Proposed Rule2022-25218
Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Endangered Florida Bonneted Bat
Primary source
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Published
November 22, 2022
Issuing agencies
Interior DepartmentFish and Wildlife Service
Abstract
We, the U.S. Fish and Wildlife Service (Service), are revising our proposed designation of critical habitat for the Florida bonneted bat (Eumops floridanus) under the Endangered Species Act of 1973 (Act), as amended. In response to new information we received and public comments on our June 10, 2020, proposed rule, we are now proposing to designate approximately 1,174,011 acres (475,105 hectares) in 13 Florida counties as critical habitat for the species. We also announce the availability of a draft economic analysis (DEA) of the revised proposed designation of critical habitat for the Florida bonneted bat. We request comments from all interested parties on this revised proposed rule and the associated DEA. Comments submitted on our June 10, 2020, proposed rule need not be resubmitted as they will be fully considered in the preparation of the final rule. If we finalize this rule as proposed, it would extend the Act's protections to this species' critical habitat.
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[Federal Register Volume 87, Number 224 (Tuesday, November 22, 2022)]
[Proposed Rules]
[Pages 71466-71501]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-25218]
[[Page 71465]]
Vol. 87
Tuesday,
No. 224
November 22, 2022
Part III
Department of the Interior
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Fish and Wildlife Service
50 CFR Part 17
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Endangered and Threatened Wildlife and Plants; Designation of Critical
Habitat for Endangered Florida Bonneted Bat; Proposed Rule
Federal Register / Vol. 87 , No. 224 / Tuesday, November 22, 2022 /
Proposed Rules
[[Page 71466]]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R4-ES-2019-0106; FF09E21000 FXES1111090FEDR 234]
RIN 1018-BE10
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for Endangered Florida Bonneted Bat
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Revised proposed rule; request for comments.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are revising
our proposed designation of critical habitat for the Florida bonneted
bat (Eumops floridanus) under the Endangered Species Act of 1973 (Act),
as amended. In response to new information we received and public
comments on our June 10, 2020, proposed rule, we are now proposing to
designate approximately 1,174,011 acres (475,105 hectares) in 13
Florida counties as critical habitat for the species. We also announce
the availability of a draft economic analysis (DEA) of the revised
proposed designation of critical habitat for the Florida bonneted bat.
We request comments from all interested parties on this revised
proposed rule and the associated DEA. Comments submitted on our June
10, 2020, proposed rule need not be resubmitted as they will be fully
considered in the preparation of the final rule. If we finalize this
rule as proposed, it would extend the Act's protections to this
species' critical habitat.
DATES: We will accept comments on this revised proposed rule and the
DEA that are received or postmarked on or before January 23, 2023.
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
January 6, 2023.
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-2019-0106,
which is the docket number for this rulemaking. Then, click on the
Search button. On the resulting page, in the Search 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-2019-0106, 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 DEA and other supporting
documents are included in the decision file and are available at
<a href="https://www.regulations.gov">https://www.regulations.gov</a> under Docket No. FWS-R4-ES-2019-0106.
Coordinates or plot points or both from which the critical habitat maps
are generated are available at <a href="https://www.regulations.gov">https://www.regulations.gov</a> under Docket
No. FWS-R4-ES-2019-0106 and the Florida Ecological Services Field
Office website at <a href="https://www.fws.gov/office/florida-ecological-services/library">https://www.fws.gov/office/florida-ecological-services/library</a>.
FOR FURTHER INFORMATION CONTACT: Lourdes Mena, Classification and
Recovery Division Manager, U.S. Fish and Wildlife Service, Florida
Ecological Services Field Office, 7915 Baymeadows Way, Suite 200,
Jacksonville, FL 32256; telephone (904) 731-3134. 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,
when we determine that any species is an endangered or threatened
species, we are required to designate critical habitat, to the maximum
extent prudent and determinable. Designations of critical habitat can
only be completed by issuing a rule.
What this document does. This document revises the proposed
designation of critical habitat for the Florida bonneted bat to include
a total of approximately 1,174,011 acres (475,105 hectares) in portions
of 13 Florida counties. On October 2, 2013, we published in the Federal
Register (78 FR 61004) a final rule listing the Florida bonneted bat as
an endangered species. On June 10, 2020, we published in the Federal
Register (85 FR 35510) a proposed rule to designate critical habitat
for this species. This document revises the proposed designation of
critical habitat for the Florida bonneted bat.
The basis for our action. Section 3(5)(A) of the Act defines
critical habitat as (i) the specific areas within the geographical area
occupied by the species, at the time it is listed, on which are found
those physical or biological features (I) essential to the conservation
of the species and (II) which may require special management
considerations or protections; and (ii) specific areas outside the
geographical area occupied by the species at the time it is listed,
upon a determination by the Secretary that such areas are essential for
the conservation of the species. Section 4(b)(2) of the Act states that
the Secretary must make the designation on the basis of the best
scientific data available and after taking into consideration the
economic impact, the impact on national security, and any other
relevant impacts of specifying any particular area as critical habitat.
Draft economic analysis of the revised proposed designation of
critical habitat. In order to consider the economic impacts of critical
habitat for the Florida bonneted bat, we compiled information
pertaining to the potential incremental economic impacts for this
revised proposed critical habitat designation. The information we used
in determining the economic impacts of the revised proposed critical
habitat is summarized in this revised proposed rule (see Consideration
of Economic Impacts, below) and is available at <a href="https://www.regulations.gov">https://www.regulations.gov</a> at Docket No. FWS-R4-ES-2019-0106. We are
soliciting public comments on the economic information provided and any
other potential economic impacts of this revised proposed designation.
We will continue to reevaluate the potential economic impacts between
this proposal and our final designation.
Public comment. We requested and received public comments on our
June 10, 2020, proposed rule to designate critical habitat for the
Florida bonneted bat. Those comments primarily consist of requests for
exclusion, requests for the designation of additional areas, and
comments on the physical or biological features and associated
methodology used to identify proposed units (see New Information and
Revisions to
[[Page 71467]]
Previously Proposed Critical Habitat, below). Those comments are
already part of the public record of this rulemaking proceeding and are
available for public viewing at <a href="https://www.regulations.gov">https://www.regulations.gov</a> under
Docket No. FWS-R4-ES-2019-0106. We now seek comments and solicit
information from the public on this revised proposed designation to
make sure we consider the best scientific and commercial information
available in developing our final designation. Because we will consider
all comments and information we receive during the comment period, our
final determination may differ from this proposal. We will provide
responses to comments we received during both public comment periods in
our final rule.
Peer review. We sought peer review on our June 10, 2020, proposed
rule and received comments from two reviewers (see New Information and
Revisions to Previously Proposed Critical Habitat, below). We are again
seeking comments from independent specialists to ensure that this
revised proposed designation of critical habitat for the Florida
bonneted bat is based on scientifically sound data and analyses. We
have invited these peer reviewers to comment on our specific
assumptions and conclusions in this revised critical habitat proposal.
Information Requested
We intend that any final action resulting from this revised
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 revised proposed rule. Please
note that comments submitted on our June 10, 2020, proposed rule need
not be resubmitted as they will be fully considered in the preparation
of the final rule. Additionally, due to the ongoing challenges
regarding the 2019 regulations, we also seek comments on whether and
how applying the regulations that were in effect before the 2019
regulations would alter any of these analyses.
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;
(b) The present or threatened destruction, modification, or
curtailment of a species' habitat or range is not a threat to the
species, or threats to the species' habitat stem solely from causes
that cannot be addressed through management actions resulting from
consultations under section 7(a)(2) of the Act;
(c) Areas within the jurisdiction of the United States provide no
more than negligible conservation value, if any, for a species
occurring primarily outside the jurisdiction of the United States; or
(d) No areas meet the definition of critical habitat.
(e) The Secretary otherwise determines that designation of critical
habitat would not be prudent based on the best scientific data
available.
In addition, we seek comment regarding whether and how this
information would differ under the factors that the pre-2019
regulations identify as reasons why designation of critical habitat may
be prudent.
(2) Specific information on:
(a) The amount and distribution of Florida bonneted bat habitat;
(b) Any additional areas occurring within the range of the species
(i.e., Miami-Dade, Monroe, Lee, Collier, Charlotte, Polk, Osceola,
Okeechobee, Highlands, Broward, Sarasota, Hardee, Glades, Palm Beach,
Martin, and DeSoto Counties, Florida) that 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.
(c) Special management considerations or protection that may be
needed in critical habitat areas we are proposing, including
information related to the impacts that noise and light pollution and
pesticides usage may have on critical habitat, as well as managing for
the potential effects of climate change; and
(d) For areas not occupied at the time of listing essential for the
conservation of the species, we particularly seek comments:
(i) Regarding whether occupied areas are adequate for the
conservation of the species; and
(ii) Providing specific information regarding whether or not
unoccupied areas would, with reasonable certainty, contribute to the
conservation of the species and contain at least one physical or
biological feature essential to the conservation of the species.
We also seek comments or information regarding whether areas not
occupied at the time of listing could be considered habitat for the
species.
(3) Characteristics of roost trees.
(4) Land use designations and current or planned activities in the
subject areas and their possible impacts on proposed critical habitat.
(5) 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.
(6) Information on the extent to which the description of probable
economic impacts in the draft economic analysis (DEA) for the revised
proposed rule is a reasonable estimate of the likely economic impacts
and any additional information regarding probable economic impacts that
we should consider.
(7) 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. We are particularly interested in
information concerning those areas described below in tables 2 and 3.
If you think we should exclude these or any additional areas, please
provide information regarding the benefit of exclusion that you have
not already submitted to us, as comments submitted on our June 10,
2020, proposed rule need not be resubmitted and will be fully
considered in the preparation of the final rule.
(8) Whether we could improve or modify our approach to designating
critical habitat in any way to provide for greater public participation
and understanding, or to better accommodate public concerns and
comments.
Please include sufficient information with your submission (such as
scientific journal articles or other publications) to allow us to
verify any scientific or commercial information you include.
Please note that submissions merely stating support for, or
opposition to, the action under consideration without providing
supporting information, although noted, will not be considered in
making a final critical habitat determination.
You may submit your comments and materials concerning this proposed
rule
[[Page 71468]]
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 at <a href="https://www.regulations.gov">https://www.regulations.gov</a> under
Docket No. FWS-R4-ES-2019-0106.
Because we will consider all comments and information we receive
during the comment period, our final determination may differ from this
revised 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 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 these virtual public
hearings is consistent with our regulations at 50 CFR 424.16(c)(3).
Previous Federal Actions
Federal actions for the Florida bonneted bat that occurred prior to
October 4, 2012, are outlined in our proposed listing rule for the
species (see 77 FR 60750, October 4, 2012). On October 2, 2013, after
consideration of the available scientific information, and peer review
and public comments on the proposed listing rule, we listed the Florida
bonneted bat as an endangered species (78 FR 61004). Critical habitat
was considered prudent but not determinable at the time of listing due
to the lack of information on the physical or biological features
essential for the species' conservation. Additional research helped
define those physical or biological features, and on June 10, 2020, we
proposed to designate critical habitat for the Florida bonneted bat (85
FR 35510). During the public comment period on the June 10, 2020,
proposed rule, we received significant new information on genetics as
well as presence and roost data; following the comment period, we
developed a conservation strategy to serve as a foundation for critical
habitat criteria and methodology, revised the physical or biological
features essential for the conservation of the species, and revised our
proposed critical habitat designation in lieu of preparing a final
rule. This document presents our revised proposed critical habitat
designation for the Florida bonneted bat.
Supporting Documents
Starting in 2016, the Service has been preparing species status
assessment (SSA) reports to compile and evaluate the best scientific
information available to inform listing and other decisions under the
Act. Since this species was listed before this process was implemented,
there was no SSA for the Florida bonneted bat at the time the proposed
critical habitat designation published (June 10, 2020). A recovery
outline and a conservation strategy have been prepared for this
species. The Florida Bonneted Bat Recovery Outline is a brief document
that broadly sketches the interim conservation and management program
for the Florida bonneted bat during the time between the final listing
under the Act and completion of a recovery plan. The Florida Bonneted
Bat Conservation Strategy provides a technical foundation for recovery
strategies, summarizing the best scientific data available concerning
the status of the species and threats affecting the species, and
outlines goals and objectives for achieving recovery of the Florida
bonneted bat. These documents have been prepared based on input and
information from researchers and species experts.
Additional documents that we considered in revising our proposed
critical habitat designation include a list of conservation lands that
overlap with the proposed designation, conservation and natural
resource management plans for areas we are considering for exclusion,
and a summary of the habitat analysis conducted to inform delineation
of the proposed critical habitat units. All of these supporting
documents are available at <a href="https://www.regulations.gov">https://www.regulations.gov</a> under Docket No.
FW-R4-ES-2019-0106.
Background
The purpose of this document is to discuss only those topics
directly relevant to this revised proposed critical habitat
designation. For more information on the species, its habitat, and
previous Federal actions concerning the Florida bonneted bat, refer to
the final listing rule published in the Federal Register on October 2,
2013 (78 FR 61004) and the proposed critical habitat rule published in
the Federal Register on June 10, 2020 (85 FR 35510).
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;
collectively, the 2019 regulations). 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. Subsequently, 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 the governing
law as of September 21, 2022.
Due to the continued uncertainty resulting from the ongoing
litigation, we also undertook an analysis of whether the proposal would
be different if we were to apply the pre-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 pre-2019 regulations
because under either regulatory scheme we find that critical habitat is
prudent and that the occupied areas proposed for the Florida bonneted
bat are adequate to ensure the conservation of the species.
In our June 10, 2020, proposed rule, we proposed to designate
critical habitat
[[Page 71469]]
in four units encompassing approximately 1,478,333 acres (ac) (598,261
hectares (ha)) in portions of 10 Florida counties. In addition, we
announced the availability of a DEA of the proposed critical habitat
designation. We accepted comments on the proposed critical habitat
designation and DEA for 60 days, ending August 10, 2020. Based on
information we received during the public comment period, we are
revising our proposed critical habitat designation for the Florida
bonneted bat. This revised proposed rule has a 60-day comment period
(see DATES, above) to allow all interested parties to submit comments
on our revised proposed critical habitat designation for the Florida
bonneted bat.
New Information and Revisions to Previously Proposed Critical Habitat
During the public comment period on our June 10, 2020, proposed
rule, we received over 1,800 responses, as well as comments from two
peer reviewers. We received comments questioning the essential physical
or biological features we identified (specifically, our description of
representative forest types, definition and use of ``core areas,'' and
definition and use of a minimum patch size) and the relationship of
those features to our critical habitat criteria and methodology.
Because our incorporation of a minimum patch size precluded the
consideration of habitat within urban Miami-Dade County, many comments
addressed the importance of this area to the species and provided
information (e.g., historical use, observed activity) regarding why it
meets the definition of critical habitat. Comments received also
addressed the need to directly incorporate all available presence
information into our habitat analysis and critical habitat methodology
and expressed concerns regarding a lack of redundancy provided in the
proposed units for the species to withstand catastrophic events. In
addition, since the proposed rule was published, we received new
information regarding genetic diversity and structure of the species,
as well as new presence and roost data. Upon further review of the best
available information, we have decided to use average measurements to
describe the characteristics of roost trees rather than the minimum
measurements used in our June 10, 2020, proposed rule. In this
revision, we also provide additional roost-related measurements to
better reflect the characteristics required by the Florida bonneted
bat.
Therefore, after fully considering the public comments we received
on our June 10, 2020, proposed rule and new information that became
available after the publication of that proposed rule, we revise our
proposed critical habitat designation for the Florida bonneted bat
based on changes to the physical or biological features and the
criteria and methodology used to identify those specific areas that
constitute critical habitat. Due to the comprehensive nature of these
revisions, this document presents an entirely new, revised proposed
critical habitat designation for the species. The DEA for the proposed
critical habitat designation has also been revised and is summarized
below (see Consideration of Economic Impacts).
Physical or Biological Features Essential to the Conservation of the
Species
In accordance with section 3(5)(A)(i) of the Act and regulations at
50 CFR 424.12(b), in determining which areas we will designate as
critical habitat from within the geographical area occupied by the
species at the time of listing, we consider the physical or biological
features that are essential to the conservation of the species and that
may require special management considerations or protection. The
regulations at 50 CFR 424.02 define ``physical or biological features
essential to the conservation of the species'' as the features that
occur in specific areas and that are essential to support the life-
history needs of the species, including, but not limited to, water
characteristics, soil type, geological features, sites, prey,
vegetation, symbiotic species, or other features. A feature may be a
single habitat characteristic or a more complex combination of habitat
characteristics. Features may include habitat characteristics that
support ephemeral or dynamic habitat conditions. Features may also be
expressed in terms relating to principles of conservation biology, such
as patch size, distribution distances, and connectivity. For example,
physical features essential to the conservation of the species might
include gravel of a particular size required for spawning, alkaline
soil for seed germination, protective cover for migration, or
susceptibility to flooding or fire that maintains necessary early-
successional habitat characteristics. Biological features might include
prey species, forage grasses, specific kinds or ages of trees for
roosting or nesting, symbiotic fungi, or a particular level of
nonnative species consistent with conservation needs of the listed
species. The features may also be combinations of habitat
characteristics and may encompass the relationship between
characteristics or the necessary amount of a characteristic essential
to support the life history of the species.
In considering whether features are essential to the conservation
of the species, 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; cover or
shelter; sites for breeding, reproduction, or rearing (or development)
of offspring; food, water, air, light, minerals, or other nutritional
or physiological requirements; and habitats with appropriate
disturbance regimes (for more information, see the proposed listing
rule (77 FR 60750; October 4, 2012) and the Florida Bonneted Bat
Conservation Strategy (see Supporting Documents)). We summarize below
the more important habitat characteristics, particularly those that
support the description of physical and biological features essential
to the conservation of the Florida bonneted bat. For Food, Water, Air,
Light, Minerals, or Other Nutritional or Physiological Requirements,
please see this section in the proposed critical habitat rule (85 FR
35510, June 10, 2020). We also consider these habitat features relative
to the scale at which Florida bonneted bats use the features, allowing
us to more logically organize the physical and biological features to
delineate the critical habitat.
Space for Individual and Population Growth and for Normal Behavior
Due to the spatial variability of their prey, large size, and wing
morphology, this species has significant spatial needs for foraging.
Insect abundance, density, and community composition frequently vary
across space and over time based on season and environmental
conditions. As a result of this spatial variability, Florida bonneted
bats may need to travel far distances and feed over large areas to
satisfy dietary needs. For example, Florida bonneted bats from Fred C.
Babcock-Cecil M. Webb Wildlife Management Area (Babcock-Webb WMA), on
average, traveled 9.5 miles (mi) (15 kilometers (km)) from their roosts
and flew 24 mi (39 km) total per night (Webb et al. 2018, p. 8; Webb
2018, pers. comm.). These bats also traveled maximum distances of over
24 mi (39 km) from their roosts and over 56 mi (90 km) total in one
night (Webb et al. 2018, p. 8; Webb 2018, pers. comm.). Florida
bonneted bats also require open areas for foraging due to their large
body size and morphology of
[[Page 71470]]
their wings, which are designed for fast and efficient, but less
maneuverable, flight.
This large bat relies on swarms of larger insects for feeding;
thus, foraging habitat for the Florida bonneted bat consists of areas
that hatch and concentrate insects of this size, including vegetated
areas and waterways. These bats also frequently feed on insects from
agricultural areas and golf courses (Bailey et al. 2017a, entire).
Ecologically diverse areas of suitable habitat representing the
geographic extent of the species' range are also important for
population growth and persistence. The major ecological communities
(Myers and Ewel 1990, entire; Service 1999, entire; FNAI 2010, entire)
that provide Florida bonneted bat roosting habitat in central and
southern Florida include: pine rocklands (south Florida rockland,
rockland pine forest, rockland hammock); cypress communities (cypress
swamps, strand swamps, domes, sloughs, ponds); hydric pine flatwoods
(wet flatwoods); mesic pine flatwoods; and high pine. A variety of
other habitats may be used as well (Bailey et al. 2017a, entire).
Diverse, open foraging habitats (e.g., prairies, riverine habitat) are
also important. Adequate roosting and foraging habitats are essential
to the species, as they provide the diversity necessary to allow for
population resiliency following minor disturbances (e.g., loss of roost
tree, cold snap) as well as more significant stochastic events (e.g.,
hurricane, drought, forest disease, climate change).
Structural connectivity (suitable habitat in the form of linear
corridors or patches creating ``stepping stones'') facilitates the
recolonization of extirpated populations; facilitates the establishment
of new populations; and allows for natural behaviors needed for
foraging, exploratory movements, and dispersal. Four genetically
differentiated populations of the Florida bonneted bat have been
identified (Charlotte, Polk/Osceola, Lee/Collier, and Miami-Dade
Counties) (Austin et al. 2022, entire; see also Florida Bonneted Bat
Conservation Strategy in Supporting Documents). While dispersal of
Florida bonneted bats appears to be geographically restricted between
populations, the geographic extent of the four genetically
differentiated areas is not yet known, and maintaining structural
connectivity to allow for ongoing and future functional connectivity
(i.e., actual movement of animals and/or exchange of genes) between
known populations remains important to the species for resiliency as
well as population stability and growth (Austin et al. 2022, pp. 507-
508). Structural connectivity in the form of vegetated corridors with
opportunities for roosting and/or foraging, vegetated river corridors
and other areas with freshwater available year-round, and habitat
patches such as pine rockland fragments and tree islands are needed to
provide and maintain connections between regions where known Florida
bonneted bat populations occur. Maintaining viable populations in each
of the known genetically differentiated areas and protecting
connectivity is necessary for the demographic and genetic health of the
species. Therefore, it is important that this species has areas of
ecologically diverse and connected habitat including sufficient amounts
of open foraging habitat.
Cover or Shelter
The Florida bonneted bat primarily roosts in tree cavities, either
as individuals or small or large colonies (Ober et al. 2017, p. 378;
Braun de Torrez et al. 2020a, p. 6; 2020b, entire). Roosts provide
protection from sunlight, adverse weather, and predators; sites for
mating, rearing of young, social interaction and information sharing,
resting, and digestion of food; and microclimate stability (Kunz 1982,
entire; Ormsbee et al. 2007, pp. 130-135; Marks and Marks 2008a, p. 4;
Dechmann et al. 2010, pp. 1-7; Bohn 2012, in litt.).
Florida bonneted bat roosts are difficult to locate; only 36
natural roosts have been identified (not all currently occupied), the
first in 2013 (Angell and Thompson 2015, entire; Braun de Torrez et al.
2020b, entire; Braun de Torrez 2021, pers. comm.; Borkholder 2022,
pers. comm.; Braun de Torrez 2022, pers. comm.). Known natural roosts
have been documented in the following tree species: slash pine (Pinus
elliottii), longleaf pine (Pinus palustris), bald cypress (Taxodium
distichum), and royal palm (Roystonea regia) (Braun de Torrez et al.
2020b, entire). A significant proportion of known roosts are in snags
of these tree species (Braun de Torrez et al. 2020b, entire). One non-
volant (flightless) pup was found at the base of a live oak (Quercus
virginiana) hours after a tree cavity was bisected (Ridgley 2020, pers.
comm.); it is not known if this tree species is commonly used as a
roost site or may be used particularly where suitable trees are sparse.
Upon further review of the best available information, we have
modified the features relevant to roost trees to more accurately
reflect the characteristics required by Florida bonneted bat. Relative
to surrounding trees, Florida bonneted bat roost trees tend to have
greater overall height (averaging 57 feet (ft) (17 meters (m)),
diameter (averaging 15-inch (in) (38-centimeter (cm)) diameter at
breast height (dbh)), and canopy height relative to the adjacent canopy
(averaging 16 ft (5 m) taller than surrounding trees) (Braun de Torrez
et al. 2020b, entire; Braun de Torrez 2022, pers. comm.). The species
also appears to require sufficient unobstructed space for emergence,
with cavities averaging 35 ft (10.7 m) above the ground and roost trees
averaging 14 ft (4 m) from the nearest tree (Braun de Torrez et al.
2020b, entire; Braun de Torrez 2022, pers. comm.), often in open or
semi-open canopy and canopy gaps. Cavities may require a minimum of
approximately 19 ft (5.7 m) of ground clearance (Braun de Torrez et al.
2020b, entire; Braun de Torrez 2022, pers. comm.); however, there are
two instances of Florida bonneted bats using bat houses with
approximately 13 ft (4 m) of ground clearance in Miami-Dade County
(Ridgley 2021, unpublished data). Collectively, this indicates that
this species prefers large trees with adequate space around the cavity
for emergence. Solitary males may roost under loose bark, and loose or
shaggy bark has been documented as a night roost (e.g., Melaleuca).
However, Florida bonneted bats typically roost in cavities made by
other species (notably woodpeckers) or by natural damage caused by
fire, storms, or decay.
The Florida bonneted bat is suspected to have high roost-site
fidelity. Some roosts are used for several years by Florida bonneted
bat colonies, possibly decades (Myers 2013, pers. comm.; Scofield
2013a-b, pers. comm.; 2014a-b, pers. comm.; Bohn 2014, pers. comm.;
Gore et al. 2015, p. 183; Angell and Thompson 2015, p. 186; Hosein
2016, pers. comm.; Webb 2017, pers. comm.; B. Myers 2018, pers. comm.;
Aldredge 2019, pers. comm.). Conversely, natural roosts may frequently
succumb to natural causes (i.e., hurricanes, wildfire), resulting in
total loss or too much damage to allow for future roosting. At least 37
percent of the known natural roosts discovered since 2013 are now
uninhabitable (due to decay, hurricanes, and other factors) (Braun de
Torrez et al. 2020b, entire). Suitable roost sites are a critical
resource, are an ongoing need of the species, and may be limiting
population growth and distribution in certain situations. The loss of a
roost site may represent a greater impact to this species
[[Page 71471]]
relative to some other bat species (Ober 2012, in litt.).
Florida bonneted bats also roost in artificial structures (e.g.,
homes with barrel-tile roofs, chimneys, barns, hangars, utility poles)
and bat houses (Marks and Marks 2008b, p. 8; Morse 2008, entire; Trokey
2012a-b, pers. comm.; Gore et al. 2015, entire; see Use of Artificial
Structures (Bat Houses) in the final listing rule (78 FR 61004, October
2, 2013, p. 61010)). Despite clear evidence of their use, artificial
bat houses may not be ideal or a sufficient surrogate for natural
roosts. Pup mortalities and other events (e.g., pups falling from
roosts and unable to climb up metal poles or wood poles with predator
guards) have raised questions about heat build-up, insulation, proper
placement in the landscape, and bat house design (Crawford and O'Keefe
2021, entire). Therefore, natural roosts (i.e., live or dead trees and
tree snags, especially longleaf pine, slash pine, bald cypress, and
royal palm, on average 57 ft (17 m) in height and an average 15-in (38-
cm) dbh that are emergent from the surrounding canopy (by an average 16
ft (5 m)) and have unobstructed space for emergence) are important
habitat characteristics for this species.
Sites for Breeding, Reproduction, or Rearing (or Development) of
Offspring
Sites supporting the Florida bonneted bats' breeding activities
appear to be required year-round (Timm and Genoways 2004, p. 859; Ober
et al. 2017, p. 382; Bailey et al. 2017b, p. 556; see also Life History
in the final listing rule (78 FR 61004, October 2, 2013, pp. 61005-
61006) and Food, Water, Air, Light, Minerals, or Other Nutritional or
Physiological Requirements in the proposed critical habitat rule (85 FR
35510, June 10, 2020)). Reproductively active adults have been observed
during August, December, and April capture sessions, and non-volant
pups (young not yet capable of flying) have been documented in roosts
in every month other than February and March (Scofield 2014b, pers.
comm.; Angell and Thompson 2015, p. 186; Ridgley 2015, pers. comm.;
Ober et al. 2017, pp. 381, 383-384; Gore 2017, pers. comm.; J. Myers
2018, pers. comm.; 2020, pers. comm.). Based upon these data,
flightless young bonneted bats and females with high energetic demands
due to pregnancy and lactation may be vulnerable to disturbance for at
least 10 months of the year. Most roosting bats are sensitive to human
disturbance (Kunz 1982, p. 32), and maternity colonies may be
especially intolerant of disturbance (Harvey et al. 1999, p. 13; see
also Inadvertent and Purposeful Impacts from Humans in the final
listing rule (78 FR 61004, October 2, 2013, pp. 61033-61034)).
Florida bonneted bat colonies conform to a harem structure (one
dominant male, several reproductively active females and their young;
Ober et al. 2017, p. 382). This type of social organization, together
with evidence of high roost-site fidelity, underscores the importance
of roosts to this species for population maintenance, growth, and
natural behaviors. Disturbance of a roost at any time can alter social
dynamics and impact reproductive success (Ober et al. 2017, p. 382).
Accordingly, areas where roosting and other natural behaviors can occur
undisturbed are important in considering the conservation of the
species.
Food, Water, Air, Light, Minerals, or Other Nutritional or
Physiological Requirements
Our discussion of these habitat characteristics is unchanged from
the proposed rule (85 FR 35510, June 10, 2020).
Habitats With Appropriate Disturbance Regimes
The Florida bonneted bat not only requires healthy and ecologically
diverse habitat; the species also needs areas with an appropriate
disturbance regime. The Florida bonneted bat's entire range is within
the fire-dependent and fire-adapted landscape of central and south
Florida (Noss 2018, entire). The species uses fire-dependent vegetation
communities for roosting (Belwood 1992, pp. 219-220; Angell and
Thompson 2015, entire; Braun de Torrez et al. 2016, p. 240) and
foraging (Bailey et al. 2017a, entire; Braun de Torrez et al. 2018a-c,
entire). Florida bonneted bats appear to be attracted to recently
burned areas (Braun de Torrez et al. 2018a, entire); it appears that
Florida bonneted bats are fire-adapted and benefit from prescribed burn
programs that closely mimic historical fire regimes. Fires during the
historical fire season (i.e., early wet season, April through June) at
a moderate frequency (more than 3 to 5 years) appear to optimize
habitat for bats in both pine flatwoods and prairies (Braun de Torrez
et al. 2018b, pp. 6-9). Fire may result in an increase of suitable
roosts (i.e., create more snags and cavities), more open flight space,
and increased prey availability (Boyles and Aubrey 2006, pp. 111-113;
Armitage and Ober 2012, pp. 107-109; O'Keefe and Loeb 2017, p. 271;
Braun de Torrez et al. 2018a, p. 1120; 2018b, pp. 8-9).
Fire also has the potential to harm bats through disturbance or
destruction of roost trees (Morrison and Raphael 1993, p. 328;
Dickinson et al. 2010, pp. 2196-2200). Despite the risks that Florida
bonneted bats may abandon roosts, or roosts and pups may be lost during
fires, it is critical for fires to occur on the landscape to maintain
suitable habitat; precautions can be taken to reduce risks
appropriately (see Inadvertent Impacts from Land Management Practices,
below). Therefore, based on the information in this discussion, we
identify areas of diverse habitat types and ecological communities
maintained via appropriate disturbance regimes as essential physical or
biological features for this species.
Summary of Essential Physical or Biological Features
We derive the specific physical or biological features essential to
the conservation of Florida bonneted bat from studies of the species'
habitat, ecology, and life history as described below and further in
the Florida Bonneted Bat Conservation Strategy (see Supporting
Documents) and the proposed and final listing rules (77 FR 60750,
October 4, 2012; 78 FR 61004, October 2, 2013). We have determined that
the following physical or biological features are essential to the
conservation of the Florida bonneted bat:
(1) Habitats that provide for roosting and rearing of offspring.
Such habitat provides structural features for rest, digestion of food,
social interaction, mating, rearing of young, protection from sunlight
and adverse weather conditions, and cover to reduce predation risks for
adults and young, and is generally characterized by:
(a) Live or dead trees and tree snags, especially longleaf pine,
slash pine, bald cypress, and royal palm, that are on average 57 ft (17
m) in height and with an average 15-in (38-cm) dbh and that are
emergent from the surrounding canopy (by an average 16 ft (5 m)); and
(b) Sufficient unobstructed space, with cavities averaging 35 ft
(10.7 m) above the ground and roost trees averaging 14 ft (4 m) from
the nearest tree, for Florida bonneted bats to emerge from roost trees;
this may include open or semi-open canopy and canopy gaps.
(2) Habitats that provide adequate prey and space for foraging,
which may vary widely across the Florida bonneted bat's range, in
accordance with ecological conditions, seasons, and disturbance regimes
that influence vegetation structure and prey species' distributions.
Foraging habitat may be separate and relatively far from roosting
habitat. Essential foraging habitat consists of open areas in or near
areas
[[Page 71472]]
of high insect production or congregation, commonly including, but not
limited to:
(a) Freshwater edges and freshwater herbaceous wetlands (permanent
or seasonal);
(b) Prairies;
(c) Wetland and upland shrub; and/or
(d) Wetland and upland forests.
(3) A dynamic disturbance regime (e.g., fire, hurricanes, forest
management) that maintains and regenerates forested habitat, including
plant communities, open habitat structure, and temporary gaps, which is
conducive to promoting a continual supply of roosting sites, prey
items, and suitable foraging conditions.
(4) A sufficient quantity and diversity of habitats to enable the
species to be resilient to short-term impacts associated with
disturbance over time (e.g., drought, forest disease). This quantity
and diversity are essential to provide suitable conditions despite
temporary alterations to habitat quality. The ecological communities
the Florida bonneted bat inhabits differ in hydrology, fire frequency/
intensity, climate, prey species, roosting sites, and threats, and
include, but are not limited to:
(a) Pine rocklands;
(b) Cypress communities (cypress swamps, strand swamps, domes,
sloughs, ponds);
(c) Hydric pine flatwoods (wet flatwoods);
(d) Mesic pine flatwoods; and
(e) High pine.
(5) Habitats that provide structural connectivity where needed to
allow for dispersal, gene flow, and natural and adaptive movements,
including those that may be necessitated by climate change. These
connections may include linear corridors such as vegetated, riverine,
or open-water habitat with opportunities for roosting and/or foraging,
or patches (i.e., stepping stones) such as tree islands or other
isolated natural areas within a matrix of otherwise low-quality
habitat.
(6) A subtropical climate that provides tolerable conditions for
the species such that normal behavior, successful reproduction, and
rearing of offspring are possible.
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. Recovery of the Florida bonneted bat will require special
management considerations or protection of the physical or biological
features including passive (e.g., allowing natural processes to occur
without intervention) and active (e.g., taking actions to restore and
maintain habitat conditions or address threats) management. The
features essential to the conservation of this species may require
special management considerations or protection to reduce the threats
that are related to inadvertent impacts from land management practices
are discussed below. For discussion of special management
considerations or protection required to reduce threats related to
Habitat Loss, Climate Change and Sea-level Rise, Environmental
Stochasticity, and Pesticides and Contaminants, see these sections in
the proposed critical habitat rule (85 FR 35510, June 10, 2020).
Inadvertent Impacts From Land Management Practices
Forest management can help maintain and improve the Florida
bonneted bat's roosting and foraging habitat (see Use of Forests and
Other Natural Areas in the final listing rule (78 FR 61004, October 2,
2013, pp. 61007-61010)), and a lack of forest management, including a
lack of prescribed fire, can be detrimental to the species. Prescribed
burns may benefit Florida bonneted bats by improving habitat structure,
enhancing the prey base, and creating openings; restoration of fire to
fire-dependent forests may improve foraging habitat for this species
and create snags (Carter et al. 2002, p. 139; Boyles and Aubrey 2006,
pp. 111-113; Lacki et al. 2009, entire; Armitage and Ober 2012, pp.
107-109; FWC 2013, pp. 9-11; Ober and McCleery 2014, pp. 1-3; Braun de
Torrez et al. 2018a-b, entire).
Fire is a vital component in maintaining suitable Florida bonneted
bat habitat (Braun de Torrez et al. 2018b, entire), and while many
prescribed fire and other land management practices mimic natural
processes and benefit native species on broad spatial and temporal
scales, these activities can result in inadvertent negative impacts in
the near term. For example, extensive removal of trees with cavities or
hollows during activities associated with forest management, fuel
reduction, vista management, off-road vehicle trail maintenance,
prescribed fire, or habitat restoration may inadvertently remove roost
sites or reduce the availability of roost sites (see Land Management
Practices in the final listing rule (78 FR 61004, October 2, 2013, p.
61027)).
Cavity-roosting bats may be susceptible to fire effects (Carter et
al. 2002, p. 140). Loss of active roosts or removal during critical
life-history stages (e.g., when females are pregnant or rearing young)
is of greatest concern, given the species' apparent small population
size and low fecundity (Bailey et al. 2017b, p. 556; see also Effects
of Small Population Size, Isolation, and Other Factors in the final
listing rule (78 FR 61004, October 2, 2013, pp. 61036-61037)). Risk
from forest management may be minimized by conducting activities
outside the bat's peak breeding season (April 15 to August 15),
protecting known roost sites, or avoiding potential roost sites, as
disturbance to roost sites at any time of the year may alter social
dynamics and reproductive success (Blumstein 2010, pp. 665-666; Ober et
al. 2017, p. 382). Special management considerations or protections to
retain the essential physical or biological features for Florida
bonneted bat include annual or seasonal monitoring efforts, or
monitoring conducted prior to (but coordinated with) annual fire or
forest management planning that can identify sensitive areas and
incorporate appropriate avoidance or minimization measures. Developing
additional avoidance or minimization measures for common management
practices and activities (see the Florida Bonneted Bat Consultation
Guidelines in Supporting Documents) on specific properties can also
reduce negative effects. Retaining potential roost trees, wherever
possible, may also reduce competition for tree cavities (see
Competition for Tree Cavities in the final listing rule (78 FR 61004,
October 2, 2013, pp. 61034-61035)), and promote survival and the
potential for population expansion over the long term.
The features essential to the conservation of the Florida bonneted
bat may require special management considerations or protection to
reduce threats and conserve these features. Actions that could
ameliorate threats include, but are not limited to:
(1) Retaining and actively managing a habitat network of large and
diverse conservation lands throughout the Florida bonneted bat's range;
(2) Protecting, restoring, or enhancing inland or higher elevation
habitats that are predicted to be unaffected or less affected by sea-
level rise;
(3) Protecting habitats that support high insect diversity and
abundance, and avoiding the excessive use of pesticides wherever
possible;
(4) Retaining potential roost trees and snags (see Cover or
Shelter, above);
[[Page 71473]]
(5) Conducting annual or seasonal monitoring efforts, or monitoring
conducted prior to (but coordinated with) annual fire or forest
management planning; and
(6) Developing and implementing specific guidelines (see the
Florida Bonneted Bat Consultation Guidelines in Supporting Documents)
to minimize impacts of activities associated with hurricane clean-up,
prescribed fire, invasive species management, forest management, and
development.
Special Management Previously Considered
In the June 10, 2020, proposed rule to designate critical habitat
for the Florida bonneted bat (85 FR 35510), we considered ecological
light pollution to be a potential threat to the Florida bonneted bat
and its habitat that would likely require special management. However,
as we described in the final listing rule, the Florida bonneted bat's
behavioral response to ecological light pollution has not been
examined, and effects are not known (78 FR 61004, October 2, 2013, p.
61036). The species' fast-flight and long-range flight capabilities may
make it more able to exploit insects congregated at artificial light
sources and more susceptible to risks associated with such responses
(e.g., increased predation or harm from humans). Alternatively,
artificial lighting may not be influencing the species' foraging or
other behaviors. Accordingly, at this time, there continues to be
little information about the potential effects of light pollution on
the Florida bonneted bat.
Therefore, upon further review of the best available information,
we have removed ecological light pollution as a potential threat to the
species that may require special management considerations or
protection, but we specifically request comments on this matter.
Conservation Strategy and Selection Criteria Used To Identify Critical
Habitat
Conservation Strategy
As required by section 4(b)(2) of the Act, we use the best
scientific data available to designate critical habitat. In accordance
with the Act and our implementing regulations at 50 CFR 424.12(b), we
review available information pertaining to the habitat requirements of
the species and identify specific areas within the geographical area
occupied by the species at the time of listing and any specific areas
outside the geographical area occupied by the species to be considered
for designation as critical habitat. We are not currently proposing to
designate any areas outside the geographical area occupied by the
species because we have not identified any unoccupied areas that meet
the definition of critical habitat. The occupied areas identified
encompass the varying types and distribution of habitat needed by the
species and provide sufficient habitat to allow for maintaining and
potentially expanding the populations.
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
Florida bonneted bat, we incorporated information from the conservation
strategy for the species. The goal of our conservation strategy for the
Florida bonneted bat is to recover the species to the point where the
protections of the Act are no longer necessary. The role of critical
habitat in achieving this conservation goal is to identify the specific
areas within the Florida bonneted bat's range that provide essential
physical and biological features without which the Florida bonneted
bat's rangewide resiliency, redundancy, and representation could not be
achieved. Specifically, this conservation strategy helped identify
those areas within the Florida bonneted bat's range that contain the
physical and biological features without which rangewide resiliency,
redundancy, and representation could not be achieved. Our conservation
strategy identified goals, from which we developed the following six
critical habitat criteria for determining the specific areas that
contain the physical and biological features essential to the
conservation of the species:
(1) Genetic diversity--To maintain viable populations in each of
the known genetically differentiated areas (see Space for Individual
and Population Growth and for Normal Behavior, above), critical habitat
should include one unit within each of the four genetically
differentiated populations.
(2) Geographic extent--To maintain viable populations that are
distributed across the geographic range of the Florida bonneted bat
(see Current Distribution in the final listing rule (78 FR 61004,
October 2, 2013, pp. 61010-61011)), critical habitat units should
represent the extent of the species' existing known range.
(3) Ecological diversity--To maintain at least one viable
population in each major ecological community that provides roosting
habitat for the Florida bonneted bat (see Habitats with Appropriate
Disturbance Regimes, above), these community types should be well
represented in critical habitat units.
(4) Climate change resilience--To maintain at least one viable
population in suitable habitat predicted to be unaffected or less
affected by sea-level rise and climate change, critical habitat should
include one unit in the northern, inland portion of the Florida
bonneted bat's range.
(5) High conservation value (HCV) habitat--To maintain sufficient
habitat with HCV that supports the life history of the species within
each population, critical habitat units should incorporate multiple
areas that support roosting and foraging needs and that have HCV (as
informed by habitat analysis results and telemetry data).
(6) Structural connectivity--To maintain, enhance, and reestablish
connectivity within and between Florida bonneted bat populations,
critical habitat units should be configured within the central and
south Florida landscape to provide connectivity based on the best
available movement data for the species (see Space for Individual and
Population Growth and for Normal Behavior, above).
Selection Criteria and Methodology Used To Identify Critical Habitat
To delineate the specific areas that are occupied by the species
and that contain the physical and biological features essential to the
Florida bonneted bat's conservation, we conducted a habitat analysis.
Acknowledging some limitations in the information available, we used
the best available data to conduct our habitat analysis (see Florida
Bonneted Bat Habitat Analysis in Supporting Documents). Information
used in the habitat analysis and/or the delineation of critical habitat
units consists of the following:
(1) Confirmed presence data compiled in our Geographic Information
System (GIS) database from 2003 through 2021, and provided by the
Florida Fish and Wildlife Conservation Commission (FWC), University of
Florida (UF), and other various sources, including survey reports,
databases, and publications;
(2) Vegetation cover types from the Cooperative Land Cover map
(CLC; version 3.4) developed by FWC and Florida Natural Areas
Inventory;
(3) Canopy height from the global forest canopy height map (2019)
developed by Global Land Analysis and Discovery;
(4) Red-cockaded woodpecker (Picoides borealis) potential habitat
[[Page 71474]]
(2016) developed by FWC, based on evidence indicating Florida bonneted
bats use woodpecker cavities for roosting;
(5) Artificial sky luminance from the New World Atlas of Artificial
Sky Brightness developed by the Light Pollution Science and Technology
Institute (Falchi et al. 2016, entire);
(6) Fire frequency data provided by the Monitoring Trends in Burn
Severity program;
(7) Urban development data (2010 baseline) from the Florida 2070
project developed by the Florida Department of Agriculture and Consumer
Services, the UF GeoPlan Center, and 1000 Friends of Florida;
(8) Maps of unpublished telemetry data collected and provided by UF
and FWC; and
(9) ArcGIS online basemap aerial imagery (2018-2020) to cross-check
CLC data and ensure the presence of physical or biological features.
To help identify potential factors affecting Florida bonneted bat
use, we conducted a spatial analysis to quantify relationships of
habitat-related and other environmental variables with species
occurrence (see the Florida Bonneted Bat Habitat Analysis in Supporting
Documents)). Available presence data incorporated into the analysis
primarily consisted of acoustic data, as well as locations of known
roosts. Maps of telemetry locations were used to inform our evaluation
of HCV areas but were not part of the habitat analysis dataset because
coordinate data were not available at the time. We identified 10
covariates that related to habitat types (e.g., pine/cypress) and other
factors (e.g., fire history) thought to influence habitat suitability
and use by the Florida bonneted bat and modeled those at three spatial
scales (see the Florida Bonneted Bat Habitat Analysis in Supporting
Documents). Model output included predictive maps representing the
probability of species occurrence based on the covariates included in
the final models, and we used these maps to characterize the relative
habitat suitability and conservation value of areas within central and
south Florida. We also conducted sensitivity/specificity analyses to
identify an objective threshold value for each model, which we then
applied to identify areas with high conservation value to the species.
See the Florida Bonneted Bat Habitat Analysis in Supporting Documents
for full details of our methodology and results, including links to
data sources used.
We considered the model output and the conservation strategy to
determine the specific areas occupied by the species on which are found
the physical or biological features that are essential to the Florida
bonneted bat. Those specific areas (critical habitat units) were
identified and delineated using the following steps:
(1) We identified areas having high conservation value (as
described above) for the Florida bonneted bat based on model output
because those areas are likely to contain the combination of
characteristics that we have determined are essential physical or
biological features for the Florida bonneted bat.
(2) We refined these areas to eliminate any unsuitable or less
suitable areas that are unlikely to contain features essential to the
conservation of the species based on the Florida bonneted bat's biology
(e.g., temperature requirements) and aerial imagery.
(3) We considered telemetry maps and certain critical habitat
criteria that were not incorporated into the models (e.g.,
connectivity). Where telemetry maps indicated high use (e.g., HCV
foraging habitat), or where additional area was needed to ensure
sufficient connectivity, we delineated additional habitat using CLC
data and aerial imagery and based on model output and covariate
relationships identified in our habitat analysis.
(4) We evaluated the resulting units to determine whether occupied
habitat is adequate to ensure conservation of the species. We
specifically evaluated occupied units to ensure they fulfill all
critical habitat criteria and meet the goals and objectives in our
conservation strategy for identifying the areas that contain the
features that are essential to the Florida bonneted bat. Based on our
determination that occupied areas are sufficient for the conservation
of the species, no unoccupied habitat is included in this revised
proposed critical habitat designation.
When determining revised 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 physical or biological features necessary for the Florida bonneted
bat. 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), that contain one or more of the physical or biological
features that are essential to support life-history processes of the
species, and that may require special management considerations or
protection. We considered areas occupied at the time of listing if they
have documented presence of Florida bonneted bats from October 2013
through 2021. Due to the species' life span and high site fidelity, it
is reasonable to conclude that these areas found to be occupied in 2013
to 2021 would have been inhabited by Florida bonneted bats when the
species was listed in 2013. Each unit we propose to designate as
critical habitat contains all the identified physical or biological
features essential to the conservation of the species.
The revised 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-
2019-0106 and at the Florida Ecological Services Field Office website
at <a href="https://www.fws.gov/office/florida-ecological-services/library">https://www.fws.gov/office/florida-ecological-services/library</a>.
Revised Proposed Critical Habitat Designation
We are proposing to designate nine units as critical habitat for
the Florida bonneted bat. The critical habitat areas we describe below
constitute our best assessment of areas that meet the definition of
critical habitat for the Florida bonneted bat. The nine areas we
propose as critical habitat are: (1) Kissimmee Unit, (2) Peace River
Unit, (3) Babcock Unit, (4) Fisheating Creek Unit, (5) Corkscrew Unit,
(6) Big Cypress Unit, (7) Everglades Tree Islands Unit, (8) Long Pine
Key Unit, and (9) Miami-Dade Rocklands Unit. All nine units proposed as
critical habitat are occupied by the species. Table 1 shows the revised
proposed critical habitat units and the approximate area
[[Page 71475]]
of each unit/subunit within each land ownership category.
Table 1--Revised Proposed Critical Habitat Units and Subunits for the Florida Bonneted Bat, Including Acres (ac) and Hectares (ha) by Land Ownership Category
[Area estimates reflect all land within critical habitat unit boundaries, and land ownership was determined using the most recent parcel data provided by each county. All units are occupied]
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Land ownership: ac (ha)
Critical habitat unit/subunit ---------------------------------------------------------------------------------------------------------------- Total area: ac
Federal Tribal State County Local Private/other Unidentified (ha)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
1. Kissimmee.................................................... 99 (40) 1 (<1) 135,779 815 (330) 0 36,996 2,047 (828) 175,737
(54,948) (14,972) (71,118)
1A.......................................................... 90 (36) 0 135,343 612 (248) 0 31,241 2,047 (828) 169,331
(54,771) (12,643) (68,526)
1B.......................................................... 9 (4) 1 (<1) 437 (177) 203 (82) 0 5,755 (2,329) 0 6,405 (2,592)
2. Peace River.................................................. 32 (13) 0 6,389 (2,586) 563 (228) 165 (67) 19,047 (7,708) 1,850 (749) 28,046
(11,350)
2A.......................................................... 0 0 0 0 0 2,603 (1,053) 0 2,603 (1,053)
2B.......................................................... 0 0 0 0 0 5,478 (2,217) 200 (81) 5,678 (2,298)
2C.......................................................... 0 0 0 0 0 2,029 (821) 2 (1) 2,031 (822)
2D.......................................................... 32 (13) 0 6,389 (2,586) 563 (228) 165 (67) 8,938 (3,617) 1,648 (667) 17,734 (7,177)
3. Babcock...................................................... 0 0 108,509 782 (316) 19 (8) 23,929 (9,684) 322 (130) 133,560
(43,912) (54,050)
3A.......................................................... 0 0 80,043 782 (316) 19 (8) 7,392 (2,991) 322 (130) 88,559
(32,392) (35,839)
3B.......................................................... 0 0 28,466 0 0 16,536 (6,692) 0 45,001
(11,520) (18,211)
4. Fisheating Creek............................................. 0 0 7,689 (3,112) <1 0 5,300 (2,145) 6 (2) 12,995 (5,259)
5. Corkscrew.................................................... 0 0 26,226 5,265 (2,131) 13 (5) 17,319 (7,009) 41 (17) 48,865
(10,613) (19,775)
6. Big Cypress.................................................. 533,179 14,455 (5,850) 152,494 8,419 (3,407) 229 (93) 16,170 (6,544) 3,598 (1,456) 728,544
(215,770) (61,712) (294,831)
7. Everglades Tree Islands...................................... 16,538 (6,693) 0 1 (<1) 4 (2) 0 <1 60 (24) 16,604 (6,719)
8. Long Pine Key................................................ 25,142 0 2 (1) 0 0 187 (76) 5 (2) 25,337
(10,175) (10,254)
9. Miami Rocklands.............................................. 599 (242) 0 796 (322) 2,403 (972) 8 (3) 471 (190) 46 (19) 4,324 (1,750)
9A.......................................................... 0 0 0 52 (21) 0 <1 1 (<1) 53 (21)
9B.......................................................... 0 0 0 104 (42) 0 <1 1 (<1) 104 (42)
9C.......................................................... 0 0 0 5 (2) 0 <1 <1 5 (2)
9D.......................................................... 0 0 10 (4) 0 0 18 (7) 1 (<1) 28 (11)
9E.......................................................... 0 0 21 (8) 230 (93) <1 13 (5) 2 (1) 267 (108)
9F.......................................................... 140 (57) 0 0 <1 0 <1 <1 140 (57)
9G.......................................................... 0 0 8 (3) 0 0 19 (8) <1 28 (11)
9H.......................................................... 0 0 235 (95) 0 0 <1 3 (1) 238 (96)
9I.......................................................... 0 0 0 22 (9) 0 <1 <1 22 (9)
9J.......................................................... 0 0 60 (24) <1 8 (3) 28 (11) 3 (1) 99 (40)
9K.......................................................... 0 0 36 (15) <1 0 <1 <1 37 (15)
9L.......................................................... 0 0 77 (31) <1 <1 <1 <1 77 (31)
9M.......................................................... 0 0 0 114 (46) 0 <1 <1 114 (46)
9N.......................................................... 0 0 18 (7) 0 0 <1 <1 18 (7)
9O.......................................................... 458 (185) 0 0 1,180 (478) 0 123 (50) 1 (<1) 1,762 (713)
9P.......................................................... 0 0 48 (19) 0 0 13 (5) <1 61 (25)
9Q.......................................................... 0 0 <1 7 (3) 0 7 (3) <1 14 (6)
9R.......................................................... 0 0 36 (15) 22 (9) 0 13 (5) 8 (3) 80 (32)
9S.......................................................... 0 0 34 (14) 63 (25) 0 35 (14) 2 (1) 135 (55)
9T.......................................................... 0 0 10 (4) 0 0 25 (10) <1 36 (15)
9U.......................................................... 0 0 18 (7) 4 (2) 0 1 (<1) <1 23 (9)
9V.......................................................... 0 0 0 0 0 30 (12) 1 (<1) 31 (13)
9W.......................................................... 0 0 9 (4) 103 (42) 0 <1 <1 112 (45)
9X.......................................................... 0 0 0 10 (4) 0 20 (8) <1 30 (12)
9Y.......................................................... 0 0 0 18 (7) 0 11 (4) 4 (2) 32 (13)
9Z.......................................................... 0 0 0 28 (11) 0 <1 3 (1) 31 (13)
9AA......................................................... 0 0 22 (9) 24 (10) 0 37 (15) <1 84 (34)
9BB......................................................... 0 0 0 19 (8) 0 23 (9) 1 (<1) 43 (17)
9CC......................................................... 0 0 0 9 (4) 0 15 (6) <1 24 (10)
9DD......................................................... 0 0 19 (8) 0 0 <1 <1 19 (8)
9EE......................................................... 0 0 12 (5) <1 0 1 (<1) 5 (2) 18 (7)
9FF......................................................... 0 0 0 39 (16) 0 <1 <1 39 (16)
9GG......................................................... 0 0 81 (33) 240 (97) 0 28 (11) 1 (<1) 351 (142)
9HH......................................................... 0 0 22 (9) 0 0 <1 <1 22 (9)
9II......................................................... 0 0 18 (7) 5 (2) 0 10 (4) 6 (2) 39 (16)
9JJ......................................................... <1 0 0 105 (42) 0 <1 2 (1) 108 (44)
-------------------------------------------------------------------------------------------------------------------------------
Total................................................... 575,589 14,457 (5,851) 437,888 18,251 (7,386) 434 (176) 119,419 7,974 (3,227) 1,174,011
(232,933) (177,207) (48,327) (475,105)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.
[[Page 71476]]
We present brief descriptions of all units, and reasons why they
meet the definition of critical habitat for the Florida bonneted bat,
below.
Unit 1: Kissimmee Unit
Unit 1 encompasses 175,737 ac (71,118 ha) of lands in Polk,
Osceola, Highlands, and Okeechobee Counties, Florida. This unit
consists of two subunits generally located along the eastern bank of
Lake Kissimmee northeast to SR-192, north of SR-60; and along portions
of the Kissimmee River, south of SR-60. Unit 1 predominately consists
of State-owned conservation lands (135,779 ac (54,948 ha)) and private
lands (36,996 ac (14,972 ha)). The largest conservation landholdings
within this unit include Kissimmee Prairie Preserve State Park, Three
Lakes WMA, Herky Huffman/Bull Creek WMA, Triple N Ranch WMA, and South
Florida Water Management District lands along the Kissimmee River.
Other smaller conservation lands also occur within this unit (for more
information, see the Conservation Lands document in Supporting
Documents).
Unit 1 contains all of the essential physical or biological
features for the Florida bonneted bat and is considered occupied at the
time of listing based on documented presence of Florida bonneted bats
within the unit. The Kissimmee Unit represents the northern extent of
the species' range and provides resiliency against the expected impacts
from habitat loss due to climate change as it includes areas considered
less vulnerable to these effects. Habitat in this unit provides
ecological diversity (i.e., high pine and mesic flatwoods) and includes
areas identified as having HCV, specifically high-quality roosting
habitat (e.g., potential roost trees, red-cockaded woodpecker activity
in the area) and foraging habitat (e.g., open water, abundant prey). In
addition, the Florida bonneted bats in this area are genetically
differentiated from those occurring elsewhere in the range (Austin et
al. 2022, entire), and thus contribute to the genetic diversity of the
overall population.
The physical or biological features essential to the conservation
of the Florida bonneted bat in Unit 1 may require special management
considerations or protection due to the following threats: Habitat loss
and fragmentation from changes in land use (e.g., land clearing for
residential/commercial development); lack of habitat management and/or
inadvertent impacts from these habitat management practices (e.g.,
prescribed fire, snag removal); and excessive pesticide use (see
Special Management Considerations or Protection, above).
Under section 4(a)(3)(B)(i) of the Act, we are exempting Avon Park
Air Force Range lands (99,523 ac (40,276 ha)) from the critical habitat
designation because the U.S. Air Force has an approved integrated
natural resources management plan (INRMP) that provides benefits to the
Florida bonneted bat and its habitat (see Exemptions, below, for more
detailed information).
Approximately 1.25 ac (0.5 ha) of Tribal lands occur within Unit 1
(Miccosukee Tribe of Florida). We are considering exclusion of these
lands from the final critical habitat designation under section 4(b)(2)
of the Act (see Consideration of Other Relevant Impacts, below).
Unit 2: Peace River Unit
Unit 2 encompasses 28,046 ac (11,350 ha) of lands in Hardee,
DeSoto, and Charlotte Counties, Florida. This unit consists of four
subunits located along portions of the Peace River and its tributaries
(e.g., Shell Creek, Charlie Creek), south of CR-64 with the majority
west of U.S.-17. Unit 2 predominately consists of privately owned lands
(19,047 ac (7,708 ha)) and State-owned conservation lands (6,389 ac
(2,586 ha)). The largest conservation landholdings within this unit
include the Peace River State Forest and the Deep Creek Preserve. Other
smaller conservation lands also occur within this unit (for more
information, see the Conservation Lands document in Supporting
Documents).
Unit 2 contains all of the essential physical or biological
features for the Florida bonneted bat and is considered occupied at the
time of listing based on documented presence of Florida bonneted bats
within the unit. The Peace River Unit encompasses a known movement
corridor (generally connecting proposed Units 1 and 3), allowing gene
flow between these populations, and includes areas identified as having
HCV, specifically high-quality foraging habitat along the Peace River
and adjacent forested lands that provide open water and abundant prey.
In addition, this unit adds ecological diversity (a natural river
corridor) to the overall proposed designation.
The physical or biological features essential to the conservation
of the Florida bonneted bat in Unit 2 may require special management
considerations or protection due to the following threats: Habitat
loss, fragmentation, or degradation from changes in land use (e.g.,
land clearing for residential/commercial development); lack of habitat
management and/or inadvertent impacts from land management practices
(e.g., prescribed fire, snag removal); excessive pesticide use; and
climate change (e.g., sea level rise/inundation, saltwater intrusion,
habitat alteration/degradation) (see Special Management Considerations
or Protection, above).
Unit 3: Babcock Unit
Unit 3 encompasses 133,560 ac (54,050 ha) of lands in Charlotte,
Lee, and Glades Counties, Florida. This unit consists of two subunits,
with the majority of Unit 3 located in Charlotte County, east of I-75;
other portions are in northwestern Lee and western Glades Counties.
This unit predominately consists of State-owned conservation lands
(108,509 ac (43,912 ha)) and private lands (23,929 ac (9,684 ha)). The
largest conservation landholdings within this unit are Babcock-Webb WMA
and Babcock Ranch Preserve; other smaller conservation lands also occur
within this unit (for more information, see the Conservation Lands
document in Supporting Documents).
Unit 3 contains all of the essential physical or biological
features for the Florida bonneted bat and is considered occupied at the
time of listing based on documented presence of Florida bonneted bats
within the unit. Habitat in the Babcock Unit provides ecological
diversity (i.e., hydric and mesic flatwoods) and includes areas
identified as having HCV, specifically superior roosting and foraging
habitat. Babcock-Webb WMA and surrounding areas support the largest
known population of Florida bonneted bats and the majority of all known
roost sites. In addition, the Florida bonneted bats in this westernmost
extent of the species' range are genetically differentiated from those
occurring elsewhere in the range (Austin et al. 2022, entire), thus
contributing to the genetic diversity of the overall population.
The physical or biological features essential to the conservation
of the Florida bonneted bat in Unit 3 may require special management
considerations or protection due to the following threats: Habitat
loss, fragmentation, or degradation from changes in land use (e.g.,
land clearing for residential/commercial development); lack of habitat
management and/or inadvertent impacts from land management practices
(e.g., prescribed fire, snag removal); excessive pesticide use; and
climate change (e.g., sea level rise/inundation, saltwater intrusion,
habitat alteration/
[[Page 71477]]
degradation) (see Special Management Considerations or Protection,
above).
Unit 4: Fisheating Creek Unit
Unit 4 encompasses 12,995 ac (5,259 ha) of lands in Glades and
Highlands Counties, Florida. The majority of Unit 4 is located in
Glades County, west of US-27; the remaining portion of the unit extends
north into southern Highlands County. This unit predominately consists
of State-owned conservation lands (7,689 ac (3,112 ha)) and private
lands (5,300 ac (2,145 ha)). Conservation landholdings within this unit
are Fisheating Creek WMA, Fisheating Creek/Lykes Brothers Conservation
Easement, and Platt Branch Wildlife and Environmental Area.
Unit 4 contains all of the essential physical or biological
features for the Florida bonneted bat and is considered occupied at the
time of listing based on documented presence of Florida bonneted bats
within the unit. High-quality foraging habitat along Fisheating Creek
and adjacent forested lands provide open water and abundant prey. This
unit serves as important foraging habitat connecting bats traveling
between proposed Unit 3 and areas to the north and east, and, along
with proposed Unit 2, this unit adds ecological diversity (natural
river corridors) to the overall proposed designation.
The physical or biological features essential to the conservation
of the Florida bonneted bat in Unit 4 may require special management
considerations or protection due to the following threats: Habitat
loss, fragmentation, or degradation from changes in land use (e.g.,
land clearing for residential/commercial development); lack of habitat
management and/or inadvertent impacts from land management practices
(e.g., prescribed fire, snag removal, hydrologic restoration);
excessive pesticide use; and climate change (e.g., sea level rise/
inundation, saltwater intrusion, habitat alteration/degradation) (see
Special Management Considerations or Protection, above).
Unit 5: Corkscrew Unit
Unit 5 encompasses 48,865 ac (19,775 ha) of lands in Lee and
Collier Counties, Florida. This unit straddles the Lee/Collier county
line, east of I-75, and predominately consists of State-owned
conservation lands (26,226 ac (10,613 ha)) and private lands (17,319 ac
(7,009 ha)). The largest conservation landholdings within this unit are
Corkscrew Regional Ecosystem Watershed and the National Audubon
Society's Corkscrew Swamp Sanctuary; other smaller conservation lands
also occur within this unit (for more information, see the Conservation
Lands document in Supporting Documents).
Unit 5 contains all of the essential physical or biological
features for the Florida bonneted bat and is considered occupied at the
time of listing based on documented presence of Florida bonneted bats
within the unit. Habitat within the Corkscrew Unit provides ecological
diversity (i.e., cypress and hydric flatwoods) and includes areas
identified as having HCV. Corkscrew Swamp Sanctuary was established to
protect one of the largest remaining stands of cypress in North
America, and this area likely includes high-quality roosting habitat.
The area also provides connectivity between Babcock-Webb WMA and areas
south. The natural habitat within Unit 5 serves as important habitat in
an area that is otherwise under high development pressure.
The physical or biological features essential to the conservation
of the Florida bonneted bat in Unit 5 may require special management
considerations or protection due to the following: Habitat loss,
fragmentation, or degradation from changes in land use (e.g., land
clearing for residential/commercial development); lack of habitat
management and/or inadvertent impacts from land management practices
(e.g., prescribed fire, snag removal); and climate change (e.g., sea
level rise/inundation, saltwater intrusion, habitat alteration/
degradation) (see Special Management Considerations or Protection,
above).
Unit 6: Big Cypress Unit
Unit 6 encompasses 728,544 ac (294,831 ha) of lands in Collier,
Hendry, and Monroe Counties, Florida. The majority of Unit 6 is located
in Collier County, south of I-75; the remainder occurs in southern
Hendry County and mainland portions of Monroe County. This unit
predominately consists of Federal (533,179 ac (215,770 ha)) and State-
owned (152,494 ac (61,712 ha)) conservation lands. The largest
landholdings within this unit are Big Cypress National Preserve,
Florida Panther National Wildlife Refuge (NWR), Fakahatchee Strand
Preserve State Park, and Picayune Strand State Forest; other smaller
conservation lands also occur within this unit (for more information,
see the Conservation Lands document in Supporting Documents).
Unit 6 contains all of the essential physical or biological
features for the Florida bonneted bat and is considered occupied at the
time of listing based on documented presence of Florida bonneted bats
within the unit. Habitat in the Big Cypress Unit, along with Unit 5,
provides ecological diversity (i.e., cypress and hydric flatwoods) and
includes areas identified as having HCV. Roosting habitat within this
unit is of particularly high quality. Despite challenges in accessing
this site to conduct surveys, the Florida bonneted bat has been
documented throughout this unit, including the discovery of 25 natural
roosts (the most of any unit). The Florida bonneted bats in this area
are genetically differentiated from those occurring elsewhere in the
range (Austin et al. 2022, entire) and thus contribute to the genetic
diversity of the overall population.
The physical or biological features essential to the conservation
of the Florida bonneted bat in Unit 6 may require special management
considerations or protection due to the following threats: Habitat
loss, fragmentation, or degradation from changes in land use (e.g.,
land clearing for residential, commercial, transportation, or energy-
related development); lack of habitat management and/or inadvertent
impacts from land management practices (e.g., prescribed fire, snag
removal, habitat and hydrologic restoration); excessive pesticide use;
and climate change (e.g., sea level rise/inundation, saltwater
intrusion, habitat alteration/degradation, coastal squeeze) (see
Special Management Considerations or Protection, above).
Approximately 14,455 ac (5,850 ha) of Tribal lands occur within
Unit 6 (Seminole Tribe of Florida). We are considering exclusion of
these lands from the final critical habitat designation under section
4(b)(2) of the Act (see Consideration of Other Relevant Impacts,
below).
Unit 7: Everglades Tree Islands Unit
Unit 7 encompasses 16,604 ac (6,719 ha) of lands in Miami-Dade
County, Florida, south of Tamiami Trail and west of Krome Avenue.
Nearly this entire unit is Federal land within Everglades National Park
(ENP; 16,538 ac (6,693 ha)).
Unit 7 contains all of the essential physical or biological
features for the Florida bonneted bat and is considered occupied at the
time of listing based on documented presence of Florida bonneted bats
within the unit. The Everglades Tree Islands Unit provides connectivity
between Unit 6 and the southeast coast (proposed Units 8 and 9),
allowing gene flow between these populations. It also includes areas
identified as having HCV. Despite
[[Page 71478]]
limited effort and challenges accessing the area to conduct surveys,
the Florida bonneted bat has been documented throughout this unit.
The physical or biological features essential to the conservation
of the Florida bonneted bat in Unit 7 may require special management
considerations or protection due to the following threats: Lack of
habitat management and/or inadvertent impacts from land management
practices (e.g., prescribed fire, snag removal, habitat and hydrologic
restoration) and climate change (e.g., sea level rise/inundation,
saltwater intrusion, habitat alteration/degradation) (see Special
Management Considerations or Protection, above).
Unit 8: Long Pine Key Unit
Unit 8 encompasses 25,337 ac (10,254 ha) of lands in Miami-Dade
County, Florida, along ENP's Main Park Road (SR-9336) between Mahogany
Hammock and SW 237th Avenue. Nearly this entire unit is Federal land
within ENP (25,142 ac (10,175 ha)).
Unit 8 contains all of the essential physical or biological
features for the Florida bonneted bat and is considered occupied at the
time of listing based on documented presence of Florida bonneted bats
within the unit. Habitat in the unit provides ecological diversity
(i.e., pine rocklands) and includes areas identified as having HCV,
specifically high-quality roosting and foraging habitat within Long
Pine Key, the largest remaining contiguous occurrence of pine rockland
habitat. This unit includes the southernmost extent of the species'
range and provides additional connectivity between proposed Units 6 and
9.
The physical or biological features essential to the conservation
of the Florida bonneted bat in Unit 8 may require special management
considerations or protection due to the following: Lack of habitat
management and/or inadvertent impacts from land management practices
(e.g., prescribed fire, snag removal) and climate change (e.g., sea
level rise/inundation, saltwater intrusion, habitat alteration/
degradation) (see Special Management Considerations or Protection,
above).
Unit 9: Miami Rocklands Unit
Unit 9 encompasses 4,324 ac (1,750 ha) of lands in Miami-Dade
County, Florida. This unit consists of 36 subunits located between
Tamiami Trail to the north and SR-9336 to the south, and is surrounded
by a dense urban matrix typical of the Miami metropolitan area. This
unit predominately consists of conservation lands owned by county
(2,403 ac (972 ha)), State (796 ac (322 ha)), and Federal (599 ac (242
ha)) agencies. The largest landholdings within this unit are Zoo Miami,
Larry and Penny Thompson Park, the U.S. Coast Guard Communication
Station, Navy Wells, and the Deering Estate. Many county-owned
preserves and parks, as well as other smaller conservation lands, also
occur within this unit (for more information, see the Conservation
Lands document in Supporting Documents).
Unit 9 contains all of the essential physical or biological
features for the Florida bonneted bat and is considered occupied at the
time of listing based on documented presence of Florida bonneted bats
within the unit. The Miami Rocklands Unit represents the easternmost
extent of the species' range. Habitat in this unit provides ecological
diversity (i.e., pine rocklands) and includes areas identified as
having HCV. This unit includes remaining fragments of pine rockland and
rockland hammock habitat within an urbanized landscape. These fragments
of natural habitat are used extensively by Florida bonneted bats and
provide connectivity within the unit. Florida bonneted bats inhabiting
the area are the most genetically differentiated from those occurring
elsewhere in the range (Austin et al. 2022, entire), and thus
contribute to the genetic diversity of the overall population.
The physical or biological features essential to the conservation
of the Florida bonneted bat in Unit 9 may require special management
considerations or protection due to the following: Habitat loss,
fragmentation, or degradation from changes in land use (e.g., land
clearing for residential, commercial, transportation, or energy-related
development); lack of habitat management and/or inadvertent impacts
from land management practices (e.g., prescribed burns, snag removal,
habitat restoration); excessive pesticide use; and climate change
(e.g., sea level rise/inundation, saltwater intrusion, habitat
alteration/degradation, coastal squeeze) (see Special Management
Considerations or Protection, above).
Under section 4(a)(3)(B)(i) of the Act, we are exempting Homestead
Air Reserve Base (Base) lands (280 ac (113 ha)) from critical habitat
designation because the U.S. Air Force has an approved INRMP that
provides benefits to the Florida bonneted bat and its habitat (see
Exemptions, below, for more detailed information).
Approximately 104 ac (42 ha) of private lands under a habitat
conservation plan (HCP) occur within Unit 9. We are considering
exclusion of these lands from the final critical habitat designation
under section 4(b)(2) of the Act (see Consideration of Other Relevant
Impacts, below).
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 August 27, 2019 (84 FR 44976). Destruction or
adverse modification means a direct or indirect alteration that
appreciably diminishes the value of critical habitat as a whole for the
conservation of a listed species.
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.
[[Page 71479]]
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, if
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 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. Factors considered in making these
determinations may include the extent of the proposed action, including
its temporal and spatial scale relative to the critical habitat unit or
subunit within which it occurs; the specific purpose for which that
unit or subunit was identified and designated as critical habitat; and
the impact of the proposed action on the unit or subunit's likelihood
of serving its intended conservation function or purpose.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe, in any proposed or final regulation that designates critical
habitat, activities involving a Federal action that may violate section
7(a)(2) of the Act by destroying or adversely modifying such habitat,
or that may be affected by such designation.
Activities that the Service may, during a consultation under
section 7(a)(2) of the Act, consider likely to destroy or adversely
modify critical habitat include, but are not limited to:
(1) Actions that would significantly alter roosting or foraging
habitat or habitat connectivity such that they appreciably diminish the
value of critical habitat as a whole. Such activities may include, but
are not limited to: Land clearing for residential, commercial,
transportation, energy-related or other development; and water
diversion, drainage, or wetland loss or conversion. These activities
could destroy Florida bonneted bat roosting and foraging sites
(necessary for food, shelter, protection from predation, and
reproduction); reduce habitat conditions below what is necessary for
survival and growth; and/or eliminate or reduce the habitat necessary
for successful reproduction, dispersal, and population expansion (see
Physical or Biological Features Essential to the Conservation of the
Species, above).
(2) Actions that would significantly alter vegetation structure or
composition such that they appreciably diminish the value of critical
habitat as a whole. Such activities could include, but are not limited
to: Habitat management or restoration (e.g., prescribed burning and
other forest management activities, snag removal, or hydrologic
restoration) conducted in a manner that does not minimize disturbance
to the physical and biological features. These activities could affect
habitat that provides for the Florida bonneted bat's roosting and
rearing, foraging and prey, refuge from short-term changes to habitat,
and/or protection from predation (see Physical or Biological Features
Essential to the Conservation of the Species, above).
(3) Actions that would significantly reduce suitability of habitat
or impact prey base (e.g., availability, abundance, density, diversity)
such that they appreciably diminish the value of critical habitat as a
whole. These actions include, but are not limited to: Hydrologic
alteration or excessive pesticide applications that impact prey or
alter foraging behavior or movement. These activities could
significantly modify habitat that currently provides adequate prey and
space for foraging (see Physical or Biological Features Essential to
the Conservation of the Species, above).
Activities that the Service may, during a consultation under
section 7(a)(2) of the Act, consider likely to adversely affect
critical habitat but not likely to destroy or adversely modify critical
habitat include actions that significantly affect the unit or subunit's
ability to fulfill its primary functions (e.g., connectivity, foraging
or roosting habitat, genetic representation), but do not appreciably
diminish the value of critical habitat as a whole. Such activities may
include a landscape-scale hydrologic restoration project that would
convert large amounts of roosting habitat to foraging habitat within a
unit; development that would eliminate a small amount of high-value
foraging area or affect a known corridor; or habitat or invasive
species management programs that are overall beneficial to Florida
bonneted bat habitat but may result in inadvertent, but significant,
impacts to roosting habitat.
As noted above, some actions that are beneficial to Florida
bonneted bat habitat, including actions necessary to maintain habitat
quality and suitability, may result in inadvertent negative effects.
When conducted with guidance from the Service or using established best
management practices (BMPs) that prevent or minimize impacts, these
actions are beneficial and are encouraged as a part of standard land
management practices. Avoidance and minimization measures can also
reduce the impacts of habitat loss and other
[[Page 71480]]
impacts from development projects, habitat alteration, and habitat
conversion. General guidance has already been developed and is in use
(see Florida Bonneted Bat Consultation Guidelines, Appendices D and E
and Florida Bonneted Bat Avoidance and Minimization Measures in
Supporting Documents); additional guidance is under development to
address habitat management practices on conservation lands.
Some activities that the Service may consider to be activities that
may affect, but are unlikely to adversely affect, critical habitat
include actions that are wholly beneficial (i.e., those that maintain,
improve, or restore the functionality of critical habitat for the
Florida bonneted bat without causing adverse effects to the essential
physical or biological features), discountable (i.e., unlikely to
occur), or insignificant. In such cases, the Act's section 7
consultation requirements can be satisfied through the informal
concurrence process.
Whether an action will have insignificant effects must be
considered within the context of the unit or subunit in which the
action occurs. A localized reduction in roosting or foraging habitat
within a stand may have such a small impact on physical and biological
features within the stand that a ``not likely to adversely affect''
determination is appropriate. Similarly, effects to roosting habitat
may be negligible where a hazard tree removal project occurs in a stand
with many suitable roosting trees.
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 Department of Defense, 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 Florida bonneted bat to
determine if they meet the criteria for exemption from critical habitat
under section 4(a)(3) of the Act. The following areas are Department of
Defense (DoD) lands with completed, Service-approved INRMPs within the
proposed critical habitat designation.
Approved INRMPs
For discussion of the approved INRMP for Avon Park Air Force Range
(Unit 1: Kissimmee Unit; 99,523 ac (40,276 ha)), see the Exemptions
section in the proposed critical habitat rule (85 FR 35510, June 10,
2020).
Homestead Air Reserve Base (Unit 9: Miami Rocklands Unit--Subunits
KK, LL), 280 ac (113 ha)
The Homestead Air Reserve Base (Base) has a current and completed
INRMP, signed by the Service and the FWC in 2017 and 2018,
respectively. The INRMP (U.S. Air Force Reserve Command (Air Force)
2016) provides conservation measures for the species and management of
important upland and wetland habitats on the base.
The Base's INRMP provides benefits to Florida bonneted bat habitat
as the primary goals of the plan include, ``conservation and
enhancement of the land and water resources of the Base and improving
and maintaining the quality of native vegetation communities and
threatened and endangered species' habitats, while supporting the
military mission'' (Air Force 2016, p. 75). Some objectives identified
under this goal that should benefit the Florida bonneted bat include:
(1) Protecting, enhancing, and maintaining natural communities to
support native fish and wildlife species; (2) conserving and protecting
the habitats for federally and State-listed species; (3) reducing and
controlling populations of invasive and exotic plant species; and (4)
instituting control for nuisance and exotic wildlife.
More specifically, protecting and maintaining wetland functions,
restoring pine rockland, controlling invasive species, managing water
quality, and maintaining and enhancing natural habitat values and
ecosystem functions are expected to benefit the species and its
habitat. The Base's INRMP also includes specific projects to benefit
the species including incorporation of Florida bonneted bat management
strategies into conservation programs on the Base, working with the
Service to identify and implement management strategies for foraging
and roosting habitat, and conducting a qualitative bat survey (Air
Force 2016, pp. A-3, A-4). The study is expected to provide information
on the bat species present and their habitat use on the Base. Data from
the study will be used to supplement and update existing natural
resource management plans on the Base. Other components of the Base's
INRMP, such as the Integrated Pest Management Plan, the Bird/Wildlife
Aircraft Strike Hazard Plan, the threatened and endangered species
training course, and implementation of the pine rockland restoration
and management plan, have the potential to reduce pesticide use and
exposure to bats, avoid aircraft strikes to bats, raise awareness about
bats using the base, and enhance habitat quality for bats and other
species (Air Force 2016, appendix A).
In addition, the Base's INRMP includes a management plan for the
Florida bonneted bat that addresses: Conservation of wetlands to
promote foraging opportunities; promotion of insect diversity and
availability through the appropriate application of insecticides,
mowing, and other maintenance practices; and protection of roosting
habitat as identified through monitoring (Air Force 2016, appendix G).
Per the management plan, guidelines outlined in the Base's INRMP, Pest
Management Plan, Landscape Maintenance Plan, and the Protected Plant
Management Plan will be closely monitored and adapted as life-history
data for the Florida bonneted bat become available. The INRMP also
includes proposed monitoring
[[Page 71481]]
consisting of acoustic surveys and more intensive surveys for roost
sites; the Base will seek funding and partnership opportunities to
accomplish roost site monitoring and will adapt the management plan to
incorporate more specific protection and avoidance measures for the bat
at identified roost sites on the installation (Air Force 2016, appendix
G). When compatible with mission requirements, the Base will also
promote the use of environmentally friendly lighting practices to
minimize impacts to the bat (Air Force 2016, appendix G). The full
suite of protective measures incorporated in the Base's INRMP is
expected to benefit the species and its habitat.
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 Avon Park Air Force Range's and the Base's INRMPs and
that conservation efforts identified in the INRMPs will provide a
benefit to the Florida bonneted bat. Therefore, lands within these
installations are exempt from critical habitat designation under
section 4(a)(3) of the Act. Accordingly, we are not including
approximately 99,803 ac (40,389 ha) of habitat in this proposed
critical habitat designation because of these exemptions.
Consideration of Impacts Under Section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that the Secretary shall
designate and make revisions to critical habitat on the basis of the
best available scientific data after taking into consideration the
economic impact, national security impact, and any other relevant
impact of specifying any particular area as critical habitat. The
Secretary may exclude an area from critical habitat if we determine
that the benefits of such exclusion outweigh the benefits of specifying
such area as part of the critical habitat, unless we determine, based
on the best scientific data available, that the failure to designate
such area as critical habitat will result in the extinction of the
species. In making the determination to exclude a particular area, the
statute on its face, as well as the legislative history, are clear that
the Secretary has broad discretion regarding which factor(s) to use and
how much weight to give to any factor.
Under section 4(b)(2) of the Act, we may exclude an area from
designated critical habitat based on economic impacts, impacts on
national security, or any other relevant impacts. In considering
whether to exclude a particular area from the designation, we identify
the benefits of including the area in the designation, identify the
benefits of excluding the area from the designation, and evaluate
whether the benefits of exclusion outweigh the benefits of inclusion.
If the analysis indicates that the benefits of exclusion outweigh the
benefits of inclusion, the Secretary may exercise discretion to exclude
the area only if such exclusion would not result in the extinction of
the species. We describe below our process for considering each
category of impacts and our analyses of the relevant impacts.
Exclusion Requests Received During the Previous Public Comment Period
During the public comment period for the June 10, 2020, proposed
critical habitat designation (85 FR 35510), we received nine requests
for exclusion from critical habitat designation. Of these, two requests
do not overlap with this revised proposed designation, while the
remaining seven requests overlap to some degree (see table 2, below).
Additionally, requests for exclusion of federal lands are not included
in table 2, given the high standard set in our 2016 policy regarding
exclusions of Federal lands under 4(b)(2) of the Act (2016 Policy). As
part of our final rule, we may evaluate the areas in Table 2 for
possible exclusion from the final critical habitat designation. All
requests received as public comments are available for review at
<a href="https://www.regulations.gov">https://www.regulations.gov</a> under Docket No. FWS-R4-ES-2019-0106.
Table 2--Exclusion Requests Received During the 2020 Public Comment Period on the Proposed Critical Habitat
Designation for the Florida Bonneted Bat and Corresponding Overlap With Revised Proposed Critical Habitat Units
in This Rule
----------------------------------------------------------------------------------------------------------------
Overlap with revised proposed
Requesting party (Public Area requested for Basis for critical habitat
comment No. on https:// exclusion exclusion per --------------------------------------
www.regulations.gov) requesting party Unit/subunit Acres
----------------------------------------------------------------------------------------------------------------
Aliese Priddy, JB Ranch I, LLC Property owned by JB Economic, No No overlap......... N/A.
(FWS-R4-ES-2019-0106-0464 and Ranch I, LLC, and ecological
attachment). Sunniland Family benefit.
Limited Partnership.
Miami-Dade Limestone Products Lands overlapping the No ecological No overlap......... N/A.
Association (FWS-R4-ES-2019- Florida legislature- benefit.
0106-0386 and attachment). designated Lake Belt
mining area.
Florida Power & Light (FPL) All FPL electric Conservation All................ Insufficient
(FWS-R4-ES-2019-0106-0449 and utility sub- plans or information to
attachment). stations\1\ and programs, determine or
rights-of-way Economic. estimate.
containing
aboveground linear
facilities.
Miccosukee Tribe of Florida Tribal reservation Tribal lands, 1.................. 1.25.
(Comment submitted directly lands and fee lands. Conservation
to the Service). plans or
programs.
U.S. Army Corps of Engineers Lands enrolled in the Economic......... 2A................. 387.
(Comment submitted directly Wetland Reserve
to the Service). Easement Partnership
Program (formerly
called Wetland
Reserve Program).
Lands within the Economic......... 6.................. 64,490.
Picayune Strand
Restoration Project.
Seminole Tribe of Florida (FWS- Tribal reservation Tribal lands, 6.................. 14,455.
R4-ES-2019-0106-0380 and lands and fee lands. Conservation
attachment). plans or
programs.
Collier Enterprises Lands within the Conservation 5.................. Included \2\:
Management, Inc. (FWS-R4-ES- boundary of the draft plans or 2,013.
2019-0106-0461 and East Collier Multiple programs. Eligible \3\:
attachment). Species Habitat 163.
Conservation Plan.
[[Page 71482]]
6.................. Included \2\:
1,561.
Eligible \3\:
35.
Collier Mosquito Control Lands within the Economic......... 5.................. Existing MCD:
District (MCD) (FWS-R4-ES- existing and proposed 317.
2019-0106-0385 and Collier MCD Proposed MCD:
attachment). boundaries. 3,118.
6.................. Existing MCD:
166.
Proposed MCD:
78,568.
----------------------------------------------------------------------------------------------------------------
\1\ As developed areas, electric utility substations were excluded by text in the June 10, 2020, proposed
critical habitat rule (85 FR 35510), and remain excluded by text in this revised proposed rule.
\2\ ``Included'' lands are areas covered by draft HCP; certain impacts/development actions are allowed.
\3\ ``Eligible'' lands are not included in draft HCP but are eligible to join without amending the HCP.
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. For information on how probable economic impacts
of a designation were assessed, please see the Exclusions Based on
Economic Impacts section in the proposed critical habitat rule (85 FR
35510, June 10, 2020). For this particular revised proposed
designation, we revised the incremental effects memorandum (IEM) to
consider the probable incremental economic impacts that may result from
this designation of critical habitat. The information contained in our
revised IEM was then used to develop a screening analysis of the
probable effects of the designation of critical habitat for the Florida
bonneted bat. This screening analysis combined with the information
contained in our IEM constitute what we consider to be our draft
economic analysis (DEA) of the revised proposed critical habitat
designation for the Florida bonneted bat; 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 this revised proposed
designation of critical habitat for the Florida bonneted bat, first we
identified, in the revised IEM dated June 22, 2021, probable
incremental economic impacts associated with the following categories
of activities: (1) Commercial or residential development; (2)
transportation; (3) utilities; (4) energy (including solar, wind, and
oil and gas); (5) water management (including water supply, flood
control, and water quality); (6) recreation; (7) land management
(including prescribed burning and invasive species control); and (8)
habitat and hydrologic restoration. 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. Because the Florida bonneted bat is already listed
under the Act, in areas where the species is present, Federal agencies
are currently 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 revised 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
attributable to the critical habitat designation (i.e., difference
between the jeopardy and adverse modification standards) for the
Florida bonneted bat's 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 to
constitute jeopardy to the Florida bonneted bat 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
revised proposed designation of critical habitat.
The revised proposed critical habitat designation for the Florida
bonneted bat consists of nine units, all occupied by the species,
totaling 1,174,011 ac (475,105 ha) and including lands under Federal,
Tribal, State, county, local, and private jurisdictions (see table 1,
above). Because all areas are occupied, the economic impacts of
implementing the rule through section 7 of the Act will most likely be
limited to additional administrative effort to consider adverse
modification. This finding is based on the following factors:
<bullet> Any activities with a Federal nexus occurring within
occupied habitat will be subject to section 7 consultation requirements
regardless of critical habitat designation, due to the presence of the
listed species; and
[[Page 71483]]
<bullet> In most cases, project modifications requested to avoid
adverse modification are likely to be the same as those needed to avoid
jeopardy in occupied habitat.
Our analysis considers the potential need to consult on
development, transportation, utilities, land management, habitat
restoration, and other activities authorized, undertaken, or funded by
Federal agencies within critical habitat. The total incremental section
7 costs associated with the designation of the proposed units are
estimated to be less than $70,800 per year, with the highest costs
expected in Unit 6 (IEc 2021, pp. 2, 25). While the revised proposed
critical habitat area is relatively large, incremental section 7 costs
are kept comparatively low due to the strong baseline protections that
already exist for this species due to its listed status, the existence
of a consultation area map that alerts managing agencies about the
location of the species and its habitat, and the presence of other
listed species in the area.
We are soliciting data and comments from the public on the DEA
discussed above, as well as on all aspects of this revised proposed
rule and our required determinations. During the development of a final
designation, we will consider the information presented in the DEA and
any additional information on economic impacts we receive during the
public comment period to determine whether any specific areas should be
excluded from the final critical habitat designation under authority of
section 4(b)(2) and our implementing regulations at 50 CFR 17.90. If we
receive credible information regarding the existence of a meaningful
economic or other relevant impact supporting a benefit of exclusion, we
will conduct an exclusion analysis for the relevant area or areas. We
may also exercise the discretion to evaluate any other particular areas
for possible exclusion. Furthermore, when we conduct an exclusion
analysis based on impacts identified by experts in, or sources with
firsthand knowledge about, impacts that are outside the scope of the
Service's expertise, we will give weight to those impacts consistent
with the expert or firsthand information unless we have rebutting
information. 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
For information on how probable impacts to national security were
assessed, please see the Impacts on National Security and Homeland
Security section in the proposed critical habitat rule (85 FR 35510,
June 10, 2020). We have evaluated whether any of the lands within this
revised 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
revised 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
credible information about additional areas for which designation may
result in incremental national-security or homeland-security impacts,
then we will also conduct a discretionary exclusion analysis to
determine whether to exclude those additional areas under the authority
of section 4(b)(2) of the Act and our implementing regulations at 50
CFR 17.90.
Department of Homeland Security
We have determined that some lands within Unit 9, Subunit O, of the
revised proposed critical habitat designation for the Florida bonneted
bat are owned, managed, or used by the U.S. Coast Guard (USCG), which
is part of the DHS.
The USCG property is separated into two main areas: the
Communications Station Miami and the Civil Engineering Unit (CEU). The
Communications Station houses transmitting and receiving antennas. The
CEU plans and executes projects at regional shore facilities, such as
construction and post-disaster assessments.
The USCG parcel contains approximately 100 ac (40 ha) of standing
pine rocklands. The remainder of the site, outside of the developed
areas, is made up of scraped pine rocklands that are mowed three to
four times per year for maintenance of a communications antenna field.
Although disturbed, this scraped area maintains sand substrate and many
native pine rockland species; the Florida bonneted bat has also been
documented on adjacent property. The USCG parcel has a 2017 Natural
Resources Management Plan (Gottfried 2017, entire) that includes
habitat management and restoration recommendations for their Pineland
Natural Area, a 72-ac (29-ha) conservation area within this property.
Recommended management includes prescribed fire, control of invasive
plants, and protection of lands from further development or
degradation. In addition, the standing pine rockland area is partially
managed through an active recovery grant to the Institute for Regional
Conservation. Under this grant, up to 39 ac (16 ha) of standing pine
rocklands will undergo invasive vegetation control.
Based on a review of the specific mission of the USCG facility in
conjunction with the measures and efforts set forth in the management
plan to preserve pine rockland habitat and protect sensitive and listed
species, we have determined that it is unlikely that the critical
habitat, if finalized as proposed in this document, would negatively
impact the facility or its operations. As a result, we do not
anticipate any impact on national security. Consequently, the Secretary
does not intend to exercise her discretion to exclude any of these
areas from the final designation based on impacts on national security.
We will, however, review this determination, in light of any new
information and public comments we receive prior to making a decision
in the final rule.
Department of Defense
We have determined that the U.S. Army Corps of Engineers, a branch
of the DoD, retains ownership over a 14-ac (6-ha)-parcel within Unit 9,
Subunit O, of the revised proposed critical habitat designation for the
Florida bonneted bat. This area is a combination of standing and
scraped pine rocklands but is not managed for preservation of natural
resources. The U.S. Army Corps of Engineers does not have any specific
management plan for the Florida bonneted bat or its habitat covering
these lands. Activities conducted on this site are unknown, but we do
not anticipate any impact on national security. Consequently, the
Secretary does not intend to exercise her discretion to exclude any of
these areas from the final designation based on impacts on national
security. We will, however, review this determination, in light of any
new information and public comments we receive, prior to making a
decision in the final rule.
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
[[Page 71484]]
impacts on national security discussed above. Other relevant impacts
may include, but are not limited to, impacts to Tribes, States, local
governments, public health and safety, community interests, the
environment (such as increased risk of wildfire), Federal lands, and
conservation plans, agreements, or partnerships. 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, public-health,
community-interest, environmental, or social 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 Florida bonneted bat, the benefits of critical
habitat include public awareness of the presence of the species and the
importance of habitat protection and, where a Federal nexus exists,
increased habitat protection for Florida bonneted bat 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, 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 failure to designate an area as critical
habitat will result in extinction, we will not exclude it from the
designation.
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 habitat. 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 or specific land
uses. In the case of SHAs, the permit would allow participants to take
listed species or modify habitat to return population levels and
habitat conditions to those agreed upon as 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 consider the following three factors:
(i) Whether the permittee is properly implementing the conservation
plan or agreement;
(ii) Whether the species for which critical habitat is being
designated is a covered species in the conservation plan or agreement;
and
(iii) Whether the conservation plan or agreement specifically
addresses the habitat of the species for which critical habitat is
being designated and meets the conservation needs of the species in the
planning area.
The revised proposed critical habitat designation includes areas
that are covered by the Coral Reef Commons HCP, a permitted plan
providing for the conservation of the Florida bonneted bat.
Coral Reef Commons HCP
The revised proposed designation includes the Coral Reef Commons
mixed-use community, which consists of 900 apartments, retail stores,
restaurants, and parking. In 2017, an HCP and associated permit under
section 10 of the Act was developed and issued for the Coral Reef
Commons development (Church Environmental 2017, entire). As part of the
HCP and permit, an approximately 52-ac (21-ha) on-site preserve was
established under a conservation encumbrance that will be managed in
perpetuity for pine rockland habitat and sensitive and listed species,
including the Florida bonneted bat. Also, an additional approximately
52-ac (21-ha) off-site mitigation area was set aside for Coral Reef
Commons. Both the on-site preserves and the off-site mitigation area
will be managed to maintain healthy pine rockland habitat through the
use of invasive, exotic plant management, mechanical treatment, and
prescribed fire. Since initiating the Coral Reef Commons HCP, pine
rockland restoration efforts have been conducted within all the
management units in the on-site preserve and the off-site mitigation
area. A second round of prescribed fire began in February 2021.
Currently, the on-site preserve meets or exceeds the success criteria
described in the HCP.
Maintenance of pine rockland habitat specifically relates to
conservation of ecological diversity described in physical or
biological feature 4, and
[[Page 71485]]
other biological objectives of the HCP (e.g., implementation of a burn
plan, minimizing pesticide use to the extent practicable) may provide
conservation benefits related to physical or biological features 1, 2,
and 3.
After considering the factors described above, we have identified
the 104 ac (42 ha) under the Coral Reef Commons HCP (in Unit 9, Subunit
O) as an area we have reason to consider excluding because of its
permitted plan. Specifically, our reasons for considering this area for
potential exclusion are not only that the Florida bonneted bat is a
covered species within the HCP; but also that the HCP specifically
addresses conservation of pine rockland habitat, generally addresses
four of the physical or biological features essential for the
conservation of the species, and may meet the conservation needs of the
species within the area covered by the HCP. We will more thoroughly
review the HCP, its implementation of the conservation measures for the
Florida bonneted bat and its habitat therein, and public comment on
this issue prior to finalizing critical habitat, and if appropriate,
exclude from critical habitat for the Florida bonneted bat those lands
associated with the Coral Reef Commons HCP that are in the preserve and
offsite mitigation area.
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 17.90(d)(1)(i) are
consistent with S.O. 3206. When we undertake a discretionary exclusion
analysis, 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. We then
weighed nonbiological impacts to Tribal lands and resources consistent
with the information provided by the Tribes.
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 that may require special management 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.
The revised proposed critical habitat designation includes the
following Tribal lands or resources:
Seminole Tribe of Florida: The revised proposed designation
includes an area (14,455 ac (5,850 ha)) within Unit 6 (Big Cypress)
that overlaps with Seminole Tribe of Florida Trust lands. The Seminole
Tribe Wildlife Conservation Plan, Fire Management Plan, and Forest
Management Plan cover these lands for the protection of listed and
endangered species, including the Florida bonneted bat. The Service
reviewed these plans and issued a biological opinion on December 19,
2014, which we amended on June 9, 2017 (see Supporting Documents). The
Wildlife Conservation Plan includes conservation measures in place that
support the Florida bonneted bat and its habitat (e.g., limit impacts
to potential roost trees during prescribed burns and home site/access
road construction, maintain bonneted bat habitat through prescribed
burning and construction of bat houses). The conservation measures
specifically address conservation of roosting and foraging habitat
(i.e., physical or biological features 1 through 4), and maintenance of
that habitat through active management; therefore, the measures appear
to meet the conservation needs of the Florida bonneted bat within the
area covered by the plan. As such, we are considering 14,455 ac (5,850
ha) of Seminole Tribe of Florida Trust lands within Unit 6 (Big
Cypress) for exclusion.
Miccosukee Tribe of Florida: The revised proposed designation
includes an area (1.25 ac (0.5 ha)) within Unit 1 (Kissimmee) that
overlaps with Miccosukee Tribe of Florida fee lands. At present, we do
not have any information on how this small parcel is managed, but we
are considering 1.25 ac (0.5 ha) of Miccosukee Tribe of Florida fee
lands within Unit 1 (Kissimmee) for exclusion.
Summary of Exclusions Considered Under 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 revised proposed critical habitat units
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.
Table 3, below, provides approximate areas of lands that meet the
definition of critical habitat but for which we are considering
possible exclusion under section 4(b)(2) of the Act from the final
critical habitat designation for the Florida bonneted bat. In addition,
we may consider previously requested exclusion requests received during
the public comment period on the June 10, 2020, proposed rule that
overlap with revised proposed critical habitat (see table 2, above).
[[Page 71486]]
Table 3--Areas Considered for Exclusion Within Revised Proposed Critical Habitat Units in Accordance With the
2016 Policy
----------------------------------------------------------------------------------------------------------------
Areas meeting
the definition Areas considered
Unit Specific area of critical for possible Rationale for proposed
habitat, in exclusion, in exclusion
acres (hectares) acres (hectares)
----------------------------------------------------------------------------------------------------------------
Unit 1: Kissimmee.............. Miccosukee Tribe 1.25 (0.5) 1.25 (0.5) Tribal fee lands.
of Florida.
Unit 6: Big Cypress............ Seminole Tribe of 14,455 (5,850) 14,455 (5,850) Tribal Trust lands;
Florida. under natural resource
management plans.
Unit 9: Miami Rocklands........ Coral Reef Commons 104 (42) 104 (42) Lands under HCP
specifically
addressing the
species.
----------------------------------------------------------------------------------------------------------------
In conclusion, for this revised proposed rule, we have reason to
consider excluding the areas identified above based on 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 this revised
proposed designation and will determine whether these or any other
specific areas should be excluded from the final critical habitat
designation under the authority of section 4(b)(2) of the Act and our
implementing regulations at 50 CFR 17.90.
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 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 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
[[Page 71487]]
(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 this revised
proposed critical habitat designation. The RFA does not require
evaluation of the potential impacts to entities not directly regulated.
Moreover, Federal agencies are not small entities. Therefore, because
no small entities would be directly regulated by this rulemaking, the
Service certifies that, if made final as proposed in this document, the
revised proposed critical habitat designation will not have a
significant economic impact on a substantial number of small entities.
In summary, we have considered whether this revised 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,
this revised proposed critical habitat designation would 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
revised proposed critical habitat designation would significantly
affect energy supplies, distribution, or use. As most of the area
included in this revised proposed critical habitat designation occurs
on conservation lands (approximately 89 percent), the likelihood of
energy development within critical habitat is low. 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 rule would significantly or
uniquely affect small governments because it will not produce a Federal
mandate of $100 million or greater in any year, that is, it is not a
``significant regulatory action'' under the Unfunded Mandates Reform
Act. The designation of critical habitat imposes no obligations on
State or local governments and, as such, a Small Government Agency Plan
is not required.
Takings--Executive Order 12630
In accordance with E.O. 12630 (Government Actions and Interference
with Constitutionally Protected Private Property Rights), we have
analyzed the potential takings implications of designating critical
habitat for Florida bonneted bat 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
revised proposed designation of critical habitat for Florida bonneted
bat, and it concludes that, if adopted, this designation of critical
habitat does not pose significant takings implications for lands within
or affected by the designation.
Federalism--Executive Order 13132
In accordance with E.O. 13132 (Federalism), this proposed rule does
not have significant Federalism effects. A federalism summary impact
statement is not required. In keeping with Department of the Interior
and Department of Commerce policy, we requested information from, and
coordinated development of this proposed critical habitat designation
with, appropriate State resource agencies. From a federalism
perspective, the designation of critical habitat directly affects only
the responsibilities of Federal agencies. The Act imposes no other
duties with respect to critical habitat, either for States and local
governments, or for anyone else. As a result, the proposed rule does
not have substantial direct effects either on the States, or on the
relationship between
[[Page 71488]]
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 revised 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 this revised
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 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. Some areas within the revised proposed
designation are included in lands managed by the Seminole Tribe of
Florida and Miccosukee Tribe of Indians of Florida (see Units 1 and 6
descriptions; see also Consideration of Other Relevant Impacts, above),
constituting a total of approximately 14,457 ac (5,851 ha) of Tribal
land being proposed as critical habitat. We will continue to work with
Tribal entities during the development of a final rule designating
critical habitat for the Florida bonneted bat.
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 Florida 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 Florida 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. In Sec. 17.11, amend the table in paragraph (h) by revising the
entry for ``Bat, Florida bonneted'' under MAMMALS to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
----------------------------------------------------------------------------------------------------------------
Listing citations and
Common name Scientific name Where listed Status applicable rules
----------------------------------------------------------------------------------------------------------------
Mammals
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Bat, Florida bonneted.......... Eumops floridanus. Wherever found.... E 78 FR 61004, 10/2/
2013;
50 CFR 17.95(a).\CH\
[[Page 71489]]
* * * * * * *
----------------------------------------------------------------------------------------------------------------
0
3. In Sec. 17.95, amend paragraph (a) by adding an entry for ``Florida
Bonneted Bat (Eumops floridanus)'' before the entry for ``Indiana Bat
(Myotis sodalis)'' to read as follows:
Sec. 17.95 Critical habitat--fish and wildlife.
(a) Mammals.
Florida Bonneted Bat (Eumops floridanus)
(1) Critical habitat units are depicted for Charlotte, Collier,
DeSoto, Glades, Hardee, Hendry, Highlands, Lee, Miami-Dade, Monroe,
Okeechobee, Osceola, and Polk Counties, Florida, on the maps in this
entry.
(2) Within these areas, the physical or biological features
essential to the conservation of Florida bonneted bat consist of the
following components:
(i) Habitats that provide for roosting and rearing of offspring.
Such habitat provides structural features for rest, digestion of food,
social interaction, mating, rearing of young, protection from sunlight
and adverse weather conditions, and cover to reduce predation risks for
adults and young, and is generally characterized by:
(A) Live or dead trees and tree snags, especially longleaf pine,
slash pine, bald cypress, and royal palm, that are on average 57 feet
(ft) (17 meters (m)) in height and with an average 15-inch (38-
centimeter) diameter at breast height and that are emergent from the
surrounding canopy (by an average 16 ft (5 m)); and
(B) Sufficient unobstructed space, with cavities averaging 35 ft
(10.7 m) above the ground and roost trees averaging 14 ft (4 m) from
the nearest tree, for Florida bonneted bats to emerge from roost trees;
this may include open or semi-open canopy and canopy gaps.
(ii) Habitats that provide adequate prey and space for foraging,
which may vary widely across the Florida bonneted bat's range, in
accordance with ecological conditions, seasons, and disturbance regimes
that influence vegetation structure and prey species' distributions.
Foraging habitat may be separate and relatively far from roosting
habitat. Essential foraging habitat consists of open areas in or near
areas of high insect production or congregation, commonly including,
but not limited to:
(A) Freshwater edges, and freshwater herbaceous wetlands (permanent
or seasonal);
(B) Prairies;
(C) Wetland and upland shrub; and/or
(D) Wetland and upland forests.
(iii) A dynamic disturbance regime (e.g., fire, hurricanes, forest
management) that maintains and regenerates forested habitat, including
plant communities, open habitat structure, and temporary gaps, which is
conducive to promoting a continual supply of roosting sites, prey
items, and suitable foraging conditions.
(iv) A sufficient quantity and diversity of habitats to enable the
species to be resilient to short-term impacts associated with
disturbance over time (e.g., drought, forest disease). The ecological
communities the Florida bonneted bat inhabits differ in hydrology, fire
frequency/intensity, climate, prey species, roosting sites, and
threats, and include, but are not limited to:
(A) Pine rocklands;
(B) Cypress communities (cypress swamps, strand swamps, domes,
sloughs, ponds);
(C) Hydric pine flatwoods (wet flatwoods);
(D) Mesic pine flatwoods; and
(E) High pine.
(v) Habitats that provide structural connectivity where needed to
allow for dispersal, gene flow, and natural and adaptive movements,
including those that may be necessitated by climate change. These
connections may include linear corridors such as vegetated, riverine,
or open-water habitat with opportunities for roosting and/or foraging,
or patches (i.e., stepping stones) such as tree islands or other
isolated natural areas within a matrix of otherwise low-quality
habitat.
(vi) A subtropical climate that provides tolerable conditions for
the species such that normal behavior, successful reproduction, and
rearing of offspring are possible.
(3) Critical habitat does not include humanmade 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
the effective date of the final rule.
(4) Data layers defining map units were created using ESRI ArcGIS
mapping software along with various spatial data layers. ArcGIS was
also used to calculate the size of habitat areas. The projection used
in mapping and calculating distances and locations within the units was
World Geodetic System 1984, Universal Transverse Mercator Zone 17
North. The maps in this entry, as modified by any accompanying
regulatory text, establish the boundaries of the critical habitat
designation. The coordinates or plot points or both on which each map
is based are available to the public at <a href="https://www.regulations.gov">https://www.regulations.gov</a> at
Docket No. FWS-R4-ES-2019-0106, the Florida Ecological Services Field
Office website at <a href="https://www.fws.gov/office/florida-ecological-services/library">https://www.fws.gov/office/florida-ecological-services/library</a>, and at the field office responsible for this
designation. You may obtain field office location information by
contacting one of the Service regional offices, the addresses of which
are listed at 50 CFR 2.2.
(5) Index map follows:
Figure 1 to Florida Bonneted Bat (Eumops floridanus) paragraph (5)
BILLING CODE 4333-15-P
[[Page 71490]]
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(6) Unit 1: Kissimmee Unit; Polk, Osceola, Highlands, and
Okeechobee Counties, Florida.
(i) Unit 1 encompasses 175,737 acres (ac) (71,118 hectares (ha)) of
lands in Polk, Osceola, Highlands, and Okeechobee Counties, Florida.
This unit consists of two subunits generally located along the eastern
bank of Lake Kissimmee northeast to SR-192, north of SR-60; and along
portions of the Kissimmee River, south of SR-60.
(ii) Map of Unit 1 follows:
Figure 2 to Florida Bonneted Bat (Eumops floridanus) paragraph (6)(ii)
[[Page 71491]]
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(7) Unit 2: Peace River Unit; Hardee, DeSoto, and Charlotte
Counties, Florida.
(i) Unit 2 encompasses 28,046 ac (11,350 ha) of lands in Hardee,
DeSoto, and Charlotte Counties, Florida. This unit consists of four
subunits located along portions of the Peace River and its tributaries
(e.g., Shell Creek, Charlie Creek), south of CR-64 with the majority
west of U.S.-17.
(ii) Map of Unit 2 follows:
Figure 3 to Florida Bonneted Bat (Eumops floridanus) paragraph (7)(ii)
[[Page 71492]]
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(8) Unit 3: Babcock Unit; Charlotte, Lee, and Glades Counties,
Florida.
(i) Unit 3 encompasses 133,560 ac (54,050 ha) of lands in
Charlotte, Lee, and Glades Counties, Florida. This unit consists of two
subunits, with the majority of Unit 3 located in Charlotte County, east
of I-75; other portions are in northwestern Lee and western Glades
Counties.
(ii) Map of Unit 3 follows:
Figure 4 to Florida Bonneted Bat (Eumops floridanus) paragraph (8)(ii)
[[Page 71493]]
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(9) Unit 4: Fisheating Creek Unit; Glades and Highlands Counties,
Florida. (i) Unit 4 encompasses 12,995 ac (5,259 ha) of lands in Glades
and Highlands Counties, Florida. The majority of Unit 4 is located in
Glades County, west of U.S.-27; the remainder of the unit extends north
into southern Highlands County.
(ii) Map of Unit 4 follows:
Figure 5 to Florida Bonneted Bat (Eumops floridanus) paragraph (9)(ii)
[[Page 71494]]
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(10) Unit 5: Corkscrew Unit; Lee and Collier Counties, Florida.
(i) Unit 5 encompasses 48,865 ac (19,775 ha) of lands in Lee and
Collier Counties, Florida. This unit straddles the Lee/Collier county
line, east of I-75.
(ii) Map of Unit 5 follows:
Figure 6 to Florida Bonneted Bat (Eumops floridanus) paragraph (10)(ii)
[[Page 71495]]
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(11) Unit 6: Big Cypress Unit; Collier, Hendry, and Monroe
Counties, Florida.
(i) Unit 6 encompasses 728,544 ac (294,831 ha) of lands in Collier,
Hendry, and Monroe Counties, Florida. The majority of Unit 6 is located
in Collier County, south of I-75; the remainder of the unit occurs in
southern Hendry County and mainland portions of Monroe County.
(ii) Map of Unit 6 follows:
Figure 7 to Florida Bonneted Bat (Eumops floridanus) paragraph (11)(ii)
[[Page 71496]]
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(12) Unit 7: Everglades Tree Islands Unit; Miami-Dade County,
Florida.
(i) Unit 7 encompasses 16,604 ac (6,719 ha) of lands in Miami-Dade
County, Florida, south of Tamiami Trail and west of Krome Avenue.
(ii) Map of Unit 7 follows:
Figure 8 to Florida Bonneted Bat (Eumops floridanus) paragraph (12)(ii)
[[Page 71497]]
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(13) Unit 8: Long Pine Key Unit; Miami-Dade County, Florida.
(i) Unit 8 encompasses 25,337 ac (10,254 ha) of lands in Miami-Dade
County, Florida, along Main Park Road (SR-9336) between Mahogany
Hammock and SW 237th Avenue.
(ii) Map of Unit 8 follows:
Figure 9 to Florida Bonneted Bat (Eumops floridanus) paragraph (13)(ii)
[[Page 71498]]
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(14) Unit 9: Miami Rocklands Unit; Miami-Dade County, Florida.
(i) Unit 9 encompasses 4,324 ac (1,750 ha) of lands in Miami-Dade
County, Florida. This unit consists of 36 subunits located between
Tamiami Trail to the north and SR-9336 to the south, and is surrounded
by a dense urban matrix typical of the Miami metropolitan area.
(ii) Maps of Unit 9 follow:
Figure 10 to Florida Bonneted Bat (Eumops floridanus) paragraph
(14)(ii)
[[Page 71499]]
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Figure 11 to Florida Bonneted Bat (Eumops floridanus) paragraph
(14)(ii)
[[Page 71500]]
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Figure 12 to Florida Bonneted Bat (Eumops floridanus) paragraph
(14)(ii)
[[Page 71501]]
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* * * * *
Stephen Guertin,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2022-25218 Filed 11-21-22; 8:45 am]
BILLING CODE 4333-15-C
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</html>Indexed from Federal Register on November 22, 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.