the
dam right-of-way. Access to Orton Pond by researchers surveying for
magnificent ramshorn has been restricted since the mid-1990s, and the
species was last observed in this location in 1995. Orton Pond is one
of four known historical locations for the species, and it currently
has extensive suitable habitat for the ramshorn, including sluggish
flows, sufficient littoral depth for emergent aquatic vegetation, and
no salinity. Its management is consistent with magnificent ramshorn's
life requisites. For these reasons, we find that the formerly occupied
Orton Pond is essential for the conservation of the species.
Unit 2: Big Pond (Pleasant Oaks Pond)
Unit 2, Big Pond, consists of 51 ac (21 ha) of unoccupied lentic
habitat in an impounded section of Sand Hill Creek in Brunswick County,
North Carolina, just upstream of the confluence with the Cape Fear
River across from Campbell Island. This pond is privately owned and has
a conservation easement surrounding the entire pond. The species was
last observed in this location in 1994. Big Pond is one of four known
historical locations for the species, and it currently has extensive
suitable habitat for the ramshorn, including sluggish flows and
sufficient littoral depth for emergent aquatic vegetation. Its
management is consistent with magnificent ramshorn's life requisites.
For these reasons, we find that the formerly occupied Big Pond is
essential for the conservation of the species. Because of its proximity
to the upstream saltwater wedge in the Cape Fear River, and the
potential for dam failure during hurricanes, this pond will require
permanent maintenance to prevent effects of saltwater intrusion and the
landowner has indicated that maintaining the dam to keep freshwater in
the pond is a priority.
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that any action they fund, authorize, or carry out
is not likely to jeopardize the continued existence of any endangered
species or threatened species or result in the destruction or adverse
modification of designated critical habitat of such species. In
addition, section 7(a)(4) of the Act requires Federal agencies to
confer with the Service on any agency action which is likely to
jeopardize the continued existence of any species proposed to be listed
under the Act or result in the destruction or adverse modification of
proposed critical habitat.
We published a final rule with a revised definition of destruction
or adverse modification on February 11, 2016 (81 FR 7214). (Although we
also published a revised definition after that (on August 27, 2019),
that 2019 definition was subsequently vacated by the court in CBD v.
Haaland.) Destruction or adverse modification means a direct or
indirect alteration that appreciably diminishes the value of critical
habitat 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
or a permit from the Service under section 10 of the Act) or that
involve some other Federal action (such as funding from the Federal
Highway Administration, Federal Aviation Administration, or the Federal
Emergency Management Agency). Federal actions not affecting listed
species or critical habitat--and actions on State, Tribal, local, or
private lands that are not federally funded, authorized, or carried out
by a Federal agency--do not require section 7 consultation.
Compliance with the requirements of section 7(a)(2) is documented
through our issuance of:
(1) A concurrence letter for Federal actions that may affect, but
are not likely to adversely affect, listed species or critical habitat;
or
(2) A biological opinion for Federal actions that may affect, and
are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is
likely to jeopardize the continued existence of a listed species and/or
destroy or adversely modify critical habitat, we provide reasonable and
prudent alternatives to the project, if any are identifiable, that
would avoid the likelihood of jeopardy and/or destruction or adverse
modification of critical habitat. We define ``reasonable and prudent
alternatives'' (at 50 CFR 402.02) as alternative actions identified
during consultation that:
(1) Can be implemented in a manner consistent with the intended
purpose of the action,
(2) Can be implemented consistent with the scope of the Federal
agency's legal authority and jurisdiction,
(3) Are economically and technologically feasible, and
(4) Would, in the Director's opinion, avoid the likelihood of
jeopardizing the continued existence of the listed species and/or avoid
the likelihood of destroying or adversely modifying critical habitat.
Reasonable and prudent alternatives can vary from slight project
[[Page 50817]]
modifications to extensive redesign or relocation of the project. Costs
associated with implementing a reasonable and prudent alternative are
similarly variable.
Regulations at 50 CFR 402.16 set forth requirements for Federal
agencies to reinitiate formal consultation on previously reviewed
actions. These requirements apply when the Federal agency has retained
discretionary involvement or control over the action (or the agency's
discretionary involvement or control is authorized by law) and,
subsequent to the previous consultation: (a) If the amount or extent of
taking specified in the incidental take statement is exceeded; (b) if
new information reveals effects of the action that may affect listed
species or critical habitat in a manner or to an extent not previously
considered; (c) if the identified action is subsequently modified in a
manner that causes an effect to the listed species or critical habitat
that was not considered in the biological opinion; or (d) if a new
species is listed or critical habitat designated that may be affected
by the identified action.
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 destruction or adverse modification
determination is whether implementation of the proposed Federal action
directly or indirectly alters the designated critical habitat in a way
that appreciably diminishes the value of the critical habitat for the
conservation of the listed species. As discussed above, the role of
critical habitat is to support physical or biological features
essential to the conservation of a listed species and provide for the
conservation of the species.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe, in any proposed or final regulation that designates critical
habitat, activities involving a Federal action that may violate section
7(a)(2) of the Act by destroying or adversely modifying such habitat,
or that may be affected by such designation.
Activities that we 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 cause physical habitat disturbance. Such
activities could include, but are not limited to, draining, dredging,
channelization, placement of fill, or activities that modify or
compromise the dam structure such that pond habitat quality is
degraded. These activities could eliminate or reduce the habitat
necessary for the conservation of these snails.
(2) Actions that would degrade water quality in tributaries or the
main pond. Such activities could include, but are not limited to,
nonpoint discharges, inputs of dissolved solids or contaminants,
erosion, and sedimentation. These activities could eliminate or greatly
reduce the habitat necessary for the conservation of these snails.
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 (DoD), or designated for its use, that are subject to an
integrated natural resources management plan (INRMP) prepared under
section 101 of the Sikes Act Improvement Act of 1997 (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 DoD lands with a completed INRMP within the
proposed critical habitat designation.
Consideration of Impacts Under Section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that the Secretary shall
designate and make revisions to critical habitat on the basis of the
best available scientific data after taking into consideration the
economic impact, national security impact, and any other relevant
impact of specifying any particular area as critical habitat. The
Secretary may exclude an area from designated critical habitat based on
economic impacts, impacts on national security, or any other relevant
impacts. Exclusion decisions are governed by the regulations at 50 CFR
424.19 and the Policy Regarding Implementation of Section 4(b)(2) of
the Endangered Species Act, 81 FR 7226 (Feb. 11, 2016) (2016 Policy)--
both of which were developed jointly with the National Marine Fisheries
Service (NMFS). We also refer to a 2008 Department of the Interior
Solicitor's opinion entitled ``The Secretary's Authority to Exclude
Areas from a Critical Habitat Designation under Section 4(b)(2) of the
Endangered Species Act'' (M-37016). We explain each decision to exclude
areas, as well as decisions not to exclude, to demonstrate that the
decision is reasonable.
In considering whether to exclude a particular area from the
designation, we identify the benefits of including the area in the
designation, identify the benefits of excluding the area from the
designation, and evaluate whether the benefits of exclusion outweigh
the benefits of inclusion. If the analysis indicates that the benefits
of exclusion outweigh the benefits of inclusion, the Secretary may
exercise discretion to exclude the area only if such exclusion would
not result in the extinction of the species. In making the
determination to exclude a particular area, the statute on its face, as
well as the legislative history, are clear that the Secretary has broad
discretion regarding which factor(s) to use and how much weight to give
to any factor. We describe below our process for considering 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 socio-
economic burden imposed on landowners, managers, or other resource
users potentially affected by the designation of critical habitat
(e.g., under the Federal listing as well as other Federal, State, and
local regulations). The baseline, therefore, represents the costs of
all efforts
[[Page 50818]]
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.
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.
Section 3(f) of E.O. 12866 identifies four criteria when a regulation
is considered a ``significant'' rulemaking, and requires additional
analysis, review, and approval if met. The criterion relevant here is
whether the designation of critical habitat may have an economic effect
of greater than $100 million in any given year (section 3(f)(1)).
Therefore, our consideration of economic impacts uses a screening
analysis to assess whether a designation of critical habitat for the
magnificent ramshorn is likely to exceed the economically significant
threshold. For this particular designation, we developed an incremental
effects memorandum (IEM) considering the probable incremental economic
impacts that may result from this proposed designation of critical
habitat. The information contained in our IEM was then used to develop
a screening analysis of the probable effects of the designation of
critical habitat for magnificent ramshorn (IEc 2020). We began by
conducting a screening analysis of the proposed designation of critical
habitat in order to focus our analysis on the key factors that are
likely to result in incremental economic impacts. The purpose of the
screening analysis is to filter out the geographic areas in which the
critical habitat designation is unlikely to result in probable
incremental economic impacts. In particular, the screening analysis
considers baseline costs (i.e., absent critical habitat designation)
and includes probable economic impacts where land and water use may be
subject to conservation plans, land management plans, best management
practices, or regulations that protect the habitat area as a result of
the Federal listing status of the species. The screening analysis
filters out particular areas of critical habitat that are already
subject to such protections and are, therefore, unlikely to incur
incremental economic impacts. Ultimately, the screening analysis allows
us to focus our analysis on evaluating the specific areas or sectors
that may incur probable incremental economic impacts as a result of the
designation. This includes assessing whether units are unoccupied by
the species and may require additional management or conservation
efforts as a result of the critical habitat designation for the species
that 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 magnificent ramshorn; our DEA is summarized in the
narrative below.
As part of our screening analysis, we considered the types of
economic activities that are likely to occur within the areas likely
affected by the critical habitat designation. In our evaluation of the
probable incremental economic impacts that may result from the proposed
designation of critical habitat for magnificent ramshorn, first we
identified, in the IEM dated February 25, 2020, probable incremental
economic impacts associated with the following categories of
activities: (1) Road maintenance and repair; and (2) dam maintenance.
We considered each industry or category individually. Additionally, we
considered whether the 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. If we list the species and also
finalize this proposed critical habitat designation, our consultation
would include an evaluation of measures to avoid the destruction or
adverse modification of critical habitat.
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
magnificent ramshorn's critical habitat. Because there are currently no
occupied units, all consultations will be addressing adverse
modification alone. At such time that the species is reintroduced, and
as consultation under the jeopardy standard would focus on the effects
of habitat degradation because threats to the species are habitat-
related, critical habitat designation would not be expected to result
in additional consultation in occupied habitat. This evaluation of the
incremental effects has been used as the basis to evaluate the probable
incremental economic impacts of this proposed critical habitat
designation.
The proposed critical habitat designation for magnificent ramshorn
totals approximately 739 ac (299 ha), all of which are currently
unoccupied by the species but are essential for the conservation of the
species. In these unoccupied areas, any conservation efforts or
associated probable impacts would be considered incremental effects
attributed to the critical habitat designation. Within the unoccupied
critical habitat, rarely are any actions expected to occur that will
result in section 7 consultation or associated project modifications
because both of the units are privately owned and subject to
conservation easements. Therefore, future activities and associated
economic impacts in proposed critical habitat units are anticipated to
be limited. Our analysis estimates that cost to private entities is
expected to be relatively minor (administrative efforts will cost less
than $8,900 per year, and potential incremental project modifications
may cost up to $12,000 per year).
We are soliciting data and comments from the public on the DEA
discussed above, as well as on all aspects of this proposed rule and
our required determinations. During the development of a final
designation, we will consider the information presented in the DEA and
any additional information on economic impacts we receive during the
public comment period to determine whether any specific areas should be
excluded from the final critical habitat designation under authority of
section 4(b)(2), and our implementing regulations at 50 CFR 424.19, and
the joint 2016 Policy. We may exclude an area from critical habitat if
we determine that the benefits of excluding
[[Page 50819]]
the area outweigh the benefits of including the area, provided the
exclusion will not result in the extinction of this species
Consideration of National Security Impacts
Section 4(a)(3)(B)(i) of the Act may not cover all DoD lands or
areas that pose potential national-security concerns (e.g., a DoD
installation that is in the process of revising its INRMP for a newly
listed species or a species previously not covered). If a particular
area is not covered under section 4(a)(3)(B)(i), then national-security
or homeland-security concerns are not a factor in the process of
determining what areas meet the definition of ``critical habitat.''
However, the Service must still consider impacts on national security,
including homeland security, on those lands or areas not covered by
section 4(a)(3)(B)(i) because section 4(b)(2) requires the Service to
consider those impacts whenever it designates critical habitat.
Accordingly, if DoD, Department of Homeland Security (DHS), or another
Federal agency has requested exclusion based on an assertion of
national-security or homeland-security concerns, or we have otherwise
identified national-security or homeland-security impacts from
designating particular areas as critical habitat, we generally have
reason to consider excluding those areas.
However, we cannot automatically exclude requested areas. When DoD,
DHS, or another Federal agency requests exclusion from critical habitat
on the basis of national-security or homeland-security impacts, we must
conduct an exclusion analysis if the Federal requester provides
information, including a reasonably specific justification of an
incremental impact on national security that would result from the
designation of that specific area as critical habitat. That
justification could include demonstration of probable impacts, such as
impacts to ongoing border-security patrols and surveillance activities,
or a delay in training or facility construction, as a result of
compliance with section 7(a)(2) of the Act. If the agency requesting
the exclusion does not provide us with a reasonably specific
justification, we will contact the agency to recommend that it provide
a specific justification or clarification of its concerns relative to
the probable incremental impact that could result from the designation.
If we conduct an exclusion analysis because the agency provides a
reasonably specific justification or because we decide to exercise the
discretion to conduct an exclusion analysis, we will defer to the
expert judgment of DoD, DHS, or another Federal agency as to: (1)
Whether activities on its lands or waters, or its activities on other
lands or waters, have national-security or homeland-security
implications; (2) the importance of those implications; and (3) the
degree to which the cited implications would be adversely affected in
the absence of an exclusion. In that circumstance, in conducting a
discretionary section 4(b)(2) exclusion analysis, we will give great
weight to national-security and homeland-security concerns in analyzing
the benefits of exclusion.
In preparing this proposal, we have determined that the lands
within the proposed designation of critical habitat for magnificent
ramshorn are not owned or managed by the DoD or DHS, and, therefore, we
anticipate no impact on national security or homeland security.
However, if through the public comment period we receive information
regarding impacts on national security or homeland security from
designating particular areas as critical habitat, then as part of
developing the final designation of critical habitat, conduct a
discretionary exclusion analysis to determine whether to exclude those
areas under authority of section 4(b)(2), our implementing regulations
at 50 CFR 424.19, and the 2016 Policy.
Consideration of Other Relevant Impacts
Under section 4(b)(2) of the Act, we consider any other relevant
impacts, in addition to economic impacts and impacts on national
security discussed above. To identify other relevant impacts that may
affect the exclusion analysis, we consider a number of factors,
including whether there are permitted conservation plans covering the
species in the area--such as HCPs, safe harbor agreements, or CCAAs--or
whether there are non-permitted conservation agreements and
partnerships that may be impaired by designation of, or exclusion from,
critical habitat. In addition, we look at whether Tribal conservation
plans or partnerships, Tribal resources, or government-to-government
relationships of the United States with Tribal entities may be affected
by the designation. We also consider any State, local, social, or other
impacts that might occur because of the designation.
We have not identified any areas to consider for exclusion from
critical habitat based on other relevant impacts because there are no
identified relevant impacts to Tribes, States, local governments, and
there are no permitted conservation plans covering the species.
However, during the development of a final designation, we will
consider all information currently available or received during the
public comment period. If we receive information that we determine
indicates that there is a potential for supporting a benefit of
excluding any areas, we will undertake an evaluation of that
information to determine whether those areas should be excluded from
the final critical habitat designation under the authority of section
4(b)(2) of the Act and our implementing regulations at 50 CFR 424.19,
as well as the 2016 Policy. If we evaluate information based on a
request for an exclusion and we do not exclude, we will fully describe
in the final critical habitat determination our rationale for not
excluding. We may also exercise the discretion to undertake exclusion
analyses for other areas as well, and we will describe all of our
exclusion analyses as part of a final critical habitat determination.
Non-Permitted Conservation Plans, Agreements, or Partnerships
Shown below is a non-exhaustive list of factors that we consider in
evaluating how non-permitted plans or agreements affect the benefits of
inclusion or exclusion. These are not required elements of plans or
agreements. Rather, they are some of the factors we may consider, and
not all of these factors apply to every plan or agreement.
(i) The degree to which the record of the plan, or information
provided by proponents of an exclusion, supports a conclusion that a
critical habitat designation would impair the realization of the
benefits expected from the plan, agreement, or partnership.
(ii) The extent of public participation in the development of the
conservation plan.
(iii) The degree to which agency review and required determinations
(e.g., State regulatory requirements) have been completed, as necessary
and appropriate.
(iv) Whether National Environmental Policy Act (NEPA; 42 U.S.C.
4321 et seq.) reviews or similar reviews occurred, and the nature of
any such reviews.
(v) The demonstrated implementation and success of the chosen
mechanism.
(vi) The degree to which the plan or agreement provides for the
conservation of the physical or biological features that are essential
to the conservation of the species.
(vii) Whether there is a reasonable expectation that the
conservation management strategies and actions contained in a
management plan or agreement will be implemented.
[[Page 50820]]
(viii) Whether the plan or agreement contains a monitoring program
and adaptive management to ensure that the conservation measures are
effective and can be modified in the future in response to new
information.
At this time, we are not considering excluding any areas within the
proposed critical habitat for magnificent ramshorn that are covered by
non-permitted plans. We are aware of the conservation partnership of
the landowner of Big Pond and a portion of Orton Pond, and the
possibility of a commitment to conserve magnificent ramshorn on their
property. Therefore, we are requesting information supporting a benefit
of excluding any areas from the proposed critical habitat designation.
Based on our evaluation of the information we receive, we may determine
that we have reason to exclude one or more areas from the final
designation.
Summary of Exclusions Considered Under Section 4(b)(2) of the Act
In preparing this proposal, we have determined that no HCPs or
other management plans for magnificent ramshorn currently exist, and
the proposed designation does not include any Tribal lands or trust
resources or any lands for which designation would have any economic or
national-security impacts. Therefore, we anticipate no impact on Tribal
lands, partnerships, or HCPs from this proposed critical habitat
designation, and, as described above, we are not considering excluding
any particular areas on the basis of the presence of conservation
agreements or impacts to trust resources.
During the development of a final designation, we will consider any
additional information we receive during the public comment period on
this proposed rule regarding other relevant impacts to determine
whether any specific areas should be excluded from the final critical
habitat designation under authority of section 4(b)(2) of the Act, and
our implementing regulations at 50 CFR 424.19, and the joint 2016
Policy.
Required Determinations
Clarity of the Rule
We are required by Executive Orders 12866 and 12988 and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in ADDRESSES. To better help us
revise the rule, your comments should be as specific as possible. For
example, you should tell us the numbers of the sections or paragraphs
that are unclearly written, which sections or sentences are too long,
the sections where you feel lists or tables would be useful, etc.
Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) in the Office of Management and Budget will
review all significant rules. OIRA has determined that this proposed
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 proposed rule in a manner
consistent with these requirements.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.),
as amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to
publish a notice of rulemaking for any proposed or final rule, it must
prepare and make available for public comment a regulatory flexibility
analysis that describes the effects of the rule on small entities
(i.e., small businesses, small organizations, and small government
jurisdictions). However, no regulatory flexibility analysis is required
if the head of the agency certifies the rule will not have a
significant economic impact on a substantial number of small entities.
The SBREFA amended the RFA to require Federal agencies to provide a
certification statement of the factual basis for certifying that the
rule will not have a significant economic impact on a substantial
number of small entities.
According to the Small Business Administration, small entities
include small organizations such as independent nonprofit
organizations; small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents; and small businesses (13 CFR 121.201). Small businesses
include manufacturing and mining concerns with fewer than 500
employees, wholesale trade entities with fewer than 100 employees,
retail and service businesses with less than $5 million in annual
sales, general and heavy construction businesses with less than $27.5
million in annual business, special trade contractors doing less than
$11.5 million in annual business, and agricultural businesses with
annual sales less than $750,000. To determine if potential economic
impacts to these small entities are significant, we considered the
types of activities that might trigger regulatory impacts under this
designation as well as types of project modifications that may result.
In general, the term ``significant economic impact'' is meant to apply
to a typical small business firm's business operations.
Under the RFA, as amended, and as understood in 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. While only
Federal action agencies would be directly regulated if we adopt this
proposed critical habitat designation, non-Federal applicants for
federal funds or permits may be indirectly impacted because of
additional evaluations that may be required during the application
process for the federally funded or permitted project, but this is
expected to be rare, and minor when it does occur. The RFA
[[Page 50821]]
does not require evaluation of the potential impacts to entities not
directly regulated. Moreover, Federal agencies are not small entities.
Therefore, because no small entities would be directly regulated by
this rulemaking, the Service certifies that, if made final as proposed,
the proposed critical habitat designation will not have a significant
economic impact on a substantial number of small entities.
In summary, we have considered whether the proposed designation
would result in a significant economic impact on a substantial number
of small entities. For the above reasons and based on currently
available information, we certify that, if made final, the proposed
critical habitat designation will not have a significant economic
impact on a substantial number of small business entities. Therefore,
an initial regulatory flexibility analysis is not required.
Energy Supply, Distribution, or Use--Executive Order 13211
Executive Order 13211 (Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use) requires
agencies to prepare Statements of Energy Effects when undertaking
certain actions. In our economic analysis, we did not find that the
designation of this proposed critical habitat will significantly affect
energy supplies, distribution, or use because the proposed designated
ponds are privately owned. 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 finding:
(1) This proposed rule would not produce a Federal mandate. In
general, a Federal mandate is a provision in legislation, statute, or
regulation that would impose an enforceable duty upon State, local, or
Tribal governments, or the private sector, and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or Tribal governments'' with two
exceptions. It excludes a condition of Federal assistance. It also
excludes a duty arising from participation in a voluntary Federal
program, unless the regulation relates to a then-existing Federal
program under which $500,000,000 or more is provided annually to State,
local, and Tribal governments under entitlement authority, if the
provision would increase the stringency of conditions of assistance or
place caps upon, or otherwise decrease, the Federal Government's
responsibility to provide funding, and the State, local, or Tribal
governments ``lack authority'' to adjust accordingly. At the time of
enactment, these entitlement programs were: Medicaid; Aid to Families
with Dependent Children work programs; Child Nutrition; Food Stamps;
Social Services Block Grants; Vocational Rehabilitation State Grants;
Foster Care, Adoption Assistance, and Independent Living; Family
Support Welfare Services; and Child Support Enforcement. ``Federal
private sector mandate'' includes a regulation that would impose an
enforceable duty upon the private sector, except (i) a condition of
Federal assistance or (ii) a duty arising from participation in a
voluntary Federal program.
The designation of critical habitat does not impose a legally
binding duty on non-Federal Government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not destroy or adversely modify critical
habitat under section 7. While non-Federal entities that receive
Federal funding, assistance, or permits, or that otherwise require
approval or authorization from a Federal agency for an action, may be
indirectly impacted by the designation of critical habitat, the legally
binding duty to avoid destruction or adverse modification of critical
habitat rests squarely on the Federal agency. Furthermore, to the
extent that non-Federal entities are indirectly impacted because they
receive Federal assistance or participate in a voluntary Federal aid
program, the Unfunded Mandates Reform Act would not apply, nor would
critical habitat shift the costs of the large entitlement programs
listed above onto State governments.
(2) We do not believe that this proposed rule would significantly
or uniquely affect small governments because only private lands are
involved in the proposed designation. Therefore, a Small Government
Agency Plan is not required.
Takings--Executive Order 12630
In accordance with E.O. 12630 (Government Actions and Interference
with Constitutionally Protected Private Property Rights), we have
analyzed the potential takings implications of designating critical
habitat for magnificent ramshorn 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 for the
proposed designation of critical habitat for magnificent ramshorn, and
it concludes that, if adopted, this designation of critical habitat
does not pose significant takings implications for lands within or
affected by the designation.
Federalism--Executive Order 13132
In accordance with E.O. 13132 (Federalism), this proposed rule does
not have significant Federalism effects. A federalism 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 proposed critical habitat designation
with, appropriate State resource agencies. From a federalism
perspective, the designation of critical habitat directly affects only
the responsibilities of Federal agencies. The Act imposes no other
duties with respect to critical habitat, either for States and local
governments, or for anyone else. As a result, this proposed rule would
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. However, it may assist State and local governments in long-
range planning because they no longer have to wait for case-by-case
section 7 consultations to occur.
Where State and local governments require approval or authorization
from a Federal agency for actions that may affect critical habitat,
consultation under section 7(a)(2) of the Act would be required. While
non-Federal entities that receive Federal funding, assistance, or
permits, or that otherwise require
[[Page 50822]]
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 proposed rule does
not unduly burden the judicial system and that it meets the
requirements of sections 3(a) and 3(b)(2) of the Order. We have
proposed designating critical habitat in accordance with the provisions
of the Act. To assist the public in understanding the habitat needs of
the species, this proposed rule identifies the elements of the physical
or biological features essential to the conservation of the species.
The proposed areas of designated critical habitat are presented on
maps, and the proposed 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 proposed 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 have determined that no Tribal
lands fall within the boundaries of the proposed critical habitat for
magnificent ramshorn, so no Tribal lands would be affected by the
proposed designation.
References Cited
A complete list of 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 Raleigh Ecological Services Field Office (see FOR FURTHER
INFORMATION CONTACT).
Authors
The primary authors of this proposed rule are the staff members of
the Fish and Wildlife Service's Species Assessment Team and the Raleigh
Ecological Services Field Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Plants,
Reporting and recordkeeping requirements, Transportation, Wildlife.
Proposed Regulation Promulgation
Accordingly, we propose to amend part 17, subchapter B of chapter
I, title 50 of the Code of Federal Regulations, as set forth below:
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, in paragraph (h), by adding an entry for
``Ramshorn, magnificent'' to the List of Endangered and Threatened
Wildlife in alphabetical order under SNAILS to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
----------------------------------------------------------------------------------------------------------------
Listing citations and
Common name Scientific name Where listed Status applicable rules
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Snails
* * * * * * *
Ramshorn, magnificent........... Planorbella Wherever found.... E [Federal Register
magnifica. citation when
published as a final
rule]; 50 CFR
17.95(f).\CH\
* * * * * * *
----------------------------------------------------------------------------------------------------------------
0
3. Amend Sec. 17.95, in paragraph (f), by adding an entry for
``Magnificent Ramshorn (Planorbella magnifica)'' immediately following
the entry for ``Rough Hornsnail (Pleurocera foremani)'' to read as
follows:
Sec. 17.95 Critical habitat--fish and wildlife.
* * * * *
(f) * * *
* * * * *
Magnificent Ramshorn (Planorbella magnifica)
(1) Critical habitat units are depicted for Brunswick County, North
Carolina, on the map in this entry.
(2) Critical habitat does not include humanmade structures (such as
buildings, aqueducts, runways, roads, and other paved areas) and the
land on
[[Page 50823]]
which they are located existing within the legal boundaries on the
effective date of this rule.
(3) Data layers defining map units were created in a Geographic
Information System (GIS), and critical habitat units were mapped using
the U.S. Geological Survey's National Hydrography Dataset. The map in
this entry, as modified by any accompanying regulatory text,
establishes the boundaries of the critical habitat designation. The
coordinates or plot points or both on which the map is based are
available to the public at <a href="https://www.regulations.gov">https://www.regulations.gov</a> at Docket No.
FWS-R4-ES-2022-0070, and at the field office responsible for this
designation. You may obtain field office location information by
contacting one of the Service regional offices, the addresses of which
are listed at 50 CFR 2.2.
(4) Unit 1: Orton Pond, Brunswick County, North Carolina.
(i) Unit 1 consists of 688 acres (ac) (278 hectares (ha)) in an
impounded section of Orton Creek in Brunswick County, North Carolina,
approximately \1/2\ mile upstream from the confluence with the Cape
Fear River and east of the town of Boiling Spring Lakes. Unit 1 is
composed of lands in private ownership.
(ii) Map of Units 1 and 2 follows:
BILLING CODE 4333-15-P
[GRAPHIC] [TIFF OMITTED] TP18AU22.001
[[Page 50824]]
(5) Unit 2: Big Pond (Pleasant Oaks Pond), Brunswick County, North
Carolina.
(i) Unit 2 consists of 51 ac (21 ha) in an impounded section of
Sand Hill Creek in Brunswick County, North Carolina, near the
confluence with the Cape Fear River across from Campbell Island. Unit 2
is composed of lands in private ownership.
(ii) Map of Unit 2 is provided at paragraph (4)(ii) of this entry.
* * * * *
Martha Williams,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2022-17743 Filed 8-17-22; 8:45 am]
BILLING CODE 4333-15-C
</pre></body>
</html>Indexed from Federal Register on August 18, 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.