Proposed Rule2022-21333
Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Louisiana Pinesnake
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
October 6, 2022
Issuing agencies
Interior DepartmentFish and Wildlife Service
Abstract
We, the U.S. Fish and Wildlife Service (Service), propose to designate critical habitat for the Louisiana pinesnake (Pituophis ruthveni) under the Endangered Species Act of 1973, as amended (Act). In total, approximately 209,520 acres (84,790 hectares) in Bienville, Grant, Rapides, and Vernon parishes, Louisiana, and in Newton, Angelina, and Jasper Counties, Texas, fall within the boundaries of the proposed critical habitat designation. We also announce the availability of a draft economic analysis of the proposed designation of critical habitat for the Louisiana pinesnake.
Full Text
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[Federal Register Volume 87, Number 193 (Thursday, October 6, 2022)]
[Proposed Rules]
[Pages 60580-60612]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-21333]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R4-ES-2021-0166; FF09E21000 FXES1111090FEDR 223]
RIN 1018-BE91
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for Louisiana Pinesnake
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
designate critical habitat for the Louisiana pinesnake (Pituophis
ruthveni) under the Endangered Species Act of 1973, as amended (Act).
In total, approximately 209,520 acres (84,790 hectares) in Bienville,
Grant, Rapides, and Vernon parishes, Louisiana, and in Newton,
Angelina, and Jasper Counties, Texas, fall within the boundaries of the
proposed critical habitat designation. We also announce the
availability of a draft economic analysis of the proposed designation
of critical habitat for the Louisiana pinesnake.
DATES: We will accept comments received or postmarked on or before
December 5, 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 a
public hearing, in writing, at the address shown in FOR FURTHER
INFORMATION CONTACT by November 21, 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-2021-0166,
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-2021-0166, 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: The coordinates or plot
points or both from which the maps are generated are included in the
decision file for this proposed critical habitat designation and are
available at <a href="https://www.regulations.gov">https://www.regulations.gov</a> under Docket No. FWS-R4-ES-
2021-0166 and on the Service's website, at <a href="https://www.fws.gov/office/louisiana-ecological-services/library">https://www.fws.gov/office/louisiana-ecological-services/library</a>. Additional supporting
information that we developed for this proposed critical habitat
designation will be available on the Service's website, at <a href="https://www.regulations.gov">https://www.regulations.gov</a>, or both.
FOR FURTHER INFORMATION CONTACT: Brigette Firmin, Deputy Field
Supervisor, U.S. Fish and Wildlife Service, Louisiana Ecological
Services Field Office, 200 Dulles Drive, Lafayette, LA 70506; telephone
337-291-3100. 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 Endangered Species Act,
any species that is determined to be an endangered or threatened
species requires critical habitat to be designated, to the maximum
extent prudent and determinable. Designation and revisions of critical
habitat can only be completed by issuing a rule through the
Administrative Procedure Act rulemaking process.
What this document does. We propose to designate critical habitat
for the Louisiana pinesnake, which is listed as a threatened species.
The basis for our action. Section 4(a)(3) of the Act requires the
Secretary of the Interior (Secretary) to designate critical habitat
concurrent with listing, to the maximum extent prudent and
determinable. Section 3(5)(A) of the Act defines critical habitat as
(i) the specific areas within the geographical area occupied by the
species, at the time it is listed, on which are found those physical or
biological features (I) essential to the conservation of the
[[Page 60581]]
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 impact of specifying any
particular area as critical habitat.
Draft economic analysis of the proposed designation of critical
habitat. In order to consider the economic impacts of designating
critical habitat for the Louisiana pinesnake, we compiled information
pertaining to the potential incremental economic impacts for this
proposed critical habitat designation. The information we used in
determining the economic impacts of the proposed critical habitat is
summarized in this proposed rule (see Consideration of Economic
Impacts, below) and is available at <a href="https://www.regulations.gov">https://www.regulations.gov</a> under
Docket No. FWS-R4-ES-2021-0166 and at the Louisiana Field Office at
(see FOR FURTHER INFORMATION CONTACT). We are soliciting public
comments on the economic information provided and any other potential
economic impact of the proposed designation. We will continue to
reevaluate the potential economic impacts between this proposal and our
final designation.
Peer review. We are seeking comments from independent specialists
to ensure that our proposal is based on scientifically sound data and
analyses. We have invited four peer reviewers to comment on our
specific assumptions and conclusions in this proposed rule.
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 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 reasons why we should or should not designate habitat as
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et
seq.), including information to inform the following factors 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.''
(2) Specific information on:
(a) The amount and distribution of Louisiana pinesnake habitat;
(b) What areas occurring within the range of the species, in
Louisiana and Texas, should be included in the designation because they
(i) were 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 (ii)
were 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.
(3) Land use designations and current or planned activities in the
subject areas and their possible impacts on proposed critical habitat.
(4) 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.
(5) 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.
(6) Whether any specific areas we are proposing for critical
habitat designation should be considered for exclusion under section
4(b)(2) of the Act, and whether the benefits of potentially excluding
any specific area outweigh the benefits of including that area under
section 4(b)(2) of the Act, in particular for those lands managed under
a Service-approved plan (e.g., safe harbor agreement, candidate
conservation agreement, or other land management plan). If you think we
should exclude any additional areas, please provide information
supporting a benefit of exclusion.
(7) 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. If you
request exclusion of a particular area or areas from the final
designation, please provide credible information regarding the
existence of a meaningful economic or other relevant impact supporting
the benefit of exclusion of that particular area.
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)(2) of
the Act directs that the Secretary shall designate critical habitat on
the basis of the best scientific information 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 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 we receive
during the comment period, our final critical habitat designation may
differ from this proposal. Based on the new information we receive (and
any comments on that new information), our final designation may not
include all areas proposed, may include some additional areas that meet
the definition of critical habitat, and may exclude some areas if we
find the benefits of
[[Page 60582]]
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 our 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
On October 6, 2016, we published in the Federal Register (81 FR
69454) a proposed rule to list the Louisiana pinesnake as a threatened
species under the Act. In that proposed rule, we determined that
critical habitat was prudent but not determinable because we lacked
specific information on the impacts of our designation. On April 6,
2018, we published in the Federal Register (83 FR 14958) our final rule
to list the Louisiana pinesnake as a threatened species under the Act.
In that final rule, we stated that we were in the process of obtaining
information on the impacts of critical habitat designation for the
species.
On April 6, 2018, we published in the Federal Register (83 FR
14836) a proposed rule to adopt a species-specific rule under section
4(d) of the Act (a ``4(d) rule'') to provide for the conservation of
the Louisiana pinesnake. On February 27, 2020, we published in the
Federal Register (85 FR 11297) the final 4(d) rule for the species.
All other previous Federal actions are described in the October 6,
2016, proposed rule (81 FR 69454).
Supporting Documents
A Service biologist prepared an SSA report for the Louisiana
pinesnake 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 8 appropriate specialists regarding the SSA. We received 4
responses.
Background
Section 4 of the Act (16 U.S.C. 1533) and the implementing
regulations in title 50 of the Code of Federal Regulations set forth
the procedures for determining whether a species is an endangered
species or a threatened species, issuing protective regulations for
threatened species, and designating critical habitat for threatened and
endangered species. In 2019, jointly with the National Marine Fisheries
Service, the Service issued final rules that revised the regulations in
50 CFR parts 17 and 424 regarding how we add, remove, and reclassify
threatened and endangered species and the criteria for designating
listed species' critical habitat (84 FR 45020 and 84 FR 44752; August
27, 2019).
However, on July 5, 2022, the U.S. District Court for the Northern
District of California vacated the 2019 regulations (Center for
Biological Diversity v. Haaland, No. 4:19-cv-05206-JST, Doc. 168 (N.D.
Cal. July 5, 2022) (CBD v. Haaland)), reinstating the regulations that
were in effect before the effective date of the 2019 regulations as the
law governing species classification and critical habitat decisions.
Accordingly, in developing the analysis contained in this proposal, we
applied the pre-2019 regulations, which may be reviewed in the 2018
edition of the Code of Federal Regulations at 50 CFR 424.02 and
424.12(a)(1) and (b)(2)). Because of the ongoing litigation regarding
the court's vacatur of the 2019 regulations, and the resulting
uncertainty surrounding the legal status of the regulations, we also
undertook an analysis of whether the proposal would be different if we
were to apply the 2019 regulations. That analysis, which we described
in a separate memo in the decisional file and posted on <a href="https://www.regulations.gov">https://www.regulations.gov</a>, concluded that we would have reached the same
proposal if we had applied the 2019 regulations because under either
regulatory scheme we find that critical habitat is prudent for the
Louisiana pinesnake and that unoccupied critical habitat is essential
for the conservation of the species. With a low number of extant
populations and threats of habitat loss from land use change, lack of
prescribed fire, and synergistic effects from mortality due to vehicle
strikes and predators acting on vulnerable, reduced populations, areas
of unoccupied habitat were determined essential for the conservation of
the species. It is reasonably certain that the unoccupied unit will
contribute to the conservation of the species by providing additional
areas for Louisiana pinesnake recovery actions, including population
establishment, and the unoccupied unit contains one or more of the
physical or biological features that are essential to the conservation
of the species and it has the abiotic and biotic features that
currently or periodically contain the resources and conditions
necessary to support one or more life processes of the Louisiana
pinesnake.
On September 21, 2022, the U.S. Circuit Court of Appeals for the
Ninth Circuit stayed the district court's July 5, 2022, order vacating
the 2019 regulations until a pending motion for reconsideration before
the district court is resolved (In re: Cattlemen's Ass'n, No. 22-
70194). The effect of the stay is that the 2019 regulations are
currently the governing law. Because a court order requires us to
submit this proposal to the Federal Register by September 30, 2022, it
is not feasible for us to revise the proposal in response to the Ninth
Circuit's decision. Instead, we hereby adopt the analysis in the
separate memo that applied the 2019 regulations as our primary
justification for the proposal. However, due to the continued
uncertainty resulting from the ongoing litigation, we also retain the
analysis in this preamble that applies the pre-2019 regulations and we
conclude that, for the reasons stated in our separate memo analyzing
the 2019 regulations, this proposal would have been the same if we had
applied the 2019 regulations.
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Our regulations at 50 CFR 424.02 define the geographical area
occupied by the species as an area that may generally be delineated
around species' occurrences, as determined by the Secretary (i.e.,
range). Such areas may
[[Page 60583]]
include those areas used throughout all or part of the species' life
cycle, even if not used on a regular basis (e.g., migratory corridors,
seasonal habitats, and habitats used periodically, but not solely by
vagrant individuals).
Conservation, as defined under section 3 of the Act, means to use
and the use of all methods and procedures that are necessary to bring
an endangered or threatened species to the point at which the measures
provided pursuant to the Act are no longer necessary. Such methods and
procedures include, but are not limited to, all activities associated
with scientific resources management such as research, census, law
enforcement, habitat acquisition and maintenance, propagation, live
trapping, and transplantation, and, in the extraordinary case where
population pressures within a given ecosystem cannot be otherwise
relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the requirement that Federal agencies ensure, in consultation
with the Service, that any action they authorize, fund, or carry out is
not likely to result in the destruction or adverse modification of
critical habitat. The designation of critical habitat does not affect
land ownership or establish a refuge, wilderness, reserve, preserve, or
other conservation area. Such designation 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.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific data available. Further, our Policy on
Information Standards Under the Endangered Species Act (published in
the Federal Register on July 1, 1994 (59 FR 34271)), the Information
Quality Act (section 515 of the Treasury and General Government
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)),
and our associated Information Quality Guidelines provide criteria,
establish procedures, and provide guidance to ensure that our decisions
are based on the best scientific data available. They require our
biologists, to the extent consistent with the Act and with the use of
the best scientific data available, to use primary and original sources
of information as the basis for recommendations to designate critical
habitat.
When we are determining which areas should be designated as
critical habitat, our primary source of information is generally the
information developed during the listing process for the species.
Additional information sources may include species status assessments
for the species; 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
(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.''
In the final listing rule (83 FR 14958; April 6, 2018), no imminent
threat of take attributed to collection or vandalism under Factor B was
identified for the Louisiana pinesnake, and identification and mapping
of critical habitat is not expected to initiate any such threat.
Additionally, in the
[[Page 60584]]
final listing rule, we determined that the present or threatened
destruction, modification, or curtailment of habitat or range is a
threat to this species, primarily due to silviculture practices
incompatible with providing open pine conditions over time, fire
suppression, road and right-of-way construction, and urbanization.
Therefore, because none of the circumstances enumerated in our
regulations at 50 CFR 424.12(a)(1) have been met, we have determined
that the designation of critical habitat is prudent for the Louisiana
pinesnake.
Critical Habitat Determinability
Having determined that designation is prudent, under section
4(a)(3) of the Act we must find whether critical habitat for the
Louisiana pinesnake 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)).
When we published the proposed listing rule (81 FR 69454; October
6, 2016) and final listing rule (83 FR 14958; April 6, 2018) for the
Louisiana pinesnake, specific information needed to perform the
required analysis of the impacts of designation was lacking, such as
information on areas to be proposed for designation and the potential
economic impacts associated with designation of these areas, leading us
to find that critical habitat was not determinable. We continued to
review the available information related to the draft economic
analysis, as well as newly acquired biological information necessary to
perform this assessment. This and other information represent the best
scientific data available, and we now find the data are sufficient for
us to analyze the impacts of critical habitat designation. Accordingly,
we conclude that the designation of critical habitat is determinable
for the Louisiana pinesnake.
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 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 or a particular level of nonnative species consistent
with conservation needs of the listed species. The features may also be
combinations of habitat characteristics and may encompass the
relationship between characteristics or the necessary amount of a
characteristic essential to support the life history of the species.
In considering whether features are essential to the conservation
of the species, we may consider an appropriate quality, quantity, and
spatial and temporal arrangement of habitat characteristics in the
context of the life-history needs, condition, and status of the
species. These characteristics include, but are not limited to, space
for individual and population growth and for normal behavior; food,
water, air, light, minerals, or other nutritional or physiological
requirements; cover or shelter; sites for breeding, reproduction, or
rearing (or development) of offspring; and habitats that are protected
from disturbance.
Details on habitat characteristics for the Louisiana pinesnake can
be found in the proposed listing rule (81 FR 69454; October 6, 2016)
and final listing rule (83 FR 14958; April 6, 2018). We summarize below
the more important habitat characteristics, particularly those that
support the description of physical or biological features essential to
the conservation of the Louisiana pinesnake.
Habitat Representative of the Historical, Geographical, and Ecological
Distributions of the Species
The Louisiana pinesnake occurs in a disjunct portion of the
historical southeastern U.S. longleaf-dominated pine ecosystem in west-
central Louisiana and east Texas (Conant 1956, p. 19; Reichling 1995,
p. 186). Much of the natural longleaf pine habitat has been lost or
degraded through historical conversion to intensive pine plantation and
suppression of the naturally occurring fire regime. As a result,
Louisiana pinesnake habitat now occurs in smaller, isolated patches of
open-canopy forests dominated by longleaf pine or other pine species.
These habitats include species such as longleaf, shortleaf, slash, or
loblolly pines with a sparse midstory, and well-developed herbaceous
groundcover dominated by grasses and forbs (Young and Vandeventer 1988,
p. 204; Rudolph and Burgdorf 1997, p. 117). Louisiana pinesnakes are
found in pine habitats characterized by relatively few (<10) large
trees (greater than 10 inches (in) (25 centimeters (cm)) diameter at
breast height) and abundant light penetration (Himes et al. 2006, pp.
108-110, 113).
Space for Individual and Population Growth and for Normal Behavior
A broad distribution of home range sizes for the Louisiana
pinesnake has been estimated from telemetry studies. Louisiana
pinesnakes are semi-fossorial and diurnal, and move relatively small
distances (495-3,802 feet (ft) (150-1,159 meters (m)) (Himes 1998, p.
18; Ealy et al. 2004, pp. 390-391). The maximum distance across a home
range for an individual Louisiana pinesnake is 2.1 kilometers (km) (1.3
miles (mi)) (Sperry 2018, unpub. data). The species has a relatively
small average home range size, although there is extensive variation
among individuals in behavior and habitat (Sperry et al. 2021, p. 273).
Using a method to determine the species' home range boundaries by
connecting the outer location points, adult Louisiana pinesnake home
range estimates range from 16 acres (ac) (6.5 hectares (ha)) to 412.2
ac (166.8 ha) (Himes 1998, p. 18; Himes et al. 2006, p. 108; Sperry et
al. 2021, pp. 273, 288), with an average home range of 124 ac (50 ha).
Adult Louisiana pinesnake males typically have larger home ranges than
adult females, and adult snakes have larger home ranges than juveniles
(Himes et al. 2006, pp. 18, 107). In addition, individual Louisiana
[[Page 60585]]
pinesnake home ranges may partially or nearly completely overlap with
other individuals' home ranges, irrespective of sex (Sperry et al.
2021, p. 275).
The minimum amount of habitat necessary to support a sustainable
Louisiana pinesnake population has not been determined. However, a
related species, the Florida pinesnake (Pituophis melanoleucus
mugitus), requires a minimum of approximately 7,413 ac (3,000 ha) of
suitable habitat as determined by calculating the area of non-
overlapping home ranges of 50 Florida pinesnakes (Miller 2008, pp. 27-
28). To calculate a potential minimum area required for a Louisiana
pinesnake population using a similar methodology, we considered several
factors including minimum effective population size and average home
range size. A population of 50 individuals has been proposed as a
minimum effective population size for many vertebrate species, and we
use this value in our calculations of potential minimum area
requirement (Franklin 1980, p. 147). A ratio of 0.58 of the effective
population size to population size (Ne/N) represented the greatest
effective population size for a given population size that included the
most comprehensive suite of pertinent data and was similar to other
animals with low fecundity (Frankham 1997, p. 99). To develop a
potential minimum area required by the Louisiana pinesnake, we
estimated an actual population size by applying this ratio to the 50 Ne
value from Franklin (1980), which yielded an estimated actual
population size of 86 individuals for the Louisiana pinesnake. Using
the calculated actual population size, we adjusted the population areal
minimum analysis from Miller (2008) to use species-appropriate
partially overlapping polygons (instead of non-overlapping) of 124 ac
(50 ha) as the mean home range for Louisiana pinesnake. This modeling
exercise used varying degrees of overlap among the polygons and yielded
total estimates between 5,312 to 10,625 ac (2,150 to 4,300 ha). When
each home range partially overlapped four neighboring home ranges, we
determined approximately 7,166 ac (2,900 ha) was the minimum area
needed for a Louisiana pinesnake population. This estimate assumes that
the area is composed of mostly unfragmented, suitable habitat; more
area may be necessary to meet the Louisiana pinesnake's life-history
needs if the habitat is in less suitable condition.
This calculated minimum required habitat area estimate is analogous
to the area needed by the threatened eastern indigo snake (Drymarchon
couperi), a large-bodied, wide-ranging snake that is also a longleaf
pine ecosystem specialist. Although the eastern indigo snake's average
home range sizes are larger than that of the Louisiana pinesnake,
sizeable areas are needed to support large, wide-ranging snake species
sensitive to landscape fragmentation. For example, tracts of 2,500 to
10,000 ac (1,012 to 4,047 ha) of suitable habitat should be maintained
in order to have a high probability of sustaining eastern indigo snake
populations of varying sizes long-term (Moler 1992, p. 185; Sytsma et
al. 2012, pp. 39-40). Thus, based on the best available information
regarding long-distance movement and home range size for the Louisiana
pinesnake, we determined that 7,166 ac (2,900 ha) of open-canopy pine
forest habitat is an appropriate estimate of the minimum area to meet
the life-history requirements of a Louisiana pinesnake population.
Unlike some snake species whose wintering areas may be located some
distance from areas used during the rest of the year or may differ
substantially in habitat type, the Louisiana pinesnake remains within
its home range and does not migrate or require seasonally unique
habitat (Rudolph et al. 2007, p. 561; Pierce et al. 2014, p. 140).
During the winter, Louisiana pinesnakes primarily use Baird's pocket
gopher (Geomys breviceps) underground burrows as hibernacula (Rudolph
et al. 2007, p. 561; Pierce et al. 2014, p. 140). Louisiana pinesnake
activity varies seasonally, with most activity March to May and
September to November (with activity peaking in November), and least
activity December to February and during the summer (particularly
August) (Himes 1998, p. 12).
Most of the information known about the life-history requirements
of the Louisiana pinesnake comes from studies and observations of adult
individuals. Life-history requirements specific to hatchlings and
juveniles (generally less than 47 in (120 cm) total length) are largely
unknown, and we assume requirements are relatively similar to those of
adults. Accordingly, habitat characteristics that support adult
Louisiana pinesnakes also support hatchling and juvenile snakes.
Therefore, no specific physical or biological features unique to
hatchlings or juveniles have been identified.
Food, Water, Air, Light, Minerals, or Other Nutritional or
Physiological Requirements
Food--Prey and Vegetation
Louisiana pinesnakes rely on Baird's pocket gopher as a primary
prey item and also use gopher burrows as refugia and hibernacula. The
Louisiana pinesnake and Baird's pocket gopher are strongly associated
and occur together in upland pine habitats with herbaceous vegetation,
areas with nonexistent or sparse midstory, and a low pine basal area
(Rudolph and Burgdorf 1997, p. 117; Ealy et al. 2004, p. 389; Himes et
al. 2006, pp. 110, 112; Wagner et al. 2017, p. 22). Habitat selection
by the Louisiana pinesnake is determined, in part, by the abundance and
distribution of pocket gophers and their burrow systems (Rudolph and
Burgdorf 1997, p. 117). The Baird's pocket gopher requires well-
drained, sandy soils with low clay content in the topsoil for burrow
construction and a diverse herbaceous (non-woody) plant community with
adequate forbs (non-grass herbaceous vegetation) that provide forage
(Davis et al. 1938, p. 414).
The Baird's pocket gopher comprises an estimated 53 percent of
individual prey items and 75 percent of total prey biomass for
Louisiana pinesnakes (Rudolph et al. 2002, p. 58; Rudolph et al. 2012,
p. 243). The Louisiana pinesnake also consumes other mammals that occur
in pine habitats, including eastern moles (Scalopus aquaticus), cotton
rats (Sigmodon hispidus), deer mice (Peromyscus sp.), and harvest mice
(Reithrodontomys sp.) (Rudolph et al. 2002, p. 59; Rudolph et al. 2012,
p. 244). These smaller animals may also be the preferred prey items for
juvenile Louisiana pinesnakes; however, Louisiana pinesnakes have the
largest hatchling size in the genus, giving young snakes an advantage
in ingesting larger prey like pocket gophers at a younger age compared
to other co-occurring snake species.
As well as serving as prey items, Baird's pocket gophers also
create the burrow systems in which Louisiana pinesnakes are most
frequently found (Rudolph and Conner 1996, p. 2; Rudolph and Burgdorf
1997, p. 117; Himes 1998, p. 42; Rudolph et al. 1998, p. 146; Rudolph
et al. 2002, p. 62; Himes et al. 2006, p. 107). Louisiana pinesnakes
use pocket gopher burrow systems as nocturnal and diurnal refugia and
winter hibernacula, and to escape from predators and fire (Rudolph and
Burgdorf 1997, p. 117; Rudolph et al. 1998, p. 147; Ealy et al. 2004,
p. 386; Rudolph et al. 2007 p. 561; Pierce et al. 2014, p. 140). Active
Louisiana
[[Page 60586]]
pinesnakes occasionally use debris, logs, and low vegetation as
temporary surface shelters, and decayed or burned stumps, or nine-
banded armadillo (Dasypus novemcinctus) burrows, as underground refugia
(Rudolph and Burgdorf 1997, p. 117; Himes 1998, p. 26; Ealy et al.
2004, pp. 386, 389).
In summary, the Louisiana pinesnake relies on Baird's pocket
gophers as a primary prey item and uses pocket gopher burrows as
refugia and hibernacula. Therefore, based on the information in the
previous paragraphs, we identify adequate Baird's pocket gopher
populations as a necessary biological feature for the species.
Soil Characteristics
Louisiana pinesnakes occur most often in sandy soils within open-
canopy pine forest habitat (Wagner et al. 2014, p. 152). In addition to
suitable forest structure and herbaceous vegetation, specific soil
characteristics are an important determinant of Louisiana pinesnake
occurrence (Wagner et al. 2014, entire). These well-drained soil types
are characterized by a high sand content and a low water table (Duran
2010, p. 11; Wagner et al. 2014, p. 152). Louisiana pinesnakes are
efficient burrowers, as indicated by the species' pointed snout and
large rostral scale on the tip of the nose (Conant and Collins 1991,
pp. 201-202). In addition, Louisiana pinesnakes can excavate their own
burrows, although they are closely associated with pocket gopher burrow
systems. The Louisiana pinesnake's preferred prey, pocket gophers, also
prefer well-drained, sandy soils with low clay content in the topsoil
(Davis et al. 1938, p. 414).
Summary of Essential Physical or Biological Features
We derive the specific physical or biological features essential to
the conservation of the Louisiana pinesnake from studies of this
species' habitat, ecology, and life history as described below.
Additional information can be found in the proposed listing rule (81 FR
69454; October 6, 2016) and final listing rule (83 FR 14958; April 6,
2018). We have determined that the following physical or biological
features are essential to the conservation of the Louisiana pinesnake:
(i) Upland natural pine habitats that contain open-canopy stands of
longleaf, shortleaf, slash, or loblolly pine trees that have:
(A) Low midstory tree density;
(B) Low midstory pine tree basal area;
(C) Low scrub/shrub cover; and
(D) Abundant, diverse, and native herbaceous vegetative
groundcover, including a mix of grasses and forbs.
(ii) Suitable habitat in large (7,166 ac (2,900 ha)), contiguous
blocks.
(iii) Soils with high sand content and a low water table.
(iv) An adequate Baird's pocket gopher population, as evidenced by
abundant and widely distributed active mound complexes.
Special Management Considerations or Protection
When designating critical habitat, we assess whether the specific
areas within the geographical area occupied by the species at the time
of listing contain features which are essential to the conservation of
the species and which may require special management considerations or
protection. The features essential to the conservation of the Louisiana
pinesnake may require special management considerations or protection
to reduce the following threats: Loss of upland pine forest with an
open canopy, reduced midstory, and abundant herbaceous ground cover;
fragmentation of large areas of upland pine forest habitat; and
subsurface disturbance that affects the Baird's pocket gopher. For a
detailed discussion of threats, see Summary of Factors Affecting the
Species in our proposed listing rule (81 FR 69454, October 6, 2016, pp.
81 FR 69464-69472). Additional information may be found in the final
listing rule (83 FR 14958; April 6, 2018).
High-quality natural upland pine forest habitat for the Louisiana
pinesnake is generally characterized by a high, open canopy and shallow
litter and duff layers. The forest structure is maintained by frequent,
low-intensity fires, which, in turn, restrict a woody midstory and
promote the flowering and seed production of fire-stimulated
groundcover plants (Oswalt et al. 2012, pp. 2-3). The Louisiana
pinesnake is historically associated with unfragmented natural upland
pine forests, which were maintained by natural processes (e.g., fire)
and include abundant herbaceous vegetation necessary to support the
species' primary prey, the Baird's pocket gopher (Himes 1998, p. 43;
Sulentich et al. 1991, p. 3; Rudolph and Burgdorf 1997, p. 17). One of
the primary threats to the Louisiana pinesnake is the continuing loss
and degradation of the open pine forest habitat that supports the
Baird's pocket gopher, including the decline in or absence of fire on
the landscape. Prescribed fire reduces midstory and understory
hardwoods and promotes abundant herbaceous groundcover in the natural
communities of the upland dominant pine ecosystem where the Louisiana
pinesnake most often occurs. In the absence of regularly recurring,
unsuppressed fires, open pine forest habitat requires active management
activities to produce and maintain Louisiana pinesnake habitat. These
activities, such as thinning, prescribed burning, reforestation and
afforestation, midstory woody vegetation control, herbaceous vegetation
(especially forbs) enhancement, and harvest (particularly in stands
that require substantial improvement) are necessary to maintain or
restore forests to the conditions that are suitable for pocket gophers
and Louisiana pinesnakes.
Forested areas managed with incompatible silvicultural practices
that cause substantial subsurface disturbance and preclude continual,
robust herbaceous vegetation growth have significant reductions in
Baird's pocket gopher populations and may no longer support viable
Louisiana pinesnake populations (Rudolph et al. 2006, p. 470). The
Baird's pocket gopher forages on herbaceous vegetation and does not
occur in areas with insufficient herbaceous vegetation. For example,
pine plantation sites, which are generally lacking in herbaceous
vegetation, are expected to support lower densities of Baird's pocket
gophers than stands managed for a healthy understory. In addition,
disturbance of subsoils (particularly those deeper than 4 in (10 cm))
may directly impact pocket gophers and Louisiana pinesnakes within
burrows. Special management of the upland pine forest will ensure an
open canopy, reduced midstory, and abundant herbaceous groundcover
required for Louisiana pinesnake viability. Practices that create or
maintain large areas of open-canopy forest with abundant herbaceous
groundcover necessary for the Louisiana pinesnake include frequent
prescribed burning (1- to 3-year fire interval) with seasonal
variability; avoidance of intensive site preparation or other
activities that disturb or destroy herbaceous vegetation; avoidance of
bedding practices (mounding of tilled soil prior to planting); reduced
planting densities or regularly planned stem thinning; avoidance of
destruction of underground structure, such as pocket gopher burrows,
small mammal burrows, and stump holes; and protection of upland pine
forest habitat from development and new road construction.
The Louisiana pinesnake requires large, intact, unfragmented areas
of high-quality, open-canopy upland pine habitat for sufficient
viability. Within
[[Page 60587]]
the intact, unfragmented upland pine habitat, not all areas are
expected to fully support all Louisiana pinesnake needs at all times.
However, the landscape-level habitat heterogeneity provided by intact,
unfragmented areas (particularly when those areas are fire-managed)
allows the species to select habitats and microhabitats that meet
species' life-history requirements and provide corridors for movement.
As described above in Space for Individual and Population Growth and
for Normal Behavior, these intact, unfragmented forested areas allow
space for Louisiana pinesnake populations to maintain adequate home
ranges, support species' dispersal, and allow movement to areas of
higher-quality habitat with more resources available in periods of
adverse conditions. In addition, large areas of intact, unfragmented
upland pine habitats support sufficient Baird's pocket gopher
populations spatially distributed within the habitat.
Fragmentation of intact, unfragmented habitat by roads also causes
disruption in Louisiana pinesnake movements to seek out feeding,
breeding, or sheltering resources due to avoidance of these areas by
the species (Clark et al. 2010, pp. 1059, 1067). In addition, roads
surrounding and traversing the remaining Louisiana pinesnake habitat
pose a direct threat to the species through vehicle strike mortality.
Special management considerations may be required within critical
habitat areas to address these threats. Management activities that
could minimize or ameliorate these threats include, but are not limited
to: (1) Application of prescribed fire and other forest management
activities (e.g., thinning, midstory control, harvest) to promote a
diverse, abundant herbaceous groundcover and open-canopy pine habitat;
(2) minimization of ground and subsurface disturbance from silviculture
practices such as bedding or disking; (3) protection of large, intact
areas of upland pine forest habitat from development and new road
construction; and (4) establishment of additional populations through
captive rearing and translocation efforts. These management activities
would protect the physical or biological features for the species by
maintaining or restoring open-canopy pine habitat; reducing effects of
silviculture practices on the Baird's pocket gopher; maintaining large,
contiguous areas of open pine habitat by decreasing fragmentation; and
improving population resiliency and species redundancy across the range
of the Louisiana pinesnake.
Criteria Used To Identify Critical Habitat
As required by section 4(b)(2) of the Act, we use the best
scientific data available to designate critical habitat. In accordance
with the Act and our implementing regulations at 50 CFR 424.12(b), we
review available information pertaining to the habitat requirements of
the species and identify specific areas within the geographical area
occupied by the species at the time of listing and any specific areas
outside the geographical area occupied by the species to be considered
for designation as critical habitat.
To determine and select appropriate occupied areas that contain the
physical or biological features essential to the conservation of the
species or areas otherwise essential for the conservation of the
Louisiana pinesnake, we developed a conservation strategy for the
species. The goal of our conservation strategy for the Louisiana
pinesnake is to improve the Louisiana pinesnake's viability through
increases in resiliency, redundancy, and representation. The role of
critical habitat in achieving this conservation goal is to identify the
specific areas within the species' range that provide essential
physical or biological features, without which rangewide resiliency,
redundancy, and representation could not be achieved. The current
distribution of the Louisiana pinesnake is reduced from its historical
distribution, and we anticipate that recovery will require not only
continued protection of the remaining extant populations and upland
pine habitat but also reintroduction of populations in additional areas
of the species' historical range to ensure there are adequate numbers
of snakes in stable populations and that these populations occur over a
wide geographic area. This strategy will help to ensure that
catastrophic events, such as high-intensity wildfire or intense drought
(which can remove or reduce suitable habitat, herbaceous vegetation,
and prey in upland pine habitat), cannot simultaneously affect all
known populations. In formulating the proposed critical habitat
designation, we also took into account rangewide recovery
considerations, such as maintaining or improving existing genetic
diversity and striving for representation of all major portions of the
species' current range, representation across the species' historical
range, and the potential feasibility of augmentation and reintroduction
efforts in suitable Louisiana pinesnake habitat. These considerations
require an understanding of the fundamental parameters of the species'
biology and ecology based on well-accepted conservation-biology and
ecological principles for conserving species and their habitats
(Carroll et al. 1996, pp. 1-12; Shaffer and Stein 2000, pp. 301-321;
Tear et al. 2005, pp. 835-849; Groom et al. 2006, pp. 419-551; Redford
et al. 2011, pp. 39-48; Wolf et al. 2015, pp. 200-207).
We are proposing to designate critical habitat in areas within the
geographical area occupied by the species at the time of listing in
2018. We also are proposing to designate one area outside the
geographical area occupied by the species because we have determined
that the area is essential for the conservation of the species. This
area contains suitable upland pine habitat for the species but is not
known to be currently occupied by the species. With only seven known
occupied areas, we have determined that this unoccupied area is
essential for the conservation of the species. Establishment of new
populations in unoccupied areas is necessary to ensure that there are
adequate numbers of snakes in multiple populations over a wide
geographic area, so that catastrophic events, such as high-severity
wildfire or intense drought, would be less likely to simultaneously
affect all known populations.
All occupied units proposed for critical habitat designation were
occupied at the time of listing and are currently occupied by the
Louisiana pinesnake, contain some or all of the physical or biological
features essential to the conservation of the species (including large,
contiguous blocks of upland natural pine habitat; suitable soils; and
Baird's pocket gopher populations). The unoccupied unit proposed for
critical habitat designation was historically occupied by the Louisiana
pinesnake, but was not occupied at the time of listing. We have
determined it is essential for the conservation of the Louisiana
pinesnake because it will provide additional areas for Louisiana
pinesnake recovery actions, including population establishment. The
unoccupied unit also contains one or more of the physical or biological
features that are essential to the conservation of the species as
described above.
Guided by our conservation strategy goals, we determined which
occupied and unoccupied areas to include as proposed critical habitat
for the Louisiana pinesnake by focusing on the occupied habitat areas
identified in our previous Federal actions for the species (proposed
listing rule (81 FR 69454;
[[Page 60588]]
October 6, 2016), final listing rule (83 FR 14958; April 6, 2018),
proposed 4(d) rule (83 FR 14836; April 6, 2018), and final 4(d) rule
(85 FR 11297; February 27, 2020)); areas that are presently
contributing to the viability of the species but in which resiliency
can be improved; and other, unoccupied areas within the historical
range of the species where reintroductions of Louisiana pinesnake will
improve species' redundancy, which is essential for the conservation of
the species.
We have determined that all areas known to be occupied at the time
of listing and of sufficient areal extent should be proposed for
critical habitat designation. However, recognizing that occupied
habitat alone is not adequate for the conservation of the Louisiana
pinesnake, we also used habitat and historical occurrence data to
identify the historical range of the species and necessary habitat
features to help us determine which unoccupied habitat areas are
essential for the conservation of the species. To determine the general
extent, location, and boundaries of critical habitat, we used Esri
ArcGIS mapping software for mapping and calculating areas along with
spatial data layers including: (1) Historical and current records of
Louisiana pinesnake occurrences, distribution, and habitat requirements
found in publications, agency reports, and personal communications; (2)
geographic information system (GIS) data showing the estimated occupied
habitat areas (EOHAs) and land ownership boundaries; (3) GIS data
showing the location and extent of relatively unfragmented,
continuously (1985 to 2015) forested areas (Hibbitts et al. 2016,
entire); and (4) GIS data depicting soils and vegetation type to
determine the presence of physical or biological features (U.S.
Department of Agriculture 2020, unpaginated).
Areas Occupied at the Time of Listing
For the purposes of the proposed critical habitat designation, and
for areas within the geographical area occupied by the species at the
time of listing, we determined a unit to be occupied at the time of
listing based on occurrence records used to articulate the EOHAs (i.e.,
observations or collections between 1993 and 2018) and subsequent
surveys conducted prior to listing. Based on the best available
scientific data, we determined that all currently known occupied
habitat for the Louisiana pinesnake was also occupied by the species at
the time of listing, and that these areas contain the physical or
biological features essential to the conservation of the species which
may require special management considerations or protection.
To delineate proposed critical habitat units, we first determined
the area occupied by the Louisiana pinesnake at the time of listing
(the April 6, 2018, final rule to list the species (83 FR 14958) had an
effective date of May 7, 2018). We began by examining the species'
occurrence records used to delineate the EOHAs referenced in both the
listing and 4(d) rules. The EOHAs consist of a minimum convex polygon
(polygon) drawn around a cluster of post-1993 (after extensive trapping
and monitoring began) occurrence records meeting inclusion criteria
(with a 1-km buffer around the polygon to account for home range
activity around the occurrence record locations of the snakes in the
cluster). The Service originally identified EOHAs in 2008, in an effort
to focus conservation actions in areas where the Louisiana pinesnake is
most likely to occur. The boundaries of EOHAs do not encompass all
areas potentially occupied by the species. Most EOHA occurrence records
are trap captures. Therefore, the information provided on Louisiana
pinesnake's distribution and abundance is limited by the extent of
trapping efforts, primarily the numbers of traps and targeted trapping
in locations designed to improve catch rates. As a result, the areal
extent of the EOHAs alone also cannot be used to estimate the species'
occupied range. We note that not all areas within the EOHAs comprise
suitable habitat, but not all suitable habitat is likely to be
occupied. Additionally, because the EOHAs are based solely on
occurrence records and not on habitat conditions such as soil type or
vegetation structure, we used additional data specific to the Louisiana
pinesnake's habitat associations to incorporate the habitat used by the
species and refine EOHAs. These modeled areas are considered occupied
by the species based on the continuous nature of the habitat and are
within the dispersal distance and home ranges of the species.
For areas within the geographic area occupied by the species at the
time of listing, we delineated critical habitat unit boundaries using
the following criteria:
(1) We compiled all available current and historical occurrence
data records meeting the inclusion criteria of the EOHAs as described
in the proposed listing rule (81 FR 69454; October 6, 2016). The EOHAs
were delineated by the Service and partners in 2016. We relied on
Louisiana pinesnake verified occurrence records obtained between 1993
and 2015 when delineating EOHAs ahead of the proposed listing rule. We
excluded all records prior to 1993 (before extensive trapping began)
and records older than 11 years (from the time of 2015 analysis; 11
years is the estimated Louisiana pinesnake generational turnover period
(Marti 2014, pers. comm.)), when traps within 0.6 mi (1 km) of those
records had been unproductive for 5 years of trap effort following the
date of the records. In addition to the EOHAs, we also considered
occurrence records obtained after the EOHA delineation (2016-2018).
(2) We evaluated habitat suitability of terrestrial areas
contiguous with identified EOHAs that contain well-drained sandy soils
with low clay content in the topsoil and a low water table and coarse
scale suitable vegetation type (forest, shrub, and herbaceous) (Davis
et al. 1938, p. 414; Wagner et al. 2014, p. 152; Ealy et al. 2004, p.
389).
(3) We selected areas of relatively unfragmented, continuously
forested (assumed highest quality) habitat greater than 2,000 ha (4,942
ac) as identified by the Texas A&M University Natural Resources
Institute and the U.S. Forest Service (USFS) habitat suitability model
(Hibbitts et al. 2016, entire; Ryberg et al. 2016, entire). We based
this criteria on the species' need for large, unfragmented areas of
upland pine habitat of at least 2,900 ha (7,166 ac) as described in
Space for Individual and Population Growth and for Normal Behavior. To
allow for uncertainty in the model and variability of habitat
conditions, we selected an area smaller than the species' requirement
as a refining criteria for critical habitat unit delineation.
Using the approaches described above, we delineated a total of
seven areas considered to be occupied at the time of listing for the
Louisiana pinesnake. These areas have well-documented, recent
occurrence information. Two of these areas consist primarily of lands
within the Joint Readiness Training Center at Peason Ridge and Fort
Polk. The entire Joint Readiness Training Center at Peason Ridge and a
portion of Fort Polk are covered by an approved integrated natural
resources management plan (INRMP) that provides benefits to the
Louisiana pinesnake and its habitat and thus are exempted from the
proposed designation under section 4(a)(3)(B)(i) of the Act (see
Exemptions, below). Of the seven delineated occupied areas, the Peason
Ridge unit is exempted from critical habitat designation. We are
proposing to designate as critical habitat for the Louisiana pinesnake
the five
[[Page 60589]]
remaining units occupied at the time of listing; they are described
below (see Proposed Critical Habitat Designation, below).
Areas Unoccupied at the Time of Listing
We evaluated unoccupied areas within the species' range with
historical occurrences and identified areas essential for the
conservation of the species.
For areas outside the geographic area occupied by the species at
the time of listing, we delineated critical habitat unit boundaries
using the criteria described above to delineate occupied critical
habitat with the additional following criteria:
We evaluated unoccupied areas of the Louisiana pinesnake's range
with historical occurrences or occurrences not meeting the EOHA
criteria, appropriate soil types and coarse scale suitable vegetation
type, and areas of relatively unfragmented, continuously forested
habitat as described above in the evaluation of occupied areas. The
proposed unoccupied unit is almost entirely on USFS lands in the
Evangeline Ranger District of the Kisatchie National Forest, with a
small number of inholdings in private ownership. The USFS has managed
habitat in the Kisatchie National Forest in a way that is compatible
with Louisiana pinesnake's life-history requirements, has been engaged
in reintroduction efforts with this species since 2010, and is expected
to remain an engaged partner in species recovery. The unoccupied unit
constitutes habitat for the Louisiana pinesnake based on the
appropriate soil type, habitat condition, and management actions within
the unit. Further, the following physical or biological features occur
within the unoccupied unit: (1) Upland natural pine habitats that
contain open-canopy stands of longleaf, shortleaf, slash, or loblolly
pine trees that have low midstory tree density, low midstory pine tree
basal area, low scrub/shrub cover; and an abundant, diverse, and native
herbaceous vegetative groundcover, including a mix of grasses and
forbs; (2) suitable habitat in large (7,166 ac (2,900 ha)), contiguous
blocks; (3) soils with high sand content and a low water table.
Although we do not have specific information on Baird's pocket gopher
populations, the habitat conditions are expected to support the gopher.
Therefore, we have reasonable certainty that this unit is essential for
the conservation of the Louisiana pinesnake.
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 the Louisiana
pinesnake. 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 propose to designate as critical habitat lands that we have
determined are occupied at the time of listing (i.e., currently
occupied) and that contain one or more of the physical or biological
features that are essential to support the life-history processes of
the species. We have also identified, and propose for designation as
critical habitat, unoccupied areas that are essential for the
conservation of the species.
Units are proposed for designation based on one or more of the
physical or biological features being present to support the Louisiana
pinesnake's life-history processes. Some units contain all of the
identified physical or biological features and support multiple life-
history processes. Some units contain only some of the physical or
biological features necessary to support the Louisiana pinesnake's
particular use of that habitat. However, all units are of sufficient
size to sustain a Louisiana pinesnake population.
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 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-
2021-0166 and on our internet site, <a href="https://www.fws.gov/office/louisiana-ecological-services/library">https://www.fws.gov/office/louisiana-ecological-services/library</a>.
Proposed Critical Habitat Designation
We are proposing six units as critical habitat for the Louisiana
pinesnake. The critical habitat areas we describe below constitute our
current best assessment of areas that meet the definition of critical
habitat for the Louisiana pinesnake. The six units we propose as
critical habitat are: (1) Bienville, (2) Catahoula, (3) Evangeline, (4)
Fort Polk/Vernon, (5) Scrappin' Valley, and (6) Angelina. Table 1 shows
the proposed critical habitat units and the approximate area of each
unit.
Table 1--Proposed Critical Habitat Units for the Louisiana Pinesnake
[Area estimates reflect all land within critical habitat unit boundaries.]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Ownership (acres (hectares))
Unit number and name --------------------------------------------------- Total area (acres Occupied?
Federal State Private (hectares))
--------------------------------------------------------------------------------------------------------------------------------------------------------
1. Bienville.................................. 0 (0) 333 (135) 60,750 (24,585) 61,083 (24,720) Yes.
2. Catahoula.................................. 24,436 (9,889) 0 (0) 1,967 (796) 26,403 (10,685) Yes.
3. Evangeline................................. 54,507 (22,058) 0 (0) 2,716 (1,099) 57,223 (23,157) No.
4. Fort Polk/Vernon........................... 42,897 (17,360) 0 (0) 892 (361) 43,789 (17,721) Yes.
5. Scrappin' Valley........................... 0 (0) 0 (0) 5,058 (2,047) 5,058 (2,047) Yes.
6. Angelina................................... 14,424 (5,837) 0 (0) 1,542 (624) 15,966 (6,461) Yes.
---------------------------------------------------------------------------------------------------------
Total..................................... 136,264 (55,144) 333 (135) 72,925 (29,512) 209,520 (84,790)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.
[[Page 60590]]
More than half of the proposed critical habitat for the Louisiana
pinesnake (129,902 ac (52,569 ha), or 62 percent) falls on USFS lands
managed as habitat management units (HMU) to benefit the Louisiana
pinesnake. The USFS land and resource management plans and the 2013
Programmatic Candidate Conservation Agreement with Assurances with the
Louisiana Department of Wildlife and Fisheries (LDWF CCAA) provide
guidelines on habitat management to benefit Louisiana pinesnake (and
red-cockaded woodpecker, Picoides borealis) through management of
upland pine habitat, including the use of tree thinning, chemical and
mechanical hardwood and shrub removal, prescribed fire, and other
actions to maintain and restore upland pine habitat (USFS 1996, pp.
107-134; USFS 1999, pp. 2-61 to 2-73; CCA 2003, entire).
We present brief descriptions of all proposed units, and reasons
why they meet the definition of critical habitat for the Louisiana
pinesnake, below.
Unit 1: Bienville
Unit 1 consists of 61,083 ac (24,720 ha) in central Bienville
Parish, Louisiana, west of Highway 155 and east of Highway 507,
approximately 40 mi (64 km) southeast of Shreveport, Louisiana. In Unit
1, approximately 60,750 ac (24,585 ha) are located on private lands.
Lands in State ownership in this unit include the 333-ac (135-ha) Big
Cypress State Park (Louisiana Department of Culture, Recreation, and
Tourism). Approximately 5,388 ac (2,180 ha) in this proposed unit are
currently enrolled in the Service-approved and permitted LDWF CCAA,
which includes conservation measures that provide a net benefit to the
Louisiana pinesnake. This unit was occupied at the time of listing and
is currently occupied by the Louisiana pinesnake. Unit 1 contains all
of the physical or biological features essential to the conservation of
the Louisiana pinesnake.
The physical or biological features essential to the conservation
of the species in Unit 1 may require special management considerations
or protection due to the following: Loss of upland pine forest with an
open canopy, reduced midstory, and abundant herbaceous ground cover;
fragmentation of large areas of upland pine forest habitat; and
subsurface disturbance that affects the Baird's pocket gopher, as
described above in Special Management Considerations or Protection.
Management activities in upland pine forest habitat that could minimize
or ameliorate these threats in Unit 1 include, but are not limited to:
(1) Application of prescribed fire and other forest management
activities (e.g., thinning, midstory control, harvest) to promote a
diverse, abundant herbaceous groundcover and open-canopy pine habitat;
(2) implementation of silviculture best management practices that
minimize subsurface disturbance; and (3) minimization of new road
construction and closure of unused roads, particularly following timber
harvest.
As noted above, approximately 5,388 ac (2,180 ha) in Unit 1 are
lands in private ownership enrolled in the Service-approved and
permitted LDWF CCAA (2013). All or some of these lands may be excluded
from the final critical habitat designation under section 4(b)(2) of
the Act (see Consideration of Other Relevant Impacts under
Consideration of Impacts under Section 4(b)(2) of the Act later in this
proposed rule). Following publication of this proposed critical habitat
rule, some lands in private ownership in Unit 1 may be enrolled in the
Louisiana Pinesnake Programmatic Safe Harbor Agreement, currently under
development. All or some of these lands may be excluded from the final
critical habitat designation under section 4(b)(2) of the Act (see
Consideration of Other Relevant Impacts under Consideration of Impacts
under Section 4(b)(2) of the Act later in this proposed rule).
Unit 2: Catahoula
Unit 2 consists of 26,403 ac (10,685 ha) located in Grant Parish,
Louisiana. In Unit 2, 1,967 ac (796 ha) are located on private lands.
Approximately 24,436 ac (9,889 ha) are located within the Kisatchie
National Forest--Catahoula Ranger District. The USFS lands in Unit 2
encompass an HMU dedicated to the Louisiana pinesnake. Within the HMU,
management and conservation actions implemented to benefit the
Louisiana pinesnake include tree thinning, chemical and mechanical
hardwood and shrub removal, and prescribed fire. This unit was occupied
at the time of listing and is currently occupied by the Louisiana
pinesnake. Unit 2 contains at least three of the physical or biological
features essential to the conservation of the Louisiana pinesnake. The
presence of Baird's pocket gopher mounds has not been assessed, but the
habitat is suitable for this species, and pocket gophers are expected
to occur in Unit 2.
The physical or biological features essential to the conservation
of the species in Unit 2 may require special management considerations
or protection due to the following: Loss of upland pine forest with an
open canopy, reduced midstory, and abundant herbaceous ground cover;
fragmentation of large areas of upland pine forest habitat; and
subsurface disturbance that affects the Baird's pocket gopher, as
described above in Special Management Considerations or Protection.
Special management considerations or protection may be required within
Unit 2 to alleviate impacts from suboptimal habitat management
resulting in increased woody understory and midstory vegetation,
including actions to restore or maintain suitable forest conditions for
the species. Management activities in upland pine habitat that could
benefit the species and habitat in this subunit include, but are not
limited to: (1) Application of prescribed fire and other forest
management activities to promote a diverse, abundant herbaceous
groundcover and open-canopy pine habitat; (2) implementation of
silviculture best management practices that minimize subsurface
disturbance; and (3) consideration of upland pine habitat in planning
development and new road construction. These management activities
would protect the physical or biological features for the species by
maintaining or restoring open-canopy pine habitat; reducing effects of
silviculture practices on the Baird's pocket gopher; and maintaining
large, contiguous areas of open pine habitat by decreasing
fragmentation.
Following publication of this proposed critical habitat rule, some
lands in private ownership in Unit 2 may be enrolled in the Louisiana
Pinesnake Programmatic Safe Harbor Agreement under development. All or
some of these lands may be excluded from the final critical habitat
designation under section 4(b)(2) of the Act (see Consideration of
Other Relevant Impacts under Consideration of Impacts under Section
4(b)(2) of the Act later in this proposed rule).
Unit 3: Evangeline
Unit 3 consists of 57,223 ac (23,157 ha) located in Rapides Parish,
Louisiana. In Unit 3, approximately 2,716 ac (1,099 ha) are located on
private lands. Approximately 54,507 ac (22,058 ha) occur within the
Kisatchie National Forest--Calcasieu Ranger District--Evangeline Unit.
The USFS lands in Unit 3 encompass an HMU dedicated to the Louisiana
pinesnake. Within the HMU, management and conservation actions
implemented to benefit the Louisiana pinesnake include tree thinning,
chemical and mechanical hardwood and shrub removal, and prescribed
fire. This unit was historically occupied by the Louisiana pinesnake
and contains at least three
[[Page 60591]]
physical or biological features essential to the conservation of the
Louisiana pinesnake. The presence of Baird's pocket gopher mounds has
not been assessed, but the habitat is suitable for this species, and
pocket gophers are expected to occur in Unit 3.
This unit is currently unoccupied by the Louisiana pinesnake but is
essential for the conservation of the species because it serves to
protect habitat needed to recover the species by reestablishing wild
populations within the historical range of the species. In addition,
this unit contains at least three of the physical or biological
features, is protected and actively managed as an HMU to benefit the
Louisiana pinesnake, and has an appropriate spatial distribution
falling within the range of the species. We have also determined that
the unoccupied area constitutes habitat for the Louisiana pinesnake
because it contains the appropriate soil type, habitat condition, and
management actions within the unit. Further, the following physical or
biological features occur within the unoccupied unit: (1) Upland
natural pine habitats that contain open-canopy stands of longleaf,
shortleaf, slash, or loblolly pine trees that have low midstory tree
density, low midstory pine tree basal area, low scrub/shrub cover; and
an abundant, diverse, and native herbaceous vegetative groundcover,
including a mix of grasses and forbs; (2) suitable habitat in large
(7,166 ac (2,900 ha)), contiguous blocks; (3) soils with high sand
content and a low water table. Although we do not have specific
information regarding Baird's pocket gopher populations on this unit,
the habitat conditions are expected to support adequate prey
populations.
Following publication of this proposed critical habitat rule, some
lands in private ownership in Unit 3 may be enrolled in the Louisiana
Pinesnake Programmatic Safe Harbor Agreement under development. All or
some of these lands may be excluded from the final critical habitat
designation under section 4(b)(2) of the Act (see Consideration of
Other Relevant Impacts under Consideration of Impacts under Section
4(b)(2) of the Act later in this proposed rule).
Unit 4: Fort Polk/Vernon
Unit 4 consists of 43,789 ac (17,721 ha) located in Vernon Parish,
Louisiana. In Unit 4, approximately 892 ac (361 ha) occur on lands in
private ownership. The remaining 42,897 ac (17,360 ha) of Unit 4 is
owned by the USFS and is within the Joint Readiness Training Center and
Fork Polk, Louisiana (Fort Polk). This unit was occupied at the time of
listing and is currently occupied by the Louisiana pinesnake. Unit 4
contains all of the physical or biological features essential to the
conservation of the Louisiana pinesnake.
The physical or biological features essential to the conservation
of the species in Unit 4 may require special management considerations
or protection due to the following: Loss of upland pine forest with an
open canopy, reduced midstory, and abundant herbaceous ground cover;
fragmentation of large areas of upland pine forest habitat; and
subsurface disturbance that affects the Baird's pocket gopher, as
described above in Special Management Considerations or Protection.
Special management considerations or protection may be required within
Unit 4 to alleviate impacts from suboptimal habitat management
resulting in increased woody understory and midstory vegetation,
including actions to restore or maintain suitable forest conditions for
the species. Management activities in upland pine habitat that could
benefit the species and habitat in this subunit include, but are not
limited to: (1) Application of prescribed fire and other forest
management activities to promote a diverse, abundant herbaceous
groundcover and open-canopy pine habitat; (2) implementation of
silviculture best management practices that minimize subsurface
disturbance; and (3) consideration of upland pine habitat in planning
development and new road construction. These management activities
would protect the physical or biological features for the species by
maintaining or restoring open-canopy pine habitat; reducing effects of
silviculture practices on the Baird's pocket gopher; and maintaining
large, contiguous areas of open pine habitat by decreasing
fragmentation.
The 42,897 ac (17,360 ha) of USFS-owned lands permitted for use by
Fort Polk will be considered for exclusion from final critical habitat
designation. All or some of these lands may be excluded from the final
critical habitat designation under section 4(b)(2) of the Act (see
Consideration of National Security Impacts under Consideration of
Impacts under Section 4(b)(2) of the Act later in this proposed rule).
Additionally, following publication of this proposed critical habitat
rule, some lands in private ownership in Unit 4 may be enrolled in the
Louisiana Pinesnake Programmatic Safe Harbor Agreement under
development. All or some of these lands may be excluded from the final
critical habitat designation under section 4(b)(2) of the Act (see
Consideration of Other Relevant Impacts under Consideration of Impacts
under Section 4(b)(2) of the Act later in this proposed rule).
Unit 5: Scrappin' Valley
Unit 5 is located in northern Newton County, Texas. The entire
5,058 ac (2,047 ha) in this unit are located on private lands. The
Nature Conservancy (TNC) holds 1,675 ac (678 ha) in Unit 5 in a long-
term conservation easement and implements conservation actions on the
easement. This unit was occupied at the time of listing and is
currently occupied by the Louisiana pinesnake. Unit 5 contains at least
three of the physical or biological features essential to the
conservation of the Louisiana pinesnake. The presence of Baird's pocket
gopher mounds has not been assessed, but the habitat is suitable for
this species, and pocket gophers are expected to occur in Unit 5.
The physical or biological features essential to the conservation
of the species in Unit 5 may require special management considerations
or protection due to the following: Loss of upland pine forest with an
open canopy, reduced midstory, and abundant herbaceous ground cover;
fragmentation of large areas of upland pine forest habitat; and
subsurface disturbance that affects the Baird's pocket gopher, as
described above in Special Management Considerations or Protection.
Management activities in upland pine forest habitat that could minimize
or ameliorate these threats in Unit 5 include, but are not limited to:
(1) Application of prescribed fire and other forest management
activities (e.g., thinning, midstory control, harvest) to promote a
diverse, abundant herbaceous groundcover and open-canopy pine habitat;
(2) implementation of silviculture best management practices that
minimize subsurface disturbance; and (3) minimization of new road
construction and closure of unused roads, particularly following timber
harvest.
Of the lands in private ownership, TNC holds 1,675 ac (678 ha) in
Unit 5 in a long-term conservation easement with conservation measures
in place expected to benefit the Louisiana pinesnake, including
prescribed fire. All or some of these lands may be excluded from the
final critical habitat designation under section 4(b)(2) of the Act
(see Consideration of Other Relevant Impacts under Consideration of
Impacts under Section 4(b)(2) of the Act later in this proposed rule).
Additionally, following publication of this proposed critical habitat
rule, some lands in private ownership in Unit 5 may be enrolled in the
Louisiana
[[Page 60592]]
Pinesnake Programmatic Safe Harbor Agreement under development. All or
some of these lands may be excluded from the final critical habitat
designation under section 4(b)(2) of the Act (see Consideration of
Other Relevant Impacts under Consideration of Impacts under Section
4(b)(2) of the Act later in this proposed rule).
Unit 6: Angelina
Unit 6 is comprised of 15,966 ac (6,461 ha) located in northwestern
Jasper and southeastern Angelina Counties, Texas. Within Unit 6,
approximately 1,542 ac (624 ha) are lands in private ownership.
Approximately 14,424 ac (5,837 ha) are USFS lands and fall within the
Angelina National Forest; the western portion of Unit 6 falls within
the Upland Island Wilderness Area in the Angelina National Forest. The
USFS lands in Unit 6 encompass an HMU dedicated to conservation efforts
to benefit the Louisiana pinesnake. Within the HMU, management and
conservation actions implemented to benefit the Louisiana pinesnake
include tree thinning, chemical and mechanical hardwood and shrub
removal, and prescribed fire. This unit was occupied at the time of
listing and is currently occupied by the Louisiana pinesnake. Unit 6
contains at least three of the physical or biological features
essential to the conservation of the Louisiana pinesnake. The presence
of Baird's pocket gopher mounds has not been assessed, but the habitat
is suitable for this species, and pocket gophers are expected to occur
in Unit 6.
The physical or biological features essential to the conservation
of the species in Unit 6 may require special management considerations
or protection due to the following: Loss of upland pine forest with an
open canopy, reduced midstory, and abundant herbaceous ground cover;
fragmentation of large areas of upland pine forest habitat; and
subsurface disturbance that affects the Baird's pocket gopher, as
described above in Special Management Considerations or Protection.
Management activities in upland pine forest habitat that could minimize
or ameliorate these threats in Unit 6 include, but are not limited to:
(1) Application of prescribed fire and other forest management
activities (e.g., thinning, midstory control, harvest) to promote a
diverse, abundant herbaceous groundcover and open-canopy pine habitat;
(2) implementation of silviculture best management practices that
minimize subsurface disturbance; and (3) minimization of new road
construction and closure of unused roads, particularly following timber
harvest.
Following publication of this proposed critical habitat rule, some
lands in private ownership in Unit 6 may be enrolled in the Louisiana
Pinesnake Programmatic Safe Harbor Agreement under development. All or
some of these lands may be excluded from the final critical habitat
designation under section 4(b)(2) of the Act (see Consideration of
Other Relevant Impacts under Consideration of Impacts under Section
4(b)(2) of the Act later in this proposed rule).
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 revising the 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).
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
(33 U.S.C. 1251 et seq.) or a permit from the Service under section 10
of the Act) or that involve some other Federal action (such as funding
from the Federal Highway Administration, Federal Aviation
Administration, or the Federal Emergency Management Agency). Federal
actions not affecting listed species or critical habitat--and actions
on State, Tribal, local, or private lands that are not federally
funded, authorized, or carried out by a Federal agency--do not require
section 7 consultation.
Compliance with the requirements of section 7(a)(2) 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 Service Director's opinion, avoid the likelihood
of jeopardizing the continued existence of the listed species and/or
avoid the likelihood of destroying or adversely modifying critical
habitat.
Reasonable and prudent alternatives can vary from slight project
modifications to extensive redesign or relocation of the project. Costs
associated with implementing a reasonable and prudent alternative are
similarly variable.
Regulations at 50 CFR 402.16 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: (1) If the amount or extent of
taking specified in the incidental take statement is exceeded; (2) if
new information reveals effects of the action that may affect listed
species or critical
[[Page 60593]]
habitat in a manner or to an extent not previously considered; (3) 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 (4) 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 as a
whole for the conservation of the listed species. As discussed above,
the role of critical habitat is to support physical or biological
features essential to the conservation of a listed species and provide
for the conservation of the species.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe, in any proposed or final regulation that designates critical
habitat, activities involving a Federal action that may violate section
7(a)(2) of the Act by destroying or adversely modifying such habitat,
or that may be affected by such designation.
Activities that the Services may, during a consultation under
section 7(a)(2) of the Act, consider likely to destroy or adversely
modify critical habitat include, but are not limited to:
(1) Actions that would significantly alter the suitability of open-
canopy upland pine habitat in a manner incompatible with Louisiana
pinesnake's life-history requirements. Such activities could include,
but are not limited to: forest and silvicultural activities, such as
disking, bedding, and other management actions, that involve
substantial ground disturbance; conversion to densely stocked pine
plantations; and chemical applications (pesticides or herbicides) that
are either not applied in accordance with label directions or that are
not directly aimed at hazardous fuels reduction, midstory hardwood
control, or noxious weed control. These activities could destroy or
alter the pine forest habitats and refugia necessary for the growth and
development of Louisiana pinesnakes, and may reduce populations of the
snake's primary prey (Baird's pocket gopher), either through direct
extermination or through loss of the forage necessary to sustain the
prey base.
(2) Actions that would significantly fragment Louisiana pinesnake
habitat. Such activities could include, but are not limited to:
Conversion of upland pine forested habitat to other uses (agricultural,
urban/residential development) and construction of new structures or
roads. These activities could lead to degradation or elimination of
forest habitat, limit or prevent breeding opportunities for Louisiana
pinesnakes, limit access to familiar refugia or nesting sites within
individual home ranges, and increase the frequency of road mortality
from road crossings.
Exemptions
Application of Section 4(a)(3) of the Act
The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a)
required each military installation that includes land and water
suitable for the conservation and management of natural resources to
complete an INRMP by November 17, 2001. An INRMP integrates
implementation of the military mission of the installation with
stewardship of the natural resources found on the base. Each INRMP
includes:
(1) An assessment of the ecological needs on the installation,
including the need to provide for the conservation of listed species;
(2) A statement of goals and priorities;
(3) A detailed description of management actions to be implemented
to provide for these ecological needs; and
(4) A monitoring and adaptive management plan.
Among other things, each INRMP must, to the extent appropriate and
applicable, provide for fish and wildlife management; fish and wildlife
habitat enhancement or modification; wetland protection, enhancement,
and restoration where necessary to support fish and wildlife; and
enforcement of applicable natural resource laws.
The National Defense Authorization Act for Fiscal Year 2004 (Pub.
L. 108-136) amended the Act to limit areas eligible for designation as
critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16
U.S.C. 1533(a)(3)(B)(i)) provides that the Secretary shall not
designate as critical habitat any lands or other geographical areas
owned or controlled by the DoD, or designated for its use, that are
subject to an INRMP prepared under section 101 of the Sikes Act (16
U.S.C. 670a), if the Secretary determines in writing that such plan
provides a benefit to the species for which critical habitat is
proposed for designation.
We consult with the military on the development and implementation
of INRMPs for installations with listed species. We analyzed INRMPs
developed by military installations located within the range of the
proposed critical habitat designation for the Louisiana pinesnake to
determine if they meet the criteria for exemption from critical habitat
under section 4(a)(3) of the Act. The following areas are DoD lands
with completed, Service-approved INRMPs within the proposed critical
habitat designation.
Approved INRMPs
Joint Readiness Training Center at Peason Ridge and Fort Polk; 30,758
ac (12,447 ha)
The Joint Readiness Training Center at Peason Ridge and Fort Polk
is located in Natchitoches, Sabine, and Vernon parishes, Louisiana. The
installation is divided into two separate areas: Peason Ridge Training
Area (Peason Ridge) to the north and Fort Polk Military Reservation
(Fort Polk) to the south. Peason Ridge is located on DoD-owned lands
and is managed by the DoD in coordination with the LDWF. Fort Polk is
located on DoD-owned land and uses adjacent USFS property for training
under permit. These lands are managed by the DoD and the USFS in
coordination with the LDWF. The USFS-permitted lands are governed by a
special use permit and plan of operation effective from 2004 to 2024.
Fort Polk has a Service-approved INRMP, which serves as the principal
management plan governing all natural resource activities on DoD lands
on the Fort Polk and Peason Ridge installations. The INRMP for the
Joint Readiness Training Center at Peason Ridge and Fort Polk (Fort
Polk INRMP) covers fiscal years 2020 to 2024, and serves as the
principal management plan governing all natural resource activities on
DoD lands on the installations.
For several decades, the Fort Polk INRMP benefited the Louisiana
pinesnake through ongoing ecosystem management and active management of
red-cockaded woodpecker habitat, which provided habitat for Louisiana
pinesnake. More recently, the INRMP has included management actions
[[Page 60594]]
intended to specifically benefit the Louisiana pinesnake (U.S. Army
2020, p. 85). Among the goals and objectives listed in the Endangered
Species Management Component of the INRMP is habitat management for
rare, threatened, and endangered species, and the Louisiana pinesnake
is included in this plan. Management actions and elements that benefit
the Louisiana pinesnake and its habitat include: Management of upland
pine habitats within Louisiana pinesnake habitat management units in a
way compatible with the species' needs; Louisiana pinesnake monitoring
studies, surveys, and research on breeding habitat, diseases, and
behavior; implementation of awareness and education programs for the
public and soldiers to reduce snake mortality or collection; and
surveys for Baird's pocket gopher in advance of projects (U.S. Army
2020, pp. 81-82). Additional elements of the INRMP that will benefit
Louisiana pinesnake and its habitat are awareness training for U.S.
Army personnel to continue to avoid and reduce impacts to Louisiana
pinesnakes during training, as well as public outreach and education.
These conservation efforts reflect actions, reporting, and coordination
described in an earlier candidate conservation agreement for the
Louisiana pinesnake to which Fort Polk was a party (USFWS 2013).
Approximately 3,147 ac (1,273 ha) on the Peason Ridge installation
and 27,611 ac (11,174 ha) are located within the area covered by this
INRMP. Based on the above considerations, and in accordance with
section 4(a)(3)(B)(i) of the Act, we have determined that the
identified lands are subject to the Fort Polk INRMP and that
conservation efforts identified in the INRMP provide a benefit to the
Louisiana pinesnake. Therefore, DoD lands within these installations
that are covered under the Fort Polk INRMP are exempt from critical
habitat designation under section 4(a)(3) of the Act. We are not
including approximately 3,147 ac (1,273 ha) of habitat on Peason Ridge
and 27,611 ac (11,174 ha) of habitat on Fort Polk in this proposed
critical habitat designation because of this exemption.
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 (hereafter, the ``2016 Policy''; 81 FR 7226,
February 11, 2016), 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, 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 the process that we undertook for taking into
consideration each category of impacts and our analyses of the relevant
impacts.
Consideration of Economic Impacts
Section 4(b)(2) of the Act and its implementing regulations require
that we consider the economic impact that may result from a designation
of critical habitat. To assess the probable economic impacts of a
designation, we must first evaluate specific land uses or activities
and projects that may occur in the area of the critical habitat. We
then must evaluate the impacts that a specific critical habitat
designation may have on restricting or modifying specific land uses or
activities for the benefit of the species and its habitat within the
areas proposed. We then identify which conservation efforts may be the
result of the species being listed under the Act versus those
attributed solely to the designation of critical habitat for this
particular species. The probable economic impact of a proposed critical
habitat designation is analyzed by comparing scenarios both ``with
critical habitat'' and ``without critical habitat.''
The ``without critical habitat'' scenario represents the baseline
for the analysis, which includes the existing regulatory and 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). Therefore, the baseline represents the costs of all
efforts attributable to the listing of the species under the Act (i.e.,
conservation of the species and its habitat incurred regardless of
whether critical habitat is designated). The ``with critical habitat''
scenario describes the incremental impacts associated specifically with
the designation of critical habitat for the species. The incremental
conservation efforts and associated impacts would not be expected
without the designation of critical habitat for the species. In other
words, the incremental costs are those attributable solely to the
designation of critical habitat, above and beyond the baseline costs.
These are the costs we use when evaluating the benefits of inclusion
and exclusion of particular areas from the final designation of
critical habitat should we choose to conduct a discretionary section
4(b)(2) exclusion analysis.
For this particular designation, we developed an incremental
effects memorandum (IEM) considering the probable incremental economic
impacts that may result from this proposed designation of critical
habitat. The information contained in our IEM was then used to develop
a screening analysis of the probable economic effects of the
designation of critical habitat for the Louisiana pinesnake (Industrial
Economics, Incorporated (IEc) 2021). We began by conducting a screening
analysis of the proposed designation of critical habitat in order to
focus our analysis on the key factors that are likely to result in
incremental economic impacts. The purpose of the screening analysis is
to filter out particular geographic areas of critical habitat that are
already subject to such protections and are, therefore, unlikely to
incur incremental economic impacts. In particular, the screening
analysis considers baseline costs (i.e., absent critical habitat
designation) and includes any probable incremental economic impacts
where land and water use may be subject to conservation plans, land
management plans, best management practices, or regulations that
protect the habitat area as a result of the Federal listing status of
the species. Ultimately, the screening analysis allows us to focus our
analysis
[[Page 60595]]
on evaluating the specific areas or sectors that may incur probable
incremental economic impacts as a result of the designation. The
presence of the listed species in occupied areas of critical habitat
means that any destruction or adverse modification of those areas will
also jeopardize the continued existence of the species. Therefore,
designating occupied areas as critical habitat typically causes little
if any incremental impacts above and beyond the impacts of listing the
species. If the proposed critical habitat designation contains any
unoccupied units, the screening analysis assesses whether those units
are unoccupied because they require additional management or
conservation efforts that may incur incremental economic impacts. This
screening analysis combined with the information contained in our IEM
constitute what we consider to be our draft economic analysis (DEA) of
the proposed critical habitat designation for the Louisiana pinesnake;
our DEA is summarized in the narrative below.
Executive Orders (E.O.s) 12866 and 13563 direct Federal agencies to
assess the costs and benefits of available regulatory alternatives in
quantitative (to the extent feasible) and qualitative terms. Consistent
with the E.O. regulatory analysis requirements, our effects analysis
under the Act may take into consideration impacts to both directly and
indirectly affected entities, where practicable and reasonable. If
sufficient data are available, we assess to the extent practicable the
probable impacts to both directly and indirectly affected entities. As
part of our screening analysis, we considered the types of economic
activities that are likely to occur within the areas likely affected by
the critical habitat designation. In our evaluation of the probable
incremental economic impacts that may result from the proposed
designation of critical habitat for the Louisiana pinesnake, first we
identified, in the IEM dated March 2, 2021, probable incremental
economic impacts associated with the following categories of
activities: (1) Federal lands management (USFS, DoD), (2) agriculture,
(3) commercial and residential development, (4) forest management, (5)
conservation and restoration, (6) timber/lumber operations, and (7)
transportation and utility projects. We considered each industry or
category individually. Additionally, we considered whether their
activities have any Federal involvement. Critical habitat designation
generally will not affect activities that do not have any Federal
involvement; under the Act, designation of critical habitat only
affects activities conducted, funded, permitted, or authorized by
Federal agencies. In areas where the Louisiana pinesnake is present,
Federal agencies would be required to consult with the Service under
section 7 of the Act on activities they fund, permit, or implement that
may affect the species. If we finalize this proposed critical habitat
designation, 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 result from the species being listed and those that would
be attributable to the critical habitat designation (i.e., difference
between the jeopardy and adverse modification standards) for the
Louisiana pinesnake. Because the designation of critical habitat for
the Louisiana pinesnake is being proposed several years following the
listing of the species, data, such as from consultation history, are
available to help us discern which conservation efforts are
attributable to the species being listed and those that would result
solely from the designation of critical habitat. The following specific
circumstances in this case help to inform our evaluation: (1) The
essential physical or biological features identified for critical
habitat are the same features essential for the life requisites of the
species, and (2) any actions that would result in sufficient harm or
harassment to constitute jeopardy to the Louisiana pinesnake would also
likely adversely affect the essential physical or biological features
of critical habitat. The IEM outlines our rationale concerning this
limited distinction between baseline conservation efforts and
incremental impacts of the designation of critical habitat for this
species. This evaluation of the incremental effects has been used as
the basis to evaluate the probable incremental economic impacts of this
proposed designation of critical habitat.
The proposed critical habitat designation for the Louisiana
pinesnake totals approximately 209,520 ac (84,790 ha) in six units in
Louisiana and Texas. Five of the six units are currently occupied by
the Louisiana pinesnake; the remaining unit is within the snake's
historical range but was not occupied at the time the species was
listed in 2018, and is not known to be currently occupied. Included
lands are under Federal, State, and private ownership, and Federal land
is predominant in Units 2, 3, 4 and 6. The proposed critical habitat is
composed of lands under private (35 percent), State (0.1 percent), and
Federal (65 percent) ownership. Occupied units represent 73 percent of
the proposed critical habitat area. Table 1, above, sets forth specific
information concerning each unit, including occupancy and land
ownership. The proposed critical habitat does not overlap with
designated or proposed critical habitat for any other endangered or
threatened species.
Within the occupied units, any actions that may affect the species
or its habitat would also affect designated critical habitat, and it is
unlikely that any additional conservation efforts would be recommended
to address the adverse modification standard over and above those
recommended as necessary to avoid jeopardizing the continued existence
of the Louisiana pinesnake. Therefore, only administrative costs are
expected for actions affecting approximately 73 percent of the proposed
critical habitat designation. While the analysis for adverse
modification of critical habitat will require time and resources by
both the Federal action agency and the Service, it is believed that, in
most circumstances, these costs would predominantly be administrative
in nature and would not be significant.
The remaining 57,223 ac (23,157 ha) (27 percent of the total
proposed critical habitat designation) 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 57,223-ac (23,157-ha)
unoccupied proposed critical habitat, few actions are expected to occur
that would result in additional section 7 consultation or associated
project modifications outside of the current Service-approved USFS land
and resource management plan. Proposed Unit 3 (Evangeline) is located
on lands in USFS and private ownership. The USFS is currently
implementing management and conservation actions to benefit the
Louisiana pinesnake on HMUs in the Kisatchie National Forest, including
lands in Unit 3, under the 2003 candidate conservation agreement for
the Louisiana pinesnake and a USFS land and resource management plan.
Communications with affected entities indicated that critical habitat
designation would likely result in just a few consultations in this
unit, with minor additional conservation efforts that would be expected
to result in relatively low probable economic impacts. Based on the
geographic
[[Page 60596]]
distribution of historical section 7 consultations and technical
assistance, as well as the assumption that administrative costs would
be higher in unoccupied areas, the highest costs are anticipated in
Unit 3.
The entities most likely to incur incremental costs are parties to
section 7 consultations, including Federal action agencies and, in some
cases, third parties, most frequently State agencies or municipalities.
Activities we expect would be subject to consultations that may involve
private entities as third parties are residential and commercial
development that may occur on private lands; however, costs to private
entities within these sectors are expected to be minor, as much of the
proposed critical habitat is in Federal ownership (65 percent). The
proposed designation for the Louisiana pinesnake includes some private
lands (35 percent), although some of the private lands are conserved in
perpetuity. As such, incremental costs from public perception of the
designation have some potential to arise, but are speculative. However,
a robust consultation history exists for this species, as well as for
the red-cockaded woodpecker, a listed species with an overlapping range
and similar habitat structure needs. Landowners in these areas are,
therefore, less likely to experience regulatory uncertainty associated
with critical habitat. While perceptional effects on land values are
possible, the likelihood and magnitude of such effects are uncertain.
The probable incremental economic impacts of this proposed critical
habitat designation for the Louisiana pinesnake are expected to be
limited to additional administrative effort as well as minor costs of
conservation efforts resulting from a small number of future section 7
consultations. This is due to two factors: (1) A large portion of
proposed critical habitat is considered to be occupied by the species
(73 percent), where incremental economic impacts of critical habitat
designation, other than administrative costs, are unlikely; and (2) in
proposed areas that are not occupied by the Louisiana pinesnake (27
percent), few actions are anticipated that would result in section 7
consultation or associated project modifications. Because of the volume
of lands that are State-, county-, or privately owned, and the
substantial amount of lands that are already being managed for
conservation, the numbers of section 7 consultations expected annually
are modest (approximately 2 formal, 58 informal, and 15 technical
assistance efforts annually across the designation).
Critical habitat designation for the Louisiana pinesnake is
unlikely to generate costs or benefits exceeding $100 million in a
single year. Therefore, this proposed rule is unlikely to meet the
threshold for an economically significant rule, with regard to costs,
under E.O. 12866. In fact, the total annual incremental costs of
critical habitat designation for the Louisiana pinesnake are
anticipated to be less than $240,000 per year, and economic benefits
are also anticipated to be small.
We are soliciting data and comments from the public on the DEA
discussed above, as well as 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) of the Act and our implementing regulations at 50 CFR
424.19.We may exclude an area from critical habitat if we determine
that the benefits of excluding the area outweigh the benefits of
including the area, provided the exclusion will not result in the
extinction of this species.
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), 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.
We have evaluated whether any of the lands within the proposed
designation of critical habitat are owned by DoD or DHS or could lead
to national-security or homeland-security impacts if designated. In
this discussion, we describe the areas within the proposed designation
that are owned by DoD or DHS or for which designation could lead to
national-security or homeland-security impacts. For each area, we
describe the available information indicating whether we have reason to
consider excluding the area from the designation. If, during the
comment period, we identify or receive information about additional
areas for which designation may result in incremental national-security
or homeland-security impacts, then we will consider whether to exclude
those
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additional areas under the authority of section 4(b)(2) of the Act.
Fort Polk
In preparing this proposal, we have determined that some lands
within Unit 4 of the proposed designation of critical habitat for the
Louisiana pinesnake are used under permit by the U.S. Army, which is
part of DoD. We have previously described two areas (Peason Ridge and
Fort Polk) with an approved INRMP under application of section
4(a)(3)(B)(i) of the Act, above. As discussed in the Unit 4
description, above, the USFS-permitted lands used by Fort Polk are
located to the south of the DoD lands and are separated into two areas:
the Intensive Use Area (IUA) and the Limited Use Area (LUA). None of
the acreage within the IUA or LUA is covered under the Fort Polk INRMP;
thus, none of this acreage was considered for exemption under section
4(a)(3)(B)(i) of the Act (see Approved INRMPs under Exemptions, above).
The IUA and LUA are operated by the DoD for training and maneuver
exercises in an area of the Vernon Unit, Calcasieu Ranger District, of
the Kisatchie National Forest in Vernon Parish, Louisiana. The DoD uses
this area under a special use permit from the USFS, who is the primary
landowner and manager within the installation boundary.
The DoD has expressed concern that the designation of critical
habitat on the IUA and LUA would have implications for national
security, as summarized below. The potential impacts of designating the
IUA or LUA on national security include restrictions on military
training exercises. Lands within the IUA and LUA are used for artillery
training that provides soldiers with essential battlefield combat
skills. Excluding these USFS lands from critical habitat designation
would remove the potential impact that a designation of critical
habitat could have on the ability to maintain national security.
Additionally, the IUA and LUA are cooperatively managed by the DoD,
USFS, and LDWF to benefit the Louisiana pinesnake and red-cockaded
woodpecker, including prescribed burning of upland pine stands as part
of the candidate conservation agreement on USFS habitat management
units (U.S. Army appendix D.3 2020, p. 31). Therefore, we are
considering for exclusion from the final critical habitat designation
42,897-ac (17,360-ha) of USFS-owned lands in proposed Unit 4 as a
result of impacts to national security under section 4(b)(2) of the
Act.
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 (SHAs), or
candidate conservation agreements with assurances (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.
When analyzing other relevant impacts of including a particular
area in a designation of critical habitat, we weigh those impacts
relative to the conservation value of the particular area. To determine
the conservation value of designating a particular area, we consider a
number of factors, including, but not limited to, the additional
regulatory benefits that the area would receive due to the protection
from destruction or adverse modification as a result of actions with a
Federal nexus, the educational benefits of mapping essential habitat
for recovery of the listed species, and any benefits that may result
from a designation due to State or Federal laws that may apply to
critical habitat.
In the case of the Louisiana pinesnake, the benefits of critical
habitat include public awareness of the presence of the Louisiana
pinesnake and the importance of habitat protection, and, where a
Federal nexus exists, increased habitat protection for the Louisiana
pinesnake due to protection from destruction or adverse modification of
critical habitat. Continued implementation of an ongoing management
plan that provides conservation equal to or more than the protections
that result from a critical habitat designation would reduce those
benefits of including that specific area in the critical habitat
designation.
We evaluate the existence of a conservation plan when considering
the benefits of inclusion. We consider a variety of factors, including,
but not limited to, whether the plan is finalized; how it provides for
the conservation of the essential physical or biological features;
whether there is a reasonable expectation that the conservation
management strategies and actions contained in a management plan will
be implemented into the future; whether the conservation strategies in
the plan are likely to be effective; and whether the plan contains a
monitoring program or adaptive management to ensure that the
conservation measures are effective and can be adapted in the future in
response to new information.
After identifying the benefits of inclusion and the benefits of
exclusion, when conducting an exclusion analysis we carefully weigh the
two sides to evaluate whether the benefits of exclusion outweigh those
of inclusion. If our analysis indicates that the benefits of exclusion
outweigh the benefits of inclusion, we then determine whether exclusion
would result in extinction of the species. If exclusion of an area from
critical habitat will result in extinction, we will not exclude it from
the designation.
Private or Other Non-Federal Conservation Plans or Agreements and
Partnerships, in General
We sometimes exclude specific areas from critical habitat
designations based in part on the existence of private or other non-
Federal conservation plans or agreements and their attendant
partnerships. A conservation plan or agreement describes actions that
are designed to provide for the conservation needs of a species and its
habitat, and may include actions to reduce or mitigate negative effects
on the species caused by activities on or adjacent to the area covered
by the plan. Conservation plans or agreements can be developed by
private entities with no Service involvement, or in partnership with
the Service, sometimes through the permitting process under section 10
of the Act.
When we undertake a discretionary section 4(b)(2) analysis, we
evaluate a variety of factors to determine how the benefits of any
exclusion and the benefits of inclusion are affected by the existence
of private or other non-Federal conservation plans or agreements and
their attendant partnerships. The factors we consider may differ,
depending on whether we are evaluating a conservation plan that
involves permits under section 10 or a non-permitted plan (see sections
c and b, respectively, of the 2016 Policy).
[[Page 60598]]
Private or Other Non-Federal Conservation Plans Related to Permits
Under Section 10 of the Act
HCPs for incidental take permits under section 10(a)(1)(B) of the
Act provide for partnerships with non-Federal entities to minimize and
mitigate impacts to listed species and their habitats. In some cases,
HCP permittees agree to do more for the conservation of the species and
their habitats on private lands than designation of critical habitat
would provide alone. We place great value on the partnerships that are
developed during the preparation and implementation of HCPs.
CCAAs and SHAs are voluntary agreements designed to conserve
candidate and listed species, respectively, on non-Federal lands. In
exchange for actions that contribute to the conservation of species on
non-Federal lands, participating property owners are covered by an
``enhancement of survival'' permit under section 10(a)(1)(A) of the
Act, which authorizes incidental take of the covered species that may
result from implementation of conservation actions, specific land uses,
and, in the case of SHAs, the option to return to a baseline condition
under the agreements. The Service also provides enrollees assurances
that we will not impose further land-, water-, or resource-use
restrictions, or require additional commitments of land, water, or
finances, beyond those agreed to in the agreements.
When we undertake a discretionary section 4(b)(2) exclusion
analysis based on permitted conservation plans such as CCAAs, SHAs, and
HCPs, we anticipate consistently excluding such areas if incidental
take caused by the activities in those areas is covered by the permit
under section 10 of the Act and the CCAA/SHA/HCP meets all of the
following three factors (see the 2016 Policy for additional details):
a. The permittee is properly implementing the CCAA/SHA/HCP and is
expected to continue to do so for the term of the agreement. A CCAA/
SHA/HCP is properly implemented if the permittee is and has been fully
implementing the commitments and provisions in the CCAA/SHA/HCP,
implementing agreement, and permit.
b. The species for which critical habitat is being designated is a
covered species in the CCAA/SHA/HCP, or very similar in its habitat
requirements to a covered species. The recognition that the Services
extend to such an agreement depends on the degree to which the
conservation measures undertaken in the CCAA/SHA/HCP would also protect
the habitat features of the similar species.
c. The CCAA/SHA/HCP specifically addresses that species' habitat
and meets the conservation needs of the species in the planning area.
The proposed critical habitat designation includes areas that are
covered by the following permitted plan providing for the conservation
of Louisiana pinesnake: Programmatic Candidate Conservation Agreement
with Assurances with the Louisiana Department of Wildlife and Fisheries
(LDWF CCAA).
The LDWF CCAA is intended to further the conservation of the
Louisiana pinesnake on private lands by protecting known populations
and additional potential habitat through reducing threats to the
species' habitat and survival, restoring degraded potential habitat on
suitable soils, and potentially reintroducing captive-bred snakes to
select areas of the restored habitat.
Signed in 2017, the LDWF CCAA for Louisiana pinesnake is an
umbrella document under which individual landowners in Bienville,
Beauregard, Jackson, Natchitoches, Rapides, Sabine, Vernon, Winn,
Grant, and Allen parishes, Louisiana, may participate. Three private
landowners within the range of the Louisiana pinesnake hold
certificates of inclusion under the enhancement of survival permit that
expires in 2116. All enrolled parcels are in Bienville Parish,
Louisiana, and total 5,388 ac (2,180 ha). The three properties consist
of Bienville Kep, a 1,067-ac (432-ha) ranch; Bienville Plan, a 2,698-ac
(1,092-ha) property; and Bienville San, a 1,624-ac (657-ha) property.
They are of sufficient size to benefit the Louisiana pinesnake when
conservation measures are implemented. Each landowner implements
conservation measures designed to protect and enhance habitat for the
benefit of the Louisiana pinesnake on private lands enrolled under the
agreement. The three landowners must maintain upland pine habitats
compatible with Louisiana pinesnake's life-history requirements in
accordance with each certificate of inclusion. Conservation land use
practices vary according to the needs of a particular enrolled
landowner, but the three landowners currently enrolled use land
management practices of prescribed fire, forest thinning, and
replanting of native species on enrolled lands. The use of these
measures maintains or improves the physical and biological features
required by the Louisiana pinesnake, namely natural upland pine forests
that contain open canopy stands of longleaf, shortleaf, slash, or
loblolly pine trees that have low midstory tree density and pine tree
basal area, limited scrub/shrub cover, and abundant, diverse, and
native herbaceous vegetative groundcover (including a mix of grasses
and forbs) to support the Louisiana pinesnake's primary prey item
(Baird's pocket gopher). The LDWF CCAA also allows for implementation
of other conservation measures beneficial to the Louisiana pinesnake
that may be developed in the future.
After considering the factors described above, we have identified
the following areas that we have reason to consider excluding because
of permitted plans: 5,388 ac (2,180 ha) of private lands in Bienville
Parish, Louisiana, currently enrolled in the LDWF CCAA for the
Louisiana pinesnake. We describe below our reasons for considering
these areas for potential exclusion.
Programmatic Candidate Conservation Agreement With Assurances With the
Louisiana Department of Wildlife and Fisheries (LDWF CCAA)
Critical habitat within Unit 1 that is currently associated with
the LDWF CCAA is wholly comprised of the three enrolled properties
described above. Based on our review of the LDWF CCAA and proposed
critical habitat for the Louisiana pinesnake, we do not anticipate
requesting any additional conservation measures for the species beyond
those that are currently in place. The LDWF CCAA covers the Louisiana
pinesnake, addresses the specific habitat of the species and meets the
conservation needs of the species, and is currently being implemented
properly. Therefore, at this time, we are considering excluding those
specific lands associated with the LDWF CCAA from the final designation
of critical habitat for the Louisiana pinesnake. However, we will more
thoroughly review the CCAA, the implementation of its conservation
measures for the Louisiana pinesnake and its habitat, and public
comment on this issue prior to finalizing critical habitat, and, if
appropriate, we will exclude from critical habitat for the Louisiana
pinesnake those lands enrolled in the LDWF CCAA.
Draft Programmatic Safe Harbor Agreement (SHA) for the Louisiana
Pinesnake in Louisiana and Texas (Unknown Acreage)
The draft SHA was developed in 2021, and is expected to be
finalized in 2022, with an enhancement of survival permit issued at the
time of finalization. The parties to the draft SHA include the
[[Page 60599]]
LDWF, Texas A&M Forest Service, Texas Parks and Wildlife Department,
and the Service. Non-federal landowners (``enrolled cooperators'')
within the range of the species in western and central Louisiana and
eastern Texas will be eligible to enroll suitable property under the
SHA, when finalized, and receive a certificate of inclusion. The
geographic area covered by the draft SHA includes Angelina, Hardin,
Jasper, Nacogdoches, Newton, Polk, Sabine, San Augustine, Trinity,
Tyler, and Wood counties in Texas, and Bienville, Beauregard, Jackson,
Natchitoches, Rapides, Sabine, and Vernon parishes, and as well as
additional lands in Winn, Grant, and Allen parishes, in Louisiana.
Conservation measures implemented on enrolled properties are site-
specific but will address loss and degradation of suitable habitat,
isolated populations, and vehicle mortality, and will provide a net
conservation benefit to the Louisiana pinesnake. Management actions
specified in the draft SHA include prescribed fire, chemical vegetation
control, thinning and conversion of loblolly and slash pine stands to
longleaf pine forest, silviculture best management practices, and
species and habitat monitoring. The use of these measures maintains or
improves the physical and biological features required by the Louisiana
pinesnake, namely upland natural pine forests that contain open-canopy
stands of longleaf, shortleaf, slash, or loblolly pine trees that have
low midstory tree density and pine tree basal area, limited scrub/shrub
cover, and abundant, diverse, and native herbaceous vegetative
groundcover (including a mix of grasses and forbs) to support the
Louisiana pinesnake's primary prey item (Baird's pocket gopher). The
draft SHA also allows for implementation of other conservation measures
beneficial to the Louisiana pinesnake that may be developed in the
future. Critical habitat within the range of the species that may be
associated with the SHA is yet to be determined. When the draft SHA is
finalized and the associated enhancement of survival permit issued, an
unknown number of private properties in all proposed critical habitat
units may be enrolled in the SHA. Based on our review of the draft SHA
and proposed critical habitat for the Louisiana pinesnake, we find that
the conservation measures within the draft SHA are sufficient to
provide for the conservation of the Louisiana pinesnake on the enrolled
lands. The draft SHA covers the Louisiana pinesnake, addresses the
specific habitat of the species and meets the conservation needs of the
species, and is expected to be implemented. Therefore, at this time, we
are considering excluding from the final critical habitat designation
those specific lands in private ownership that will be enrolled in the
SHA prior to development of the final critical habitat designation for
the Louisiana pinesnake. However, we will more thoroughly review the
SHA, its conservation measures for the Louisiana pinesnake and its
habitat, and public comment on this issue prior to finalizing critical
habitat, and, if appropriate, we will exclude from critical habitat for
the Louisiana pinesnake those lands enrolled in the finalized and
permitted SHA.
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.) compliance was required.
(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 essential physical or biological features for 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.
(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.
The proposed critical habitat designation includes areas that are
covered by the following non-permitted plan providing for the
conservation of Louisiana pinesnake: The Nature Conservancy's Scrappin'
Valley Easement (1,675 ac (678 ha)).
The Nature Conservancy of Texas holds a conservation easement in
perpetuity on 1,675 ac (678 ha) of longleaf-dominated upland pine
habitat in private ownership in Newton County, Texas. The land is
managed with conservation actions, including prescribed fire, hardwood
removal, thinning of loblolly and slash pine, and restoration planting,
that maintain and improve the longleaf pine habitat for red-cockaded
woodpeckers and also benefit the Louisiana pinesnake. The use of these
measures maintains or improves the physical and biological features
required by Louisiana pinesnake, namely upland natural pine forests
that contain open-canopy stands of longleaf, shortleaf, slash, or
loblolly pine trees that have low midstory tree density and pine tree
basal area, limited scrub/shrub cover, and abundant, diverse, and
native herbaceous vegetative groundcover (including a mix of grasses
and forbs) that are required to support the Louisiana pinesnake's
primary prey item (Baird's pocket gopher).
After considering the factors described above, we have identified
the following areas that we have reason to consider excluding because
of non-permitted plans: 1,675 ac (678 ha) of private lands in Scrappin'
Valley under conservation easement held by The Nature Conservancy.
Below, we describe our reasons for considering this area for potential
exclusion.
The Nature Conservancy's Scrappin' Valley Easement
Critical habitat within proposed Unit 5 that is currently part of a
perpetual conservation easement held by The Nature Conservancy of Texas
is limited to the private lands described above. Based on our review of
the easement and proposed critical habitat for the Louisiana pinesnake,
we do not anticipate requesting any additional conservation measures
for the species beyond those that are currently in place. The
landowners have implemented conservation actions including habitat
management that improves the vegetation structure of the habitat and
benefits the Louisiana pinesnake. As described above, these efforts
provide for the conservation of the physical or biological features
essential to the conservation of the Louisiana pinesnake by maintaining
or improving the upland natural pine forests so that they are
characterized by open-canopy stands
[[Page 60600]]
with low midstory tree density and pine tree basal area, limited scrub/
shrub cover, and abundant, diverse, and native herbaceous groundcover.
The conservation easement is perpetual and we have a reasonable
expectation that the strategies and actions will be implemented in the
future to a similar degree they have in the past based on the habitat
condition. The conservation easement includes a monitoring component
and adaptive management to ensure conservation measures are effective
and can be modified based on management results and conservation needs.
We recognize that the private lands under the conservation easement
make an important contribution to the conservation and recovery of the
Louisiana pinesnake and expect these lands will continue to do so if
excluded from the critical habitat designation for the species.
Therefore, at this time, we are considering excluding those specific
lands associated with the easement from the final designation of
critical habitat for the Louisiana pinesnake. However, we will more
thoroughly review the easement, the implementation of its conservation
measures for the Louisiana pinesnake and its habitat, and public
comment on this issue prior to finalizing critical habitat, and, if
appropriate, we will exclude from critical habitat for the Louisiana
pinesnake those lands covered by the easement.
Tribal Lands
Several Executive Orders, Secretarial Orders, and policies concern
working with Tribes. These guidance documents generally confirm our
trust responsibilities to Tribes, recognize that Tribes have sovereign
authority to control Tribal lands, emphasize the importance of
developing partnerships with Tribal governments, and direct the Service
to consult with Tribes on a government-to-government basis.
A joint Secretarial Order that applies to both the Service and the
National Marine Fisheries Service (NMFS)--Secretarial Order 3206,
American Indian Tribal Rights, Federal--Tribal Trust Responsibilities,
and the Endangered Species Act (June 5, 1997) (S.O. 3206)--is the most
comprehensive of the various guidance documents related to Tribal
relationships and Act implementation, and it provides the most detail
directly relevant to the designation of critical habitat. In addition
to the general direction discussed above, the appendix to S.O. 3206
explicitly recognizes the right of Tribes to participate fully in any
listing process that may affect Tribal rights or Tribal trust
resources; this includes the designation of critical habitat. Section
3(b)(4) of the appendix requires the Service to consult with affected
Tribes when considering the designation of critical habitat in an area
that may impact Tribal trust resources, Tribally owned fee lands, or
the exercise of Tribal rights. That provision also instructs the
Service to avoid including Tribal lands within a critical habitat
designation unless the area is essential to conserve a listed species,
and it requires the Service to evaluate and document the extent to
which the conservation needs of the listed species can be achieved by
limiting the designation to other lands.
Our implementing regulations at 50 CFR 424.19 and the 2016 Policy
are consistent with S.O. 3206. When we undertake a discretionary
exclusion analysis under section 4(b)(2) of the Act, in accordance with
S.O. 3206, we consult with any Tribe whose Tribal trust resources,
Tribally owned fee lands, or Tribal rights may be affected by including
any particular areas in the designation, and we evaluate the extent to
which the conservation needs of the species can be achieved by limiting
the designation to other areas and give great weight to Tribal concerns
in analyzing the benefits of exclusion.
However, S.O. 3206 does not override the Act's statutory
requirement of designation of critical habitat. As stated above, we
must consult with any Tribe when a designation of critical habitat may
affect Tribal lands or resources. The Act requires us to identify areas
that meet the definition of ``critical habitat'' (i.e., areas occupied
at the time of listing that contain the essential physical or
biological features which may require special management considerations
or protection, and unoccupied areas that are essential to the
conservation of a species), without regard to land ownership. While
S.O. 3206 provides important direction, it expressly states that it
does not modify the Secretary's statutory authority under the Act or
other statutes. There are no Tribal lands within the proposed critical
habitat for the Louisiana pinesnake.
Federal Lands
Federal land managers have unique obligations under the Act. First,
Congress declared its policy that all Federal departments and agencies
shall seek to conserve endangered species and threatened species and
shall utilize their authorities in furtherance of the purposes of this
Act (section 2(c)(1)). Second, all Federal agencies have
responsibilities under section 7 of the Act to carry out programs for
the conservation of listed species and to ensure their actions are not
likely to jeopardize the continued existence of listed species or
result in the destruction or adverse modification of critical habitat.
Therefore, in general we focus our exclusions on non-Federal lands. Our
regulations at 50 CFR 424.19 and the 2016 Policy provide for the
consideration of the exclusion of Federal lands in particular
instances.
In preparing this proposal, we have determined that portions of the
Catahoula and Calcasieu ranger districts in the Kisatchie National
Forest (Units 2, 3, 4) and the Angelina National Forest (Unit 6) are
Federal lands that meet the definition of critical habitat for the
Louisiana pinesnake. However, at this time, we are not aware of
information of economic or other relevant impact that is meaningful to
support a benefit of exclusion on those Federal lands. Therefore, we
are not considering to exclude any Federal lands, other than those
discussed above that we are considering for exclusion for national
security reasons, from this proposed designation of critical habitat.
However, if, through the public comment period, we receive information
regarding impacts to Federal lands within the proposed designation of
critical habitat for the Louisiana pinesnake, then as part of
developing the final designation of critical habitat, we will evaluate
that information to determine whether to conduct a discretionary
exclusion analysis to determine whether to exclude those areas under
the authority of section 4(b)(2) of the Act and our implementing
regulations at 50 CFR 424.19. If after this evaluation we do not
exclude, we will fully explain our decision.
Summary of Exclusions Considered Under Section 4(b)(2) of the Act
Based on the information provided by entities seeking exclusion, as
well as any additional public comments we receive, we will evaluate
whether certain lands in the proposed critical habitat Units 1-6 are
appropriate for exclusion from the final designation under section
4(b)(2) of the Act. If the analysis indicates that the benefits of
excluding lands from the final designation outweigh the benefits of
designating those lands as critical habitat, then the Secretary may
exercise her discretion to exclude the lands from the final
designation.
We have reason to consider excluding the following areas under
section 4(b)(2) of the Act from the final critical habitat designation
for Louisiana pinesnake. Table 2, below, provides approximate areas
(ac, ha) of lands that meet the definition of critical habitat but for
[[Page 60601]]
which we are considering possible exclusion under section 4(b)(2) of
the Act from the final critical habitat rule.
Table 2--Areas Considered for Exclusion by Critical Habitat Unit
--------------------------------------------------------------------------------------------------------------------------------------------------------
Areas meeting the definition of Areas considered for
Unit Specific area critical habitat, in acres possible exclusion, in Rationale for
(hectares) acres (hectares) proposed exclusion
--------------------------------------------------------------------------------------------------------------------------------------------------------
Unit 1: Bienville..................... LDWF CCAA........... 61,083 (24,720)....................... 5,388 (2,180)................ Conservation
partnership.
Unit 4: Fort Polk/Vernon.............. USFS lands permitted 43,789 (17,721)....................... 42,897 (17,360).............. National security.
for use by DOD.
Unit 5: Scrappin' Valley.............. TNC conservation 5,058 (2,047)......................... 1,675 (678).................. Conservation
easement. partnership.
Units 1-6............................. Louisiana Pinesnake Up to 209,520 (84,790)................ Enrolled lands............... Conservation
Programmatic SHA. partnership.
--------------------------------------------------------------------------------------------------------------------------------------------------------
In conclusion, for this proposed rule, we have reason to consider
excluding the areas identified above based on national security impacts
and other relevant impacts. We specifically solicit comments on the
inclusion or exclusion of such areas. During the development of a final
designation, we will consider any information currently available or
received during the public comment period regarding other relevant
impacts of the proposed designation and will determine whether these or
any other specific areas should be excluded from the final critical
habitat designation under authority of section 4(b)(2) of the Act, 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 whether potential
economic impacts to these small entities are significant, we considered
the types of activities that might trigger regulatory impacts under
this designation as well as types of project modifications that may
result. In general, the term ``significant economic impact'' is meant
to apply to a typical small business firm's business operations.
Under the RFA, as amended, and as understood in light of recent
court decisions, Federal agencies are required to evaluate the
potential incremental impacts of rulemaking on those entities directly
regulated by the rulemaking itself; in other words, the RFA does not
require agencies to evaluate the potential impacts to indirectly
regulated entities. The regulatory mechanism through which critical
habitat protections are realized is section 7 of
[[Page 60602]]
the Act, which requires Federal agencies, in consultation with the
Service, to ensure that any action authorized, funded, or carried out
by the agency is not likely to destroy or adversely modify critical
habitat. Therefore, under section 7, only Federal action agencies are
directly subject to the specific regulatory requirement (avoiding
destruction and adverse modification) imposed by critical habitat
designation. Consequently, it is our position that only Federal action
agencies would be directly regulated if we adopt the proposed critical
habitat designation. There is no requirement under the RFA to evaluate
the potential impacts to entities not directly regulated. Moreover,
Federal agencies are not small entities. Therefore, because no small
entities would be directly regulated by this rulemaking, the Service
certifies that, if made final as proposed, this 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 as proposed, this
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 this
proposed critical habitat designation would significantly affect energy
supplies, distribution, or use, because these types of activities are
not occurring and not expected to occur in areas being proposed as
critical habitat. 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 the government-owned lands
being proposed for critical habitat designation are owned by the State
of Louisiana, the Department of Defense, and the U.S. Forest Service.
None of these government entities fits the definition of ``small
governmental jurisdiction.'' Small governments will be affected only to
the extent that any programs having Federal funds, permits, or other
authorized activities must ensure that their actions will not adversely
affect the critical habitat. Therefore, a Small Government Agency Plan
is not required.
Takings--Executive Order 12630
In accordance with E.O. 12630 (Government Actions and Interference
with Constitutionally Protected Private Property Rights), we have
analyzed the potential takings implications of designating critical
habitat for the Louisiana pinesnake 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 Louisiana
pinesnake, 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
[[Page 60603]]
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, the proposed rule does not have substantial direct effects
either on the States, or on the relationship between the national
government and the States, or on the distribution of powers and
responsibilities among the various levels of government. The proposed
designation may have some benefit to these governments because the
areas that contain the features essential to the conservation of the
species are more clearly defined, and the physical or biological
features of the habitat necessary for the conservation of the species
are specifically identified. This information does not alter where and
what federally sponsored activities may occur. However, it may assist
State and local governments in long-range planning because they no
longer have to wait for case-by-case section 7 consultations to occur.
Where State and local governments require approval or authorization
from a Federal agency for actions that may affect critical habitat,
consultation under section 7(a)(2) of the Act would be required. While
non-Federal entities that receive Federal funding, assistance, or
permits, or that otherwise require approval or authorization from a
Federal agency for an action, may be indirectly impacted by the
designation of critical habitat, the legally binding duty to avoid
destruction or adverse modification of critical habitat rests squarely
on the Federal agency.
Civil Justice Reform--Executive Order 12988
In accordance with Executive Order 12988 (Civil Justice Reform),
the Office of the Solicitor has determined that the rule would not
unduly burden the judicial system and that it meets the requirements of
sections 3(a) and 3(b)(2) of the Order. We have 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 physical or biological features
essential to the conservation of the species. The proposed areas of
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 regulations
adopted pursuant to section 4(a) of 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 coordinated with the Chitimacha,
Coushatta, Tunica-Biloxi, Alabama-Coushatta, and Jena Band of Choctaw
Tribes as we began to develop the species status assessment for the
Louisiana pinesnake in 2019, and we provided the IEM to the same Tribes
as we began work on proposing critical habitat. We have determined that
no Tribal lands fall within the boundaries of the proposed critical
habitat for the Louisiana pinesnake, 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 Louisiana 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
Louisiana 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 revising the entry for
``Pinesnake, Louisiana'' in the List of Endangered and Threatened
Wildlife under REPTILES to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
[[Page 60604]]
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Listing citations and
Common name Scientific name Where listed Status applicable rules
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Reptiles
* * * * * * *
Pinesnake, Louisiana............ Pituophis ruthveni Wherever found.... T 83 FR 14958, 4/6/2018;
50 CFR 17.42(i); \4d\
50 CFR 17.95(c).\CH\
* * * * * * *
----------------------------------------------------------------------------------------------------------------
0
3. Amend Sec. 17.95, in paragraph (c), by adding an entry for
``Louisiana Pinesnake (Pituophis ruthveni)'', immediately following the
entry for ``Black Pinesnake (Pituophis melanoleucus lodingi)'', to read
as follows:
Sec. 17.95 Critical habitat--fish and wildlife.
* * * * *
(c) Reptiles.
* * * * *
Louisiana Pinesnake (Pituophis ruthveni)
(1) Critical habitat units are depicted for Bienville, Grant,
Rapides, and Vernon parishes, Louisiana, and Angelina, Jasper, and
Newton Counties, Texas, on the maps in this entry.
(2) Within these areas, the physical or biological features
essential to the conservation of the Louisiana pinesnake consist of the
following components:
(i) Upland natural pine habitats that contain open-canopy stands of
longleaf, shortleaf, slash, or loblolly pine trees that have:
(A) Low midstory tree density;
(B) Low midstory pine tree basal area;
(C) Low scrub/shrub cover; and
(D) Abundant, diverse, and native herbaceous vegetative
groundcover, including a mix of grasses and forbs.
(ii) Suitable habitat in large (7,166 acres (2,900 hectares)),
contiguous blocks.
(iii) Soils with high sand content and a low water table.
(iv) An adequate Baird's pocket gopher (Geomys breviceps)
population, as evidenced by abundant and widely distributed active
mound complexes.
(3) Critical habitat does not include manmade structures (such as
buildings, aqueducts, runways, roads, and other paved areas) and the
land on which they are located existing within the legal boundaries on
[EFFECTIVE DATE OF FINAL RULE].
(4) Data layers defining map units were created with the U.S.
Geological Survey's National Hydrography Dataset flowline data and the
USFS Geodata Clearinghouse on a base map of roads and State and County
boundaries from the U.S. Census Bureau Topologically Integrated
Geographic Encoding and Referencing database files. Critical habitat
units were mapped using the Geographic Coordinate System North American
1983 coordinates. The maps in this entry, as modified by any
accompanying regulatory text, establish the boundaries of the critical
habitat designation. The coordinates or plot points or both on which
each map is based are available to the public at the Service's internet
site at <a href="https://www.regulations.gov">https://www.regulations.gov</a> at Docket No. FWS-R4-ES-2021-0166,
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.
BILLING CODE 4333-15-P
(5) Index map follows:
Figure 1 to Louisiana Pinesnake (Pituophis ruthveni) paragraph (5)
[[Page 60605]]
[GRAPHIC] [TIFF OMITTED] TP06OC22.007
(6) Unit 1: Bienville, Bienville Parish, Louisiana.
(i) Unit 1 consists of 61,083 acres (ac) (24,720 hectares (ha))
west of Highway 155 and east of Highway 507, approximately 40 miles (64
kilometers) southeast of Shreveport, Louisiana, in Bienville Parish,
Louisiana. Unit 1 is composed of lands in State (333 ac (135 ha)) and
private (60,750 ac (24,585 ha)) ownership.
(ii) Map of Unit 1 follows:
Figure 2 to Louisiana Pinesnake (Pituophis ruthveni) paragraph (6)(ii)
[[Page 60606]]
[GRAPHIC] [TIFF OMITTED] TP06OC22.008
(7) Unit 2: Catahoula, Grant Parish, Louisiana.
(i) Unit 2 consists of 26,403 ac (10,685 ha) east of U.S. Highway
167 and west of U.S. Highway 165 in Grant Parish, Louisiana, including
lands in Federal (24,436 ac (9,889 ha)) and private (1,967 ac (796 ha))
ownership.
(ii) Map of Unit 2 follows:
Figure 3 to Louisiana Pinesnake (Pituophis ruthveni) paragraph (7)(ii)
[[Page 60607]]
[GRAPHIC] [TIFF OMITTED] TP06OC22.009
(8) Unit 3: Evangeline, Rapides Parish, Louisiana.
(i) Unit 3 consists of 57,223 ac (23,157 ha) approximately 10 miles
(16 kilometers) southwest of Alexandria, Louisiana, in Rapides Parish,
Louisiana, including lands in Federal (54,507 ac (22,058 ha)) and
private (2,716 ac (1,099 ha)) ownership.
(ii) Map of Unit 3 follows:
Figure 4 to Louisiana Pinesnake (Pituophis ruthveni) paragraph (8)(ii)
[[Page 60608]]
[GRAPHIC] [TIFF OMITTED] TP06OC22.010
(9) Unit 4: Fort Polk/Vernon, Vernon Parish, Louisiana.
(i) Unit 4 consists of 43,789 ac (17,721 ha) approximately 12 miles
(19 kilometers) northeast of Pitkin, Louisiana, and 12 miles south of
Hicks, Louisiana, in Vernon Parish, Louisiana, including lands in
Federal (42,897 ac (17,360 ha)) and private (892 ac (361 ha))
ownership.
(ii) Map of Unit 4 follows:
Figure 5 to Louisiana Pinesnake (Pituophis ruthveni) paragraph (9)(ii)
[[Page 60609]]
[GRAPHIC] [TIFF OMITTED] TP06OC22.011
(10) Unit 5: Scrappin' Valley, Newton County, Texas.
(i) Unit 5 consists of 5,058 ac (2,047 ha) west of Texas State
Highway 87 and north of Texas Recreational Road 255 in Newton County,
Texas. Unit 5 is composed of lands in private ownership.
(ii) Map of Unit 5 follows:
Figure 6 to Louisiana Pinesnake (Pituophis ruthveni) paragraph (10)(ii)
[[Page 60610]]
[GRAPHIC] [TIFF OMITTED] TP06OC22.012
(11) Unit 6: Angelina, Angelina and Jasper Counties, Texas.
(i) Unit 6 consists of 15,966 ac (6,461 ha) approximately 7 miles
(11 kilometers) southeast of Zavalla, Texas, in southeastern Angelina
and northwestern Jasper Counties, Texas, including lands in Federal
(14,424 ac (5,837 ha)) and private (1,542 ac (624 ha)) ownership.
(ii) Map of Unit 6 follows:
Figure 7 to Louisiana Pinesnake (Pituophis ruthveni) paragraph (11)(ii)
[[Page 60611]]
[GRAPHIC] [TIFF OMITTED] TP06OC22.013
[[Page 60612]]
* * * * *
Martha Williams,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2022-21333 Filed 10-5-22; 8:45 am]
BILLING CODE 4333-15-C
</pre></body>
</html>Indexed from Federal Register on October 6, 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.