Proposed Rule2023-17666
Endangered and Threatened Wildlife and Plants; Threatened Species Status With Section 4(d) Rule for Brawleys Fork Crayfish and Designation of Critical Habitat
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
August 22, 2023
Issuing agencies
Interior DepartmentFish and Wildlife Service
Abstract
We, the U.S. Fish and Wildlife Service (Service), propose to list the Brawleys Fork crayfish (Cambarus williami), a freshwater crayfish species from Tennessee, as a threatened species and designate critical habitat under the Endangered Species Act of 1973, as amended (Act). This determination also serves as our 12-month finding on a petition to list the Brawleys Fork crayfish. After a review of the best available scientific and commercial information, we find that listing the species is warranted. Accordingly, we propose to list the Brawleys Fork crayfish as a threatened species with a rule issued under section 4(d) of the Act ("4(d) rule"). If we finalize this rule as proposed, it would add this species to the List of Endangered and Threatened Wildlife and extend the Act's protections to the species. We also propose to designate critical habitat for the Brawleys Fork crayfish under the Act. In total, approximately 86.6 river miles (139.4 river kilometers) in Cannon, Rutherford, and Warren Counties, Tennessee, fall within the boundaries of the proposed critical habitat designation. We also announce the availability of a draft economic analysis of the proposed designation of critical habitat for Brawleys Fork crayfish.
Full Text
<html>
<head>
<title>Federal Register, Volume 88 Issue 161 (Tuesday, August 22, 2023)</title>
</head>
<body><pre>
[Federal Register Volume 88, Number 161 (Tuesday, August 22, 2023)]
[Proposed Rules]
[Pages 57292-57327]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-17666]
[[Page 57291]]
Vol. 88
Tuesday,
No. 161
August 22, 2023
Part IV
Department of the Interior
-----------------------------------------------------------------------
Fish and Wildlife Service
-----------------------------------------------------------------------
50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Threatened Species
Status With Section 4(d) Rule for Brawleys Fork Crayfish and
Designation of Critical Habitat; Proposed Rule
Federal Register / Vol. 88 , No. 161 / Tuesday, August 22, 2023 /
Proposed Rules
[[Page 57292]]
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R4-ES-2023-0065; FF09E21000; FXES1111090FEDR 234]
RIN 1018-BG18
Endangered and Threatened Wildlife and Plants; Threatened Species
Status With Section 4(d) Rule for Brawleys Fork Crayfish and
Designation of Critical Habitat
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
list the Brawleys Fork crayfish (Cambarus williami), a freshwater
crayfish species from Tennessee, as a threatened species and designate
critical habitat under the Endangered Species Act of 1973, as amended
(Act). This determination also serves as our 12-month finding on a
petition to list the Brawleys Fork crayfish. After a review of the best
available scientific and commercial information, we find that listing
the species is warranted. Accordingly, we propose to list the Brawleys
Fork crayfish as a threatened species with a rule issued under section
4(d) of the Act (``4(d) rule''). If we finalize this rule as proposed,
it would add this species to the List of Endangered and Threatened
Wildlife and extend the Act's protections to the species. We also
propose to designate critical habitat for the Brawleys Fork crayfish
under the Act. In total, approximately 86.6 river miles (139.4 river
kilometers) in Cannon, Rutherford, and Warren Counties, Tennessee, fall
within the boundaries of the proposed critical habitat designation. We
also announce the availability of a draft economic analysis of the
proposed designation of critical habitat for Brawleys Fork crayfish.
DATES: We will accept comments received or postmarked on or before
October 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 October 6, 2023.
ADDRESSES: 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-2023-0065,
which is the docket number for this rulemaking. Then, click on the
Search button. On the resulting page, in the panel on the left side of
the screen, under the Document Type heading, check the Proposed Rule
box to locate this document. You may submit a comment by clicking on
``Comment.''
(2) By hard copy: Submit by U.S. mail to: Public Comments
Processing, Attn: FWS-R4-ES-2023-0065, 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: Supporting materials, such as
the species status assessment report, are available on the Service's
website at at <a href="https://www.fws.gov/library/collections/Brawleys-Fork-crayfish">https://www.fws.gov/library/collections/Brawleys-Fork-crayfish</a> and at <a href="https://www.regulations.gov">https://www.regulations.gov</a> in Docket No. FWS-R4-ES-
2023-0065. For the proposed critical habitat designation, the
coordinates or plot points or both from which the maps are generated
are included in the decision file for this critical habitat designation
and are available at <a href="https://www.regulations.gov">https://www.regulations.gov</a> at Docket No. FWS-R4-
ES-2023-0065 and on the Service's website at <a href="https://www.fws.gov/library/collections/Brawleys-Fork-crayfish">https://www.fws.gov/library/collections/Brawleys-Fork-crayfish</a>.
FOR FURTHER INFORMATION CONTACT: Daniel Elbert, Field Supervisor, U.S.
Fish and Wildlife Service, Tennessee Ecological Services Field Office,
446 Neal Street, Cookeville, Tennessee, 38501; Telephone 931-254-9617.
Individuals in the United States who are deaf, deafblind, hard of
hearing, or have a speech disability may dial 711 (TTY, TDD, or
TeleBraille) to access telecommunications relay services. Individuals
outside the United States should use the relay services offered within
their country to make international calls to the point-of-contact in
the United States.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. Under the Act, a species warrants
listing if it meets the definition of an endangered species (in danger
of extinction throughout all or a significant portion of its range) or
a threatened species (likely to become endangered in the foreseeable
future throughout all or a significant portion of its range). If we
determine that a species warrants listing, we must list the species
promptly and designate the species' critical habitat to the maximum
extent prudent and determinable. We have determined that the Brawleys
Fork crayfish meets the definition of a threatened species; therefore,
we are proposing to list it as such and proposing a designation of its
critical habitat. Both listing a species as an endangered or threatened
species and making a critical habitat determination can be completed
only by issuing a rule through the Administrative Procedure Act
rulemaking process (5 U.S.C. 551 et seq.).
What this document does. We propose to list the Brawleys Fork
crayfish as a threatened species with a rule under section 4(d) of the
Act, and we propose the designation of critical habitat for the
species.
The basis for our action. Under the Act, we may determine that a
species is an endangered or threatened species because of any of five
factors: (A) The present or threatened destruction, modification, or
curtailment of its habitat or range; (B) overutilization for
commercial, recreational, scientific, or educational purposes; (C)
disease or predation; (D) the inadequacy of existing regulatory
mechanisms; or (E) other natural or manmade factors affecting its
continued existence. We have determined that Brawleys Fork crayfish is
threatened due to the following threats: habitat loss and degradation
due to sedimentation and water quality impairments from sources
including agricultural practices, horticultural practices, and
urbanization; and instream modification including impoundments, gravel
dredging, and channel alteration. Each of the threats influencing
Brawleys Fork crayfish viability may be further exacerbated by the
effects of small, isolated populations and the future effects of
climate change.
Section 4(a)(3) of the Act requires the Secretary of the Interior
(Secretary) to designate critical habitat concurrent with listing to
the maximum extent prudent and determinable. Section 3(5)(A) of the Act
defines critical habitat as (i) the specific areas within the
geographical area occupied by the species, at the time it is listed, on
which are found those physical or biological features (I) essential to
the conservation of the species and (II) which may require special
management considerations or protections; and (ii) specific areas
outside the geographical area occupied by the species at the time
[[Page 57293]]
it is listed, upon a determination by the Secretary that such areas are
essential for the conservation of the species. Section 4(b)(2) of the
Act states that the Secretary must make the designation on the basis of
the best scientific data available and after taking into consideration
the economic impact, the impact on national security, and any other
relevant impacts of specifying any particular area as critical habitat.
Information Requested
We intend that any final action resulting from this proposed rule
will be based on the best scientific and commercial data available and
be as accurate and as effective as possible. Therefore, we request
comments or information from other governmental agencies, Native
American Tribes, the scientific community, industry, or any other
interested parties concerning this proposed rule.
We particularly seek comments concerning:
(1) The species' biology, range, and population trends, including:
(a) Biological or ecological requirements of the species, including
habitat requirements for feeding, breeding, and sheltering;
(b) Genetics and taxonomy;
(c) Historical and current range, including distribution patterns
and the locations of any additional populations of this species;
(d) Historical and current population levels, and current and
projected trends; and
(e) Past and ongoing conservation measures for the species, its
habitat, or both.
(2) Threats and conservation actions affecting the species,
including:
(a) Factors that may be affecting the continued existence of the
species, which may include habitat modification or destruction,
overutilization, disease, predation, the inadequacy of existing
regulatory mechanisms, or other natural or manmade factors.
(b) Biological, commercial trade, or other relevant data concerning
any threats (or lack thereof) to this species.
(c) Existing regulations or conservation actions that may be
addressing threats to this species.
(3) Additional information concerning the historical and current
status of this species.
(4) Information on regulations that may be necessary and advisable
to provide for the conservation of the Brawleys Fork crayfish and that
we can consider in developing a 4(d) rule for the species. In
particular, information concerning the extent to which we should
include any of the section 9 prohibitions in the 4(d) rule or whether
we should consider any additional exceptions from the prohibitions in
the 4(d) rule.
(5) Specific information on:
(a) The amount and distribution of Brawleys Fork crayfish habitat;
(b) Any additional areas occurring within the range of the species,
Cannon, Rutherford, and Warren Counties, Tennessee, that should be
included in the designation because they (i) are occupied at the time
of listing and contain the physical or biological features that are
essential to the conservation of the species and that may require
special management considerations, or (ii) are unoccupied at the time
of listing and are essential for the conservation of the species; and
(c) Special management considerations or protection that may be
needed in critical habitat areas we are proposing, including managing
for the potential effects of climate change; and
(d) To evaluate the potential to include areas not occupied at the
time of listing, we particularly seek comments regarding whether
occupied areas are adequate for the conservation of the species.
Additionally, please provide 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 qualify as habitat for the species.
(6) Land use designations and current or planned activities in the
subject areas and their possible impacts on proposed critical habitat.
(7) 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.
(8) Information on the extent to which the description of probable
economic impacts in the draft economic analysis is a reasonable
estimate of the likely economic impacts and any additional information
regarding probable economic impacts that we should consider.
(9) Whether any specific areas we are proposing for critical
habitat designation should be considered for exclusion under section
4(b)(2) of the Act, and whether the benefits of potentially excluding
any specific area outweigh the benefits of including that area under
section 4(b)(2) of the Act. If you think we should exclude any
additional areas, please provide information supporting a benefit of
exclusion.
(10) Whether we could improve or modify our approach to designating
critical habitat in any way to provide for greater public participation
and understanding, or to better accommodate public concerns and
comments.
Please include sufficient information with your submission (such as
scientific journal articles or other publications) to allow us to
verify any scientific or commercial information you include.
Please note that submissions merely stating support for, or
opposition to, the action under consideration without providing
supporting information, although noted, do not provide substantial
information necessary to support a determination. Section 4(b)(1)(A) of
the Act directs that determinations as to whether any species is an
endangered or a threatened species must be made solely on the basis of
the best scientific and commercial data available, and section 4(b)(2)
of the Act directs that the Secretary shall designate critical habitat
on the basis of the best scientific data available.
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in ADDRESSES. We request that you
send comments only by the methods described in ADDRESSES.
If you submit information via <a href="https://www.regulations.gov">https://www.regulations.gov</a>, your
entire submission--including any personal identifying information--will
be posted on the website. If your submission is made via a hardcopy
that includes personal identifying information, you may request at the
top of your document that we withhold this information from public
review. However, we cannot guarantee that we will be able to do so. We
will post all hardcopy submissions on <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection on <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Because we will consider all comments and information we receive
during the comment period, our final determinations may differ from
this proposal. Based on the new information we receive (and any
comments on that new information), we may conclude that the species is
endangered instead of threatened, or we may conclude that the species
does not warrant listing as either an endangered species or a
threatened species. For critical habitat, our final designation may not
include all areas
[[Page 57294]]
proposed, may include some additional areas that meet the definition of
critical habitat, or may exclude some areas if we find the benefits of
exclusion outweigh the benefits of inclusion and exclusion will not
result in the extinction of the species. In addition, we may change the
parameters of the prohibitions or the exceptions to those prohibitions
in the 4(d) rule if we conclude it is appropriate in light of comments
and new information received. For example, we may expand the
prohibitions to include prohibiting additional activities if we
conclude that those additional activities are not compatible with
conservation of the species. Conversely, we may establish additional
exceptions to the prohibitions in the final rule if we conclude that
the activities would facilitate or are compatible with the conservation
and recovery of the species.
Public Hearing
Section 4(b)(5) of the Act provides for a public hearing on this
proposal, if requested. Requests must be received by the date specified
in DATES. Such requests must be sent to the address shown in FOR
FURTHER INFORMATION CONTACT. We will schedule a public hearing on this
proposal, if requested, and announce the date, time, and place of the
hearing, as well as how to obtain reasonable accommodations, in the
Federal Register and local newspapers at least 15 days before the
hearing. We may hold the public hearing in person or virtually via
webinar. We will announce any public hearing on our website, in
addition to the Federal Register. The use of virtual public hearings is
consistent with our regulations at 50 CFR 424.16(c)(3).
Previous Federal Actions
On April 20, 2010, we received a petition to list 404 species,
including the Brawleys Fork crayfish, as endangered or threatened
species, and designate critical habitat under the Act (Center for
Biological Diversity et al. 2010, entire). Our subsequent 90-day
finding concluded that the petition provided substantial information
indicating that the Brawleys Fork crayfish may be warranted for
listing, and that the status of the species warranted further review
(September 27, 2011; 76 FR 59836).
Peer Review
A species status assessment (SSA) team prepared an SSA report for
the Brawleys Fork crayfish. The SSA team was composed of Service
biologists, in consultation with other species experts. The SSA report
represents a compilation of the best scientific and commercial data
available concerning the status of the species, including the impacts
of past, present, and future factors (both negative and beneficial)
affecting the species.
In accordance with our joint policy on peer review published in the
Federal Register on July 1, 1994 (59 FR 34270), and our August 22,
2016, memorandum updating and clarifying the role of peer review of
listing actions under the Act, we solicited independent scientific
review of the information contained in the Brawleys Fork crayfish SSA
report. The Service sent the SSA report to four independent peer
reviewers and received no responses.
I. Proposed Listing Determination
Background
A thorough review of the taxonomy, life history, and distribution
of the Brawleys Fork crayfish (Cambarus williami) is presented in the
SSA report (version 1.1; Service 2023, pp. 14-24).
The Brawleys Fork crayfish is a small, freshwater crayfish endemic
to the Nashville Basin and Eastern Highland Rim ecoregions of central
Tennessee. The species occurs primarily in small- to medium-sized
streams (first- to third-order streams) and in one medium-sized river
(fifth order) of the Stones and Collins River systems (Bouchard and
Bouchard 1995, p. 6; Williams et al. 2017, p. 51; Giddens and Mattingly
2020, pp. 2-3; Johansen 2021, pers. comm. 2021; Mattingly 2021, pers.
comm.; Simmons 2021, pers. comm.; Williams 2021, pers. comm.).
Brawleys Fork crayfish is known to occur in 20 streams in 5
Hydrologic Unit Code 12 (HUC 12) watersheds within its range. The
Brawleys Fork crayfish range has increased from historical levels and
the current known range of the species is wider than the historical
range (no range contraction) (Bouchard and Bouchard 1995, entire;
Withers and McCoy 2005, entire; Rohrbach and Withers 2006, entire;
Giddens and Mattingly 2020, entire). Brawleys Fork crayfish known
occurrences are in streams with moderate to fast flow and main channel
depths ranging from 5 to 30 centimeters (cm) (2-12 inches (in))
(Withers and McCoy 2005, pp. 3, 27-48; Rohrbach and Withers 2006, p. 3;
Williams et al. 2017, p. 51). Brawleys Fork crayfish typically occupy
runs and riffles in streams with layered chert gravel and cobble
substrate with ample interstitial space not consolidated by finer
substrates such as sand or silt (Khan 2021, unpublished data). This
species frequently burrows into chert gravel substrate within the
wetted stream channel during normal and reduced stream flows to escape
predators and access subterranean water (Bouchard and Bouchard 1995, p.
6; Williams et al. 2017, p. 51; Giddens and Mattingly 2020, pp. 2-3).
Streams with Brawleys Fork crayfish occurrence are characterized by
water temperatures ranging from 10 to 23 degrees Celsius ([deg]C) (50-
73 degrees Fahrenheit ([deg]F)) (Giddens and Mattingly 2020, pp. 4-5;
Simmons 2021, pers. comm.). Ample riparian vegetation is an important
habitat characteristic that creates shaded conditions to maintain the
cooler water temperature required by the species and buffers streams
against pollutants carried by stormwater runoff. Suitable habitat
conditions also support an adequate prey base for Brawleys Fork
crayfish, indicated by a healthy aquatic community structure including
native benthic macroinvertebrates, fishes, and plant matter (e.g., leaf
litter, algae, detritus). Brawleys Fork crayfish site occupancy is
associated with a high volume of clean groundwater discharged into the
stream from subterranean aquifers (Simmons 2021, pers. comm.).
Although the specific diet of Brawleys Fork crayfish is unknown, it
is likely similar to congeneric species of the same size and includes
smaller invertebrates, periphyton, and plant detritus. Individuals
reach reproductive maturity by their first year. A portion of males are
in reproductive form in all months except August. Females bear eggs in
the spring as typical of most crayfish species. The Brawleys Fork
crayfish lifespan is estimated to be 3 years with two to three age
classes present in healthy populations.
Regulatory and Analytical Framework
Regulatory Framework
Section 4 of the Act (16 U.S.C. 1533) and the implementing
regulations in title 50 of the Code of Federal Regulations set forth
the procedures for determining whether a species is an endangered
species or a threatened species, issuing protective regulations for
threatened species, and designating critical habitat for endangered and
threatened species. In 2019, jointly with the National Marine Fisheries
Service, the Service issued a final rule that revised the regulations
in 50 CFR part 424 regarding how we add, remove, and reclassify
endangered and threatened species and the criteria for designating
listed species' critical habitat (84 FR 45020; August 27, 2019). On the
same day, the Service also issued final regulations that, for species
listed as
[[Page 57295]]
threatened species after September 26, 2019, eliminated the Service's
general protective regulations automatically applying to threatened
species the prohibitions that section 9 of the Act applies to
endangered species (84 FR 44753; August 27, 2019).
The Act defines an ``endangered species'' as a species that is in
danger of extinction throughout all or a significant portion of its
range, and a ``threatened species'' as a species that is likely to
become an endangered species within the foreseeable future throughout
all or a significant portion of its range. The Act requires that we
determine whether any species is an endangered species or a threatened
species because of any of the following factors:
(A) The present or threatened destruction, modification, or
curtailment of its habitat or range;
(B) Overutilization for commercial, recreational, scientific, or
educational purposes;
(C) Disease or predation;
(D) The inadequacy of existing regulatory mechanisms; or
(E) Other natural or manmade factors affecting its continued
existence.
These factors represent broad categories of natural or human-caused
actions or conditions that could have an effect on a species' continued
existence. In evaluating these actions and conditions, we look for
those that may have a negative effect on individuals of the species, as
well as other actions or conditions that may ameliorate any negative
effects or may have positive effects.
We use the term ``threat'' to refer in general to actions or
conditions that are known to or are reasonably likely to negatively
affect individuals of a species. The term ``threat'' includes actions
or conditions that have a direct impact on individuals (direct
impacts), as well as those that affect individuals through alteration
of their habitat or required resources (stressors). The term ``threat''
may encompass--either together or separately--the source of the action
or condition or the action or condition itself.
However, the mere identification of any threat(s) does not
necessarily mean that the species meets the statutory definition of an
``endangered species'' or a ``threatened species.'' In determining
whether a species meets either definition, we must evaluate all
identified threats by considering the species' expected response and
the effects of the threats--in light of those actions and conditions
that will ameliorate the threats--on an individual, population, and
species level. We evaluate each threat and its expected effects on the
species, then analyze the cumulative effect of all of the threats on
the species as a whole. We also consider the cumulative effect of the
threats in light of those actions and conditions that will have
positive effects on the species, such as any existing regulatory
mechanisms or conservation efforts. The Secretary determines whether
the species meets the definition of an ``endangered species'' or a
``threatened species'' only after conducting this cumulative analysis
and describing the expected effect on the species now and in the
foreseeable future.
The Act does not define the term ``foreseeable future,'' which
appears in the statutory definition of ``threatened species.'' Our
implementing regulations at 50 CFR 424.11(d) set forth a framework for
evaluating the foreseeable future on a case-by-case basis. The term
``foreseeable future'' extends only so far into the future as we can
reasonably determine that both the future threats and the species'
responses to those threats are likely. In other words, the foreseeable
future is the period of time in which we can make reliable predictions.
``Reliable'' does not mean ``certain''; it means sufficient to provide
a reasonable degree of confidence in the prediction. Thus, a prediction
is reliable if it is reasonable to depend on it when making decisions.
It is not always possible or necessary to define the foreseeable
future as a particular number of years. Analysis of the foreseeable
future uses the best scientific and commercial data available and
should consider the timeframes applicable to the relevant threats and
to the species' likely responses to those threats in view of its life-
history characteristics. Data that are typically relevant to assessing
the species' biological response include species-specific factors such
as lifespan, reproductive rates or productivity, certain behaviors, and
other demographic factors.
Analytical Framework
The SSA report documents the results of our comprehensive
biological review of the best scientific and commercial data regarding
the status of the species, including an assessment of the potential
threats to the species. The SSA report does not represent our decision
on whether the species should be proposed for listing as an endangered
or threatened species under the Act. However, it does provide the
scientific basis that informs our regulatory decisions, which involve
the further application of standards within the Act and its
implementing regulations and policies.
To assess Brawleys Fork crayfish viability, we used the three
conservation biology principles of resiliency, redundancy, and
representation (Shaffer and Stein 2000, pp. 306-310). Briefly,
resiliency is the ability of the species to withstand environmental and
demographic stochasticity (for example, wet or dry, warm or cold
years), redundancy is the ability of the species to withstand
catastrophic events (for example, droughts, large pollution events),
and representation is the ability of the species to adapt to both near-
term and long-term changes in its physical and biological environment
(for example, climate conditions, pathogens). In general, species
viability will increase with increases in resiliency, redundancy, and
representation (Smith et al. 2018, p. 306). Using these principles, we
identified the species' ecological requirements for survival and
reproduction at the individual, population, and species levels, and
described the beneficial and risk factors influencing the species'
viability.
The SSA process can be categorized into three sequential stages.
During the first stage, we evaluated the individual species' life-
history needs. The next stage involved an assessment of the historical
and current condition of the species' demographics and habitat
characteristics, including an explanation of how the species arrived at
its current condition. The final stage of the SSA involved making
predictions about the species' responses to positive and negative
environmental and anthropogenic influences. Throughout all of these
stages, we used the best available information to characterize
viability as the ability of a species to sustain populations in the
wild over time. We use this information to inform our regulatory
decision.
The following is a summary of the key results and conclusions from
the SSA report; the full SSA report can be found at FWS-R4-ES-2023-0065
on <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Summary of Biological Status and Threats
In this discussion, we review the biological condition of the
species and its resources, and the threats that influence the species'
current and future condition, in order to assess the species' overall
viability and the risks to that viability.
Species Needs
For Brawleys Fork crayfish populations to have sufficient
[[Page 57296]]
resiliency, the needs of individuals (cool, clean flowing water with
unembedded substrate) must also be met at a large enough scale to
address population and species-level needs. As described under
Background above, the individual needs of Brawleys Fork crayfish are
primarily a function of habitat condition and are summarized in Table
1.
Table 1--Individual Needs of Brawleys Fork Crayfish
------------------------------------------------------------------------
Type of requirement Description
------------------------------------------------------------------------
Stream permanence................. Permanent.
Stream order...................... First- to third-order streams.
Water temperature................. 10-23 [deg]C (50-73 [deg]F).
Stream flow velocity.............. Riffle and run habitats with
moderate to fast flow.
Stream substrate.................. Chert gravel substrate with
unconsolidated pieces of cobble and
gravel.
Embeddedness...................... Low embeddedness so that food and
refugia under rocks and in crevices
remain accessible.
Refugia........................... Cavities and burrows within gravel.
Diet.............................. Likely smaller invertebrates,
periphyton, and/or plant detritus
(specific diet unknown).
------------------------------------------------------------------------
Brawleys Fork crayfish populations need the same key habitat-based
resources as individuals to maintain sufficient resiliency (table 1),
as well as a sustainable population size and connectivity within and
among populations. Populations also need relatively stable conditions
within the stream ecosystem each year, especially during the spring
when females are ovigerous, to maintain successful reproduction and
recruitment. Connectivity among populations is necessary to avoid the
effects of genetic isolation, promote genetic diversity, and facilitate
gene flow via emigration, immigration, and reproduction. For Brawleys
Fork crayfish, maintaining gene flow within and among populations is
facilitated by corridors of suitable habitat for movement of
individuals throughout the stream network, including road crossings
that are designed to easily pass aquatic organisms at a range of
streamflow conditions. The species may move between areas of suitable
habitat within and among connected streams in response to behavioral
drivers (dispersal or mating) or in search of suitable habitat in
response to environmental drivers when species' needs are no longer met
in previously suitable habitat (reduced prey, unavailable shelter or
refugia, inadequate conditions for breeding).
For species viability to be sufficient, there must be adequate
redundancy (suitable number of populations, distribution of
populations, and connectivity between populations to allow the species
to withstand catastrophic events) and representation (suitable genetic
and environmental diversity to allow the species to adapt to changing
environmental conditions). Redundancy improves with more sufficiently
resilient, connected populations to allow recovery after catastrophic
events. Representation or adaptive capacity is maintained with genetic
and ecological diversity within and among populations.
Threats
We identified sedimentation, water quality degradation, and
instream modification as the primary threats currently affecting the
Brawleys Fork crayfish. The impacts of these threats may be further
exacerbated by the effects of small, isolated populations and the
future effects of climate change. The following discussion provides a
summary of the threats and stressors that are affecting or may be
affecting the current and future condition of the Brawleys Fork
crayfish throughout some or all of its range. A more detailed
description may be found in the SSA report (Service 2023, pp. 24-38).
Sedimentation
Sedimentation of substrate and filling of interstitial spaces is
the key driver affecting the Brawleys Fork crayfish's condition.
Crayfish are benthic (bottom-dwelling) invertebrates that occupy stream
or riverine habitats. The species requires unembedded rocks, crevices,
and woody debris for access to prey, refuge from predation and
competition, and cover during vulnerable periods such as molting or egg
extrusion. Brawleys Fork crayfish density is strongly and positively
correlated with the relative abundance of unconsolidated cobble and
gravel substrates (Withers and McCoy 2005, p. 3; Rohrbach and Withers
2006, p. 3). Excessive sediment input from a variety of sources can
overwhelm the capacity of the lower order stream systems where the
species occurs to remove sediment (except during heavy rainfall
events), resulting in sediment deposition that embeds necessary
species' resources (e.g., food, shelter, refugia) and negatively
impacts Brawleys Fork crayfish individuals and populations (Withers and
McCoy 2005, p. 5; Rohrbach and Withers 2006, p. 8). Sedimentation is
also related to water quality as sediment may carry pollutants into the
stream and cloud the water with suspended solids, reducing light
availability and causing aquatic plants to die.
In the Brawleys Fork crayfish range, the sources of sedimentation
that have affected or are affecting the species and its habitat as a
result of current and historical surrounding land uses include
agriculture and horticulture practices, stream impoundment, and
urbanization and development. These stressors are present rangewide and
impact the viability of Brawleys Fork crayfish at a species level, but
the sources are more concentrated in some areas and may affect some
individuals and populations to a greater extent (e.g., increased
urbanization in the West Fork Stones watershed).
Agriculture and horticulture occur rangewide on the relatively flat
terrain of the Eastern Highland Rim and Nashville Basin regions where
the species occurs, particularly lands in row crops, hay/pasture,
livestock grazing, and plant nurseries. Agricultural and horticultural
practices that do not implement best management practices (BMPs) or
improperly implement BMPs influence Brawleys Fork crayfish viability by
contributing to sedimentation within nearby streams. Practices that
contribute to sedimentation include harvest techniques that expose bare
soil and use of heavy machinery that disturbs soil composition and
breaks down sediments into fine particles (Burskey and Simon 2009, p.
207). Heavy machinery entering the stream channel via the stream bank
contributes sediment and modifies the channel structure (Schmidt 1982,
p. 39).
Stream impoundment results in decreased flow velocity and fine
sediment accumulation leading to
[[Page 57297]]
subsequent substrate embeddedness, decreased woody debris availability,
more severely entrenched stream channels, and increased water
temperature (Arnwine et al. 2006, p. 3; Adams 2013, p. 1328; Barnett
and Adams 2021, p. 3; Williams 2021, pers. comm.). In the Brawleys Fork
crayfish's range, impounded streams demonstrated a lower percentage of
dominant cobble substrate compared to unimpounded streams, and,
statewide, 80 percent of impoundments failed to meet regional habitat
quality expectations as a result of sediment deposition below small
dams (Arnwine et al. 2006, pp. 3, 62). However, the percentage of small
impoundments (less than 250 acres) within the Brawleys Fork crayfish's
range is relatively low in comparison to other watersheds in Tennessee
(0.6 and 1.7 percent in the Stones and Collins watersheds,
respectively) (Arnwine et al. 2006, pp. 9-14). Small impoundments are
associated with large plots of residential development in this region,
and we expect the impact of this threat may increase in the future as
projected future residential development increases, particularly in the
East and West Fork Stones River watersheds (Withers and McCoy 2005, p.
5; Rohrbach and Withers 2006, p. 8).
Urbanization, commercial and residential development, and
associated infrastructure and road construction have affected Brawleys
Fork crayfish and its habitat in the past and are expected to continue
to affect the species. In the Brawleys Fork crayfish's range, the human
population increased as much as 122 percent from 1990 to 2010 and an
additional 32 percent from 2010 to 2020 (World Population Review 2021).
In the future, urbanization in the Southeast is projected to increase
up to 192 percent by 2060. In addition, the greatest change in land use
associated with urbanization and development is expected to be the
conversion of agricultural land into urban land use (Terando et al.
2014, p. 5). Because Brawleys Fork crayfish occurs in a region of heavy
agricultural land use, the threat of land conversion as a result of
urbanization and development is expected to affect the species to a
greater extent in the future as urbanization increases. Streams in the
Southeast experience significant impacts to water quality when urban
land use reaches 10-14 percent of the catchment or drainage area
(Suttles et al. 2018, p. 813). One watershed with Brawleys Fork
crayfish occurrences now has greater than 10 percent of its area in
urban land use (West Fork Stones River).
Urbanization and development can alter water quality and hydrology
in a number of ways. An increase in impervious surfaces associated with
urban land use directly results in a higher volume and velocity of
stormwater runoff, scouring of streambeds and stream banks, increased
water temperatures, and increased sediment and pollutants discharged
into receiving streams. The effects of sedimentation and other
pollutants on water quality and the Brawleys Fork crayfish as a result
of a variety of stressors are described under Sedimentation below.
Brawleys Fork crayfish requires cool, clean water, and the increased
water quantity and pollutants associated with increased urbanization
negatively impact habitat conditions. Temperature tolerances of the
Brawleys Fork crayfish are unknown. However, life stage development of
several aquatic organisms, including crayfish, is temperature-dependent
and an increase in water temperature could result in changes to growth
rates, reproduction, and overall survival (Poff et al. 2002, p. 7). In
addition, a higher rate of microbial activity is associated with warmer
water temperatures, leading to an increased rate of organic material
decomposition and nutrient loading within streams (Poff et al. 2002, p.
7). Although we do not have temperature information for all streams
with Brawley's crayfish occurrences, we expect that increased water
temperature associated with urbanization and other stressors negatively
impacts the species (Lockaby et al. 2013, p. 333).
Water Quality
Suitable water quality is a requirement for the Brawleys Fork
crayfish. Although little is known regarding the Brawleys Fork
crayfish's specific water quality requirements, water quality
parameters such as water temperature, nutrient load, pH, and
conductivity are significant factors influencing several biological
processes of crayfish including osmoregulation, immunology, acid/base
regulation, gas exchange, reproduction, molting, growth rate, and
behavior (Romano and Zeng 2013, p. 17; Schorr et al. 2013, p. 340). In
the Brawleys Fork crayfish's range, agriculture and horticultural
practices, urbanization, and wastewater treatment outfall negatively
affect the species and its habitat through changes to water quality.
Agricultural and horticultural practices influence water quality by
means of stormwater runoff that transports chemicals (pesticides,
fungicides, and herbicides) and nutrients (fertilizers and livestock
waste) into nearby streams. In areas with no BMPs or improperly
implemented BMPs, stormwater runoff from agricultural fields during
planting season (spring and early summer) is the most significant
source of water quality contamination. Several stream reaches with
Brawleys Fork crayfish occurrences may be exposed to contaminants on an
ongoing basis. For example, horticultural lands surrounding occurrences
in Mountain Creek receive pesticide, fungicide, and fertilizer
applications, and these chemicals enter the adjacent stream (Mattingly
et al. 2021, entire; Mattingly 2021, pers. comm.). Pesticides can cause
deleterious effects on crayfish behavior, increasing risk of predation
(Sohn et al. 2018, pp. 900, 905).
Stormwater runoff from agricultural and horticultural practices
also contributes to increased nutrient (nitrogen and phosphate) loads
within nearby streams through fertilizers and livestock waste
transported into the streams. Nitrogen loading has deleterious effects
on molting, respiration, disease resistance, and disruption of
reproductive behaviors in crustaceans, and we expect similar effects to
Brawleys Fork crayfish fitness and reproductive success (Romano and
Zeng 2013, p. 17; Schorr et al. 2013, p. 340). In addition, slower
areas of stream habitat between occupied riffles and runs may become
stagnant and oxygen depleted as a result of livestock waste discharged
into the stream (Rorhbach and Withers 2006, p. 8; Withers and McCoy
2005, p. 5).
Urbanization and development influence Brawleys Fork crayfish
through effects to water quality as described under Sedimentation
above. The increased impervious surface associated with urbanization
results in higher flow, higher velocity, increased transport of
contaminants, and warmer water temperatures that negatively impact
Brawleys Fork crayfish through habitat degradation.
Historically, the Woodbury wastewater treatment plant has
contributed to increased nutrient loads in the East Fork Stones River
with negative impacts including fish kills and decreased benthic
macroinvertebrate communities (indication of water quality and
ecosystem function) (Schmidt 1982, pp. 26, 30, 49-50). The effects of
excessive nutrients and nutrient loading on crustaceans are described
above. More recently, the treatment plant was out of compliance or not
complete and/or
[[Page 57298]]
stable in 4 of 13 inspections from 2007 to 2022, primarily due to
issues with sampling. Spring overflows with discharges outside of the
National Permit Discharge Elimination System limits have occurred in
recent years as well.
Instream Modification
Stream modification and impoundment influences Brawleys Fork
crayfish and its habitat through altered stream depth and flow,
sedimentation, and water quality degradation. Stream channel
modification has occurred and continues to occur in the Brawleys Fork
crayfish range. Reaches of Mountain Creek, East Fork Stones River, and
Hollis Creek with Brawleys Fork crayfish occurrences have experienced
significant disturbance and modification including heavy machinery
directly entering the stream channel to dredge gravel, modify stream
banks, and alter the stream channel (Mattingly et al. 2021, entire;
Mattingly 2021, pers. comm.). For headwater species with specific
habitat needs such as Brawleys Fork crayfish, even small alterations to
the channel, flow, and substrate may affect individuals or populations.
In Mountain Creek, small rock dams resulted in local alteration of
flows, depths, and siltation of substrate particles, negatively
impacting Brawleys Fork crayfish (Mattingly 2021, pers. comm.).
In addition to the effects of sedimentation described above, stream
impoundment also results in changes to stream depth, flow, and water
temperature that may influence Brawleys Fork crayfish resiliency.
Upstream of impoundments, stream flows are slower, stream channels are
wider, and water temperatures are higher. Downstream, flows are
decreased. Thus, crayfish assemblages are altered both upstream and
downstream of impoundments in affected stream reaches (Arnwine et al.
2006, p. 152; Hartfield 2010, pp. 25, 43; Adams 2013, pp. 1325, 1328;
Barnett and Adams 2021, pp. 2, 4). The changes associated with
impoundments degrade the habitat conditions required by Brawleys Fork
crayfish including changes from cool, clean water with moderate to fast
flow in riffles and runs to slower, warmer water with increased
sedimentation and pollutants.
Climate Change
Climate change is projected to result in changes to precipitation
and temperature in the range of Brawleys Fork crayfish in the future
(Nissenbaum 2016, pp. 6-7). We used a downscaled model of projected
climate change and changes to the frequency and severity of drought and
extreme weather events (e.g., flooding) to assess the effect of climate
change on the Brawleys Fork crayfish and its habitat (Nissenbaum 2016,
entire).
The range of Brawleys Fork crayfish experienced above-average
annual rainfall in the period 2010-2020 (Climate Explorer 2021). An
increase in the frequency, duration, and severity of rain events will
result in heavier stormwater runoff transporting larger loads of
sediment, pollutants, and nutrients into streams and will also modify
stream channels and substrate composition through flooding (Poff et al.
2002, p. 12; Lockaby et al. 2013, p. 310). These changes may negatively
influence the Brawleys Fork crayfish through the effects associated
with increased sedimentation and degraded water quality as described
above.
Since the 1970s, moderate to severe droughts in the Southeast have
increased by 12 to 14 percent during spring and summer months and this
trend is projected to continue or increase (Jones et al. 2015, p. 126;
Nissenbaum 2016, p. 6). An increase in the frequency and severity of
droughts could result in shallower or dry headwater streams due to
increased evapotranspiration if this loss is not counteracted by
rainfall and groundwater recharge (Lockaby et al. 2013, p. 310). We
expect decreased stream flow and reduced habitat availability to reduce
the availability of food, shelter, or refugia sites as well as increase
predation and competition for these resources. However, Brawleys Fork
crayfish exhibits an adaptive strategy during dry periods by burrowing
deeper into the streambed, thereby accessing subterranean water, likely
providing some resiliency to drought conditions (Simmons 2021, pers.
comm.; Williams 2021, pers. comm.). In addition to effects to flow,
warmer water temperatures, particularly in lower order streams, may
influence Brawleys Fork crayfish growth and reproduction as described
under Water Quality above. The best available information does not
indicate that the effects of climate change are currently impacting
Brawleys Fork crayfish, but increased drought conditions and the
frequency of extreme weather events, including increased frequency,
severity, and duration of precipitation, are projected to increase in
the future. Accordingly, the impact of climate change on Brawleys Fork
crayfish viability may increase in the future.
Small, Isolated Populations
The Brawleys Fork crayfish is a narrow endemic species with a
limited range and fragmented distribution. These species'
characteristics coupled with small population size (low abundance of
less than 1 crayfish/100 meters or less than 1 crayfish/person hour) in
8 of 20 streams with Brawleys Fork crayfish occurrences may exacerbate
the impact of other threats described above (Service 2023, appendix A).
Small, isolated populations may have reduced genetic diversity as a
result of inbreeding, resulting in lower levels of population
resiliency and species' representation (Frankham 1995, p. 309; Frankham
2005, pp. 132-135; Johansen 2018, p. 38; Grubb 2019, p. 29). Although
the effects of small, isolated populations may exacerbate other
threats, the best available information indicates that the threat of
small, isolated populations is not currently influencing Brawleys Fork
crayfish viability alone.
Conservation Efforts and Regulatory Mechanisms
State Protections
Brawleys Fork crayfish is listed as endangered by the State of
Tennessee and receives some protections under the provisions of the
State wildlife code (Tennessee Nongame and Endangered or Threatened
Wildlife Species Conservation Act of 1974 (Tennessee Code Annotated,
Section 70-8-101-112)), which states that it is unlawful for any person
to take, attempt to take, possess, transport, export, process, sell or
offer for sale, or ship nongame wildlife, or for any common or contract
carrier knowingly to transport or receive for shipment nongame
wildlife. Brawleys Fork crayfish is considered a Species of Greatest
Conservation Need (SGCN) in Tennessee's State Wildlife Action Plan (TN-
SWAP 2015, appendix C, p. 255). Key goals of TN-SWAP are to develop and
implement conservation strategies and prioritize funding for
conservation projects to protect SGCN species and their habitats,
although specific actions for Brawleys Fork crayfish have not been
implemented. The protections for the Brawleys Fork crayfish in
Tennessee do not prohibit the species' habitat from destruction,
modification, or alteration.
In addition to State protections, the Brawleys Fork crayfish
receives some habitat protection through the Clean Water Act of 1972
(33 U.S.C. 1251). Section 404 of the Clean Water Act requires a
Department of the Army permit to discharge dredge or fill material in
``waters of the United
[[Page 57299]]
States'' that includes most streams where Brawleys Fork crayfish
occurs. Before acquiring a permit, the requester must first show that
steps have been taken to avoid impacts to wetlands, streams, and other
aquatic resources, such as Brawleys Fork crayfish; that potential
impacts have been minimized; and that compensation will be provided for
all remaining unavoidable impacts. State-level regulation of water
quality occurs through the Tennessee Department of Environment and
Conservation (TDEC), whereby laws such as Tennessee's Water Quality
Control Act of 1977 (T.C.A. 69-3-101) are enforced. TDEC personnel also
monitor water quality in surface waters throughout the State, including
watersheds within the Brawleys Fork crayfish's range.
Cumulative Threats
Due to the complexity of freshwater ecosystems, any single factor
influencing Brawleys Fork crayfish viability often impacts the species
in a variety of ways. The interconnectedness of these influences and
their ecological impacts create synergistic and cumulative effects on
Brawleys Fork crayfish viability. For example, conversion of forested
land to agricultural use may be associated with subsequent stream
impoundment to create small reservoirs for livestock or crop
irrigation. The effects of climate change (warmer temperatures and more
frequent and/or severe drought) could lead to decreased water
availability. As a result, water withdrawal from nearby streams would
increase to support crop irrigation demands. Additionally, urbanization
can exacerbate drought conditions in streams by channeling stormwater
runoff from impervious surfaces into ditches and drains that flow into
sewer lines and/or larger-order streams, bypassing headwater streams
and decreasing the amount of water available for groundwater recharge
to headwater streams. Without adequate groundwater recharge, lower-
order streams including those with Brawleys Fork crayfish occurrence
are susceptible to going dry during severe droughts. Reduced
groundwater recharge would also impact Brawleys Fork crayfish by
decreasing the availability of subterranean water, which the species
uses as refuge during periods of drought. Climate change and the
effects of small, isolated populations may exacerbate the effects of
other threats, including cumulative threats.
We note that, by using the SSA framework to guide our analysis of
the scientific information documented in the SSA report, we have not
only analyzed individual effects on the species, but we have also
analyzed their potential cumulative effects. We incorporate the
cumulative effects into our SSA analysis when we characterize the
current and future condition of the species. To assess the current and
future condition of the species, we undertake an iterative analysis
that encompasses and incorporates the threats individually and then
accumulates and evaluates the effects of all the relevant factors that
may be influencing the species, including threats and conservation
efforts. Because the SSA framework considers not just the presence of
the factors, but to what degree they collectively influence risk to the
entire species, our assessment integrates the cumulative effects of the
factors and replaces a standalone cumulative effects analysis.
Current Condition
For the purposes of the Brawleys Fork crayfish SSA, we delineated
five analysis units (AUs) using available spatial occurrence data
(1955-2021) obtained from State agency survey reports and data
(Tennessee Wildlife Resources Agency (TWRA), TDEC), federally owned
corporation data (Tennessee Valley Authority), an interim research
report (Tennessee Tech University), peer-reviewed literature, and other
surveys (Bouchard and Bouchard 1995; Withers and McCoy 2005; Rohrbach
and Withers 2006; Giddens and Mattingly 2020). We evaluated the current
viability of Brawleys Fork crayfish using the conservation biology
principles of population resiliency, and species' redundancy and
representation.
Based on Brawleys Fork crayfish survey information and species'
needs (e.g., the availability of unembedded chert gravel and cobble
substrate within areas of fast to moderate flow, adequate water
quality, sufficient population size, and connectivity to support
reproduction and recruitment), we developed an approach using key
habitat and demographic parameters to assess population resiliency.
These included three habitat condition parameters (percent riparian
canopy cover, percent agricultural and/or urban development, and
drought) and three demographic condition parameters (extent, abundance,
and age class distribution). We developed four condition categories for
each parameter ranging from high to very low condition. Descriptions of
the parameters included in our resiliency assessment are summarized
individually below (Service 2023, pp. 38-47). We developed a scoring
framework for current resiliency that categorized each AU as either
high, moderate, low, or very low resiliency based on the overall
condition of assessed parameters.
Habitat Parameters
Riparian canopy cover (vegetation) regulates stream temperature,
reduces sedimentation, and sequesters stormwater runoff and associated
pollutants. To assess the influence of riparian vegetation on Brawleys
Fork crayfish resiliency, we determined the mean percent canopy cover
score within 30 meters (m) of the stream edge for each occupied stream
catchment. We categorized the canopy cover condition (table 2), then
averaged the catchment scores for an overall AU canopy cover score.
The extent of land use in agriculture and urban development impact
Brawleys Fork crayfish current resiliency through the effects of
increased sedimentation and water quality degradation. We assessed the
percentage of the stream catchment in agricultural and urban land cover
categories in the National Land Cover Database (NLCD 2016 Products in
Dewitz 2019, entire). We developed four categories for percent
agriculture and/or urban development and scored each stream catchment
with Brawleys Fork crayfish occurrences, then averaged the catchment
scores within each AU.
We assessed the level of drought in each AU in the Brawleys Fork
crayfish range using U.S. Drought Monitor data on the severity and
duration of extreme drought (category D3) and exceptional drought
(category D4) from 2000 to 2020 (U.S. Drought Monitor 2021). We
categorized drought experienced by Brawleys Fork crayfish AUs based on
the duration of D3 or D4 category drought conditions that occurred
during reproductive (March-June) and non-reproductive seasons (July-
February) (table 2).
The habitat parameters of riparian canopy cover and percent
agriculture and/or urban development were adjusted by -0.5 at the
catchment level to account for the greater impact of the factors on
first-, second- and third-order streams. Drought scores were not
adjusted at the AU level. The adjusted riparian canopy cover and land
cover scores and the drought parameter scores were summed for an
overall habitat condition score.
[[Page 57300]]
Table 2--Habitat Parameters and Parameter Condition Categories Used in Determining Brawleys Fork Crayfish
Resiliency
[Parameters were assessed at the catchment level and averaged over the analysis unit, except drought, which was
assessed at the analysis unit level. D3 = extreme drought; D4 = exceptional drought.]
----------------------------------------------------------------------------------------------------------------
Habitat parameter High (4) Moderate (3) Low (2) Very low (1)
----------------------------------------------------------------------------------------------------------------
Mean percent riparian canopy Greater than 75 50-75 percent..... 25-50 percent..... Less than 25
cover. percent. percent.
Percent agriculture and urban Less than 10 10-30 percent..... 30-50 percent..... Greater than 50
land use. percent. percent.
Drought (D3 or D4 2000-2020).... D3 or D4 drought D3 or D4 drought D3 or D4 drought D3 or D4 drought
never exceeds 4 exceeds 4 exceeds 4 exceeds 4
consecutive weeks consecutive weeks consecutive weeks consecutive weeks
in any season in in any non- during during
a calendar year. reproductive reproductive reproductive
season in a season in 1 season in 2 or
calendar year. calendar year. more calendar
years.
----------------------------------------------------------------------------------------------------------------
Demographic Parameters
Suitable habitat conditions and occurrence records for Brawleys
Fork crayfish are patchily distributed within streams. To assess the
species' distributional extent within occupied streams, we determined
the proportion of stream catchments with Brawleys Fork crayfish
occurrences out of the total catchments in each AU (extent) (table 3).
We categorized each extent from high to very low and adjusted the score
based on the level of connectivity between known occurrences (Service
2023, p. 44). The level of connectivity was determined using a
dendritic network complexity model.
We used abundance estimates as an indicator of population size, an
essential demographic factor influencing Brawleys Fork crayfish
resiliency. For each stream occupied by Brawleys Fork crayfish, we used
quantitative abundance estimates (reported as crayfish/100 m) if
available, or, if no quantitative estimate was available, we used
qualitative abundance estimates (reported as number of crayfish/person
hour or average catch per site visit) (Withers and McCoy 2005, pp. 20-
48; Rohrbach and Withers 2006, p. 18; Khan 2021, unpublished data). We
developed abundance estimate categories (table 3) and averaged the
occupied catchment level abundance scores to obtain an overall
abundance score for each AU.
Evidence of reproduction is an indicator of a population's fitness
and ability to sustain itself over time (viability). For Brawleys Fork
crayfish, we used evidence of reproduction (population age class
distribution) as a parameter to assess current resiliency (table 3). If
age class information was not available, we assigned each stream with
any abundance data a default score of one age class. We recognize that
this assignment of a very low age class distribution to populations
with unknown age class distribution may lead to an underestimation of
the level of reproduction in that stream. We next averaged the
population age class distribution scores for each stream within an AU
to calculate the overall score for the AU. We then summed the
(adjusted) extent, abundance, and population age class distribution
scores for each AU to obtain a total demographic score for each AU.
Finally, we summed the total AU habitat and total AU demographic
parameter scores to obtain an overall AU resiliency condition score.
Each AU was assigned an overall resiliency condition class from high to
very low based on the overall resiliency score.
Table 3--Demographic Parameters and Condition Categories Used to Assess Brawleys Fork Crayfish Current
Resiliency
----------------------------------------------------------------------------------------------------------------
Demographic parameter High (4) Moderate (3) Low (2) Very Low (1)
----------------------------------------------------------------------------------------------------------------
Extent.......................... 50 percent or 30-50 percent..... 10-30 percent..... Less than 10
greater. percent.
Abundance....................... Quantitative Quantitative Quantitative Quantitative
density greater density 10-20 density 1-9 density less than
than 20 crayfish/ crayfish/100 crayfish/100 1 crayfish/100
100 m\2\; or m\2\; or m\2\; or m\2\; or
qualitative qualitative 5-10 qualitative 1-4 qualitative less
greater than 10 crayfish/person crayfish/person than 1 crayfish/
crayfish/person hour or per site hour or per site person hour or
hour or per site visit. visit. per site visit.
visit.
Age Class Distribution.......... 3 distinct age 2 distinct age 2 distinct age 1 age class of any
classes including classes including classes, but no type.
hatchlings or hatchlings or hatchlings or
juveniles. juveniles. juveniles.
----------------------------------------------------------------------------------------------------------------
Of the five delineated Brawleys Fork crayfish AUs, two currently
exhibit moderate resiliency (Hollis Creek-East Fork Stones River and
Brawleys Fork AUs), and three exhibit low resiliency (Lower West Fork
Stones River, Bullpen Creek, and Mountain Creek AUs) (figure 1). Values
for habitat parameters were generally low, while most AUs have moderate
or high demographic parameters (Service 2023, appendix A). Three AUs
have very low extent (area of occupancy) (Lower West Fork Stones River,
Bullpen Creek, and Mountain Creek AUs), contributing to a lack of
connectivity within AUs.
BILLING CODE 4333-15-P
[[Page 57301]]
[GRAPHIC] [TIFF OMITTED] TP22AU23.050
BILLING CODE 4333-15-C
For Brawleys Fork crayfish, we assessed redundancy by mapping the
number and distribution of occupied streams across the species'
geographic range. We determined that current redundancy is sufficient
to support species viability with small populations patchily
distributed in streams with suitable habitat across the known current
range. The species occurs in a limited geographic area, although the
West Fork Stones River Lower analysis unit is spatially separated from
the other four analysis units, potentially providing protection against
some catastrophic events. The best available information does not
indicate that Brawleys Fork crayfish redundancy has decreased from
historical levels as the current known range of the species is wider
than the historical range (no range contraction).
Brawleys Fork crayfish has a known distribution in first- to third-
order streams and a fifth-order stream in two EPA level IV ecoregions.
We expect the species occurrence in a diversity of habitat conditions
across ecoregions and stream types indicates inherent adaptive capacity
that may allow adaption to changing biotic and abiotic conditions. We
determined that Brawleys Fork crayfish current representation is
moderate, and best available information indicates that the species'
representation has not declined from historical levels (no range
contraction).
Future Condition
To project the future condition of Brawleys Fork crayfish, we
developed three plausible future scenarios with varying levels of key
threats to the species. We assessed both the projected threats and the
species' likely response to those threats to determine the effect on
the resiliency, representation, and redundancy of Brawleys Fork
crayfish in 2036 and 2051. We modeled the scenarios at these timesteps
based on the average lifespan of the species (approximately 3 years),
confidence in models and projections of factors influencing the
species' viability, and certainty in predictions of the species'
response to those factors. To assess the future condition of Brawleys
Fork crayfish, we selected four key threats (urbanization, agricultural
land-use change, climate change, and water withdrawal) based on the
potential influence these factors have on Brawleys Fork crayfish
viability. We quantitatively assessed expected levels of urbanization
(SLEUTH model), land use change (cropland in the FORE-SCE model), and
climate change (air temperature in USGS National Climate Change Viewer
(NCCV 2021) model), and we qualitatively assessed the threat of future
water withdrawals (see chapter 5 of the SSA report for additional
modeling and scoring details) (Service 2023, pp. 53-57). The three
scenarios considered when predicting future conditions include: (1)
status quo with
[[Page 57302]]
lower development; (2) status quo with higher development; and (3)
increased impacts (table 4) (Service 2023, pp. 57-61).
Table 4--Data Sources and Modeled Levels of Four Key Drivers of Species Condition in Each Future Scenario for
Brawleys Fork Crayfish
----------------------------------------------------------------------------------------------------------------
Parameters
Scenario -------------------------------------------------------------------------------
Urbanization Land use change Climate change Water withdrawal
----------------------------------------------------------------------------------------------------------------
Scenario 1: Status quo/lower Greater than 50 FORE-SCE *; SRES USGS NCCV *; RCP Reduced rate of
development. percent B1 *. 4.5 *. increase in
probability of withdrawal.
urbanization in
SLEUTH *.
Scenario 2: Status quo/higher Greater than 50 FORE-SCE SRES B1.. USGS NCCV; RCP 4.5 Current rate of
development. percent increase in
probability of withdrawal.
urbanization in
SLEUTH.
Scenario 3: Increased impacts... Greater than 50 FORE-SCE; SRES A2 USGS NCCV; RCP 8.5 Increased rate of
percent *. *. increase in
probability of withdrawal.
urbanization in
SLEUTH.
----------------------------------------------------------------------------------------------------------------
* The three future scenarios include the following models or data sources: the SLEUTH model (slope, land use,
excluded area, urban area, transportation, hillside area) to predict the probability of urbanization
(Chaudhuri and Clarke 2013, pp. 1-3); the United States Geological Survey (USGS) Earth Resources Observation
and Science Center FOREcasting SCEnarios (FORE-SCE) to model projections of land use change under two
different Special Report on Emission Scenarios (SRES), similar to what is assumed under the two future climate
scenarios with varying levels of CO2 concentration known as representative concentration pathways RCP4.5 and
RCP8.5 (Nakicenovic et al. 2000, entire; Sohl et al. 2014, entire); and, the USGS National Climate Change
Viewer to model projections of future air temperatures and precipitation in the species' range.
Overall, our analysis projected declines in Brawleys Fork crayfish
future resiliency, representation, and redundancy with the magnitude of
decline increasing with increased impacts and longer timesteps (table
5). At the 15-year timestep, resiliency is projected to decline in 3
AUs under scenarios 1 and 2. At the 15-year timestep, resiliency is
projected to decline in 4 AUs under scenario 3. At the 30-year
timestep, resiliency is projected to decline in 3 AUs under scenario 1.
Resiliency is projected to decline in 4 AUs under scenario 2, and
resiliency is projected to decline in 5 AUs under scenario 3.
Two AUs are projected to maintain current low resiliency under some
scenarios: Bullpen Creek is projected to maintain low resiliency at 15
years under scenarios 1 and 2, and Mountain Creek is projected to
maintain low resiliency for 15 years under all scenarios and for 30
years under scenarios 1 and 2 (table 5). No AUs are estimated to
maintain moderate resiliency in 15 or 30 years under the three future
condition scenarios. Our analysis did not project the extirpation of
any AUs under any scenario; however, at least one AU is predicted to
exhibit very low resiliency in all scenarios, and all AUs are predicted
to exhibit very low resiliency in 2051 under scenario 3 (increased
impacts).
Redundancy is expected to decline in the future as a function of
loss of resiliency in AUs, although no AUs are projected to be
extirpated and the distribution of the species across the range is
projected to remain at the current level. Representation is expected to
decline slightly from current levels in both future timesteps as
populations (not AUs) are extirpated and habitat fragmentation reduces
inherent adaptive capacity in Brawleys Fork crayfish due to decreases
in connectivity and gene flow.
Table 5--Future Resiliency of Brawleys Fork Crayfish Analysis Units Under Three Plausible Future Scenarios at 15- and 30-Year Timesteps
--------------------------------------------------------------------------------------------------------------------------------------------------------
Current Scenario 1 Scenario 2 Scenario 3
Analysis unit (HUC 12*) resiliency --------------------------------------------------------------------------------------------------------
class 2036 2051 2036 2051 2036 2051
--------------------------------------------------------------------------------------------------------------------------------------------------------
Hollis Creek-East Fork Stones Moderate........ Low............. Low............. Low............. Low............ Low............ Very Low.
River.
Brawleys Fork................ Moderate........ Low............. Low............. Low............. Low............ Low............ Very Low.
Lower West Fork Stones River. Low............. Very Low........ Very Low........ Very Low........ Very Low....... Very Low....... Very Low.
Bullpen Creek................ Low............. Low............. Low............. Low............. Very Low....... Very Low....... Very Low.
Mountain Creek............... Low............. Low............. Low............. Low............. Low............ Low............ Very Low.
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Hydrologic Unit Code.
Determination of Brawleys Fork Crayfish Status
Section 4 of the Act (16 U.S.C. 1533) and its implementing
regulations (50 CFR part 424) set forth the procedures for determining
whether a species meets the definition of an endangered species or a
threatened species. The Act defines an ``endangered species'' as a
species in danger of extinction throughout all or a significant portion
of its range and a ``threatened species'' as a species likely to become
an endangered species within the foreseeable future throughout all or a
significant portion of its range. The Act requires that we determine
whether a species meets the definition of an endangered species or a
threatened species because of any of the following factors: (A) The
present or threatened destruction, modification, or curtailment of its
habitat or range; (B) overutilization for commercial, recreational,
scientific, or educational purposes; (C) disease or predation; (D) the
inadequacy of existing regulatory mechanisms; or (E) other natural or
manmade factors affecting its continued existence.
Status Throughout All of Its Range
After evaluating threats to the species and assessing the
cumulative effect of
[[Page 57303]]
the threats under the Act's section 4(a)(1) factors, we determined the
following threats are acting as the primary drivers of Brawleys Fork
crayfish viability and are ongoing: habitat loss and degradation
(Factor A) due to sedimentation and water quality degradation from
sources including agricultural practices, horticultural practices, and
urbanization; and instream modification including impoundments, gravel
dredging, and channel alteration. The impacts of these threats may be
further exacerbated by the effects of small, isolated populations
(Factor E) and the future effects of climate change (Factor E).
Brawleys Fork crayfish is known to occur in 20 streams in 5 central
Tennessee HUC12 watersheds and is distributed across the current range
of the species, which represents an expansion of the known historical
range. Available information does not indicate population-level
extirpations or evidence of range contraction for the species. Of the
five delineated analysis units (HUC12 watersheds), two currently
exhibit moderate resiliency and three low resiliency. Although Brawleys
Fork crayfish is impacted by past and ongoing threats of sedimentation,
water quality degradation, and instream modifications, the species
currently exhibits sufficient population-level resiliency and species-
level representation and redundancy to withstand stochastic and
catastrophic events and has inherent capacity to adapt to environmental
change. Accordingly, we conclude that the Brawleys Fork crayfish is not
in danger of extinction throughout its range.
Upon determining that the Brawleys Fork crayfish is not in danger
of extinction throughout its range, we consider whether it is likely to
become an endangered species in the foreseeable future throughout its
range. Our analysis of the species' future condition under future
scenarios at two timesteps encompasses the best available information
for future projections of modeled parameters under a range of plausible
threat levels. We selected these time steps based on the Brawleys Fork
crayfish's lifespan of approximately 3 years and the reliability of the
data and models used in the future threat projections and analysis. We
determined we can reliably predict both the future threats and the
species' responses to those threats within a 30-year timeframe (i.e.,
the foreseeable future). However, after that time period, we have less
confidence in projections.
We found that impacts from habitat loss and degradation present the
most substantial threat to the Brawleys Fork crayfish viability. As
described above, the threats currently acting on the species include
sedimentation, water quality degradation, and instream modifications,
all of which may be exacerbated by the effects of climate change and
small, isolated populations. In the foreseeable future, we anticipate
that threats associated with urbanization, land use change, and climate
change will continue to increase in magnitude and will have the
greatest influence on species' viability. We also considered the
effects of instream impoundments, water withdrawals, and small,
isolated populations, including cumulative effects. The best available
information indicates that the threats and stressors currently acting
on the Brawleys Fork crayfish are expected to continue into the
foreseeable future, some of which (e.g., urbanization, land use change
(agriculture and horticulture), and climate change) are reasonably
expected to worsen over time.
Our assessment of plausible future scenarios projects declines in
resiliency, representation, and redundancy in the future as a result of
ongoing threats of habitat loss and degradation. However, no
extirpations of AUs are projected. In our future condition analysis, no
moderate resiliency populations are projected and all 5 Brawleys Fork
crayfish AUs are projected to exhibit low or very low resiliency in the
three plausible future scenarios. Representation and redundancy are
also projected to be reduced from current levels in the future as a
result of declining resiliency, extirpations of individual populations
within AUs, and loss of connectivity. Thus, after assessing the best
available information, we conclude that the Brawleys Fork crayfish is
not currently in danger of extinction but is likely to become in danger
of extinction within the foreseeable future throughout all of its
range.
Status Throughout a Significant Portion of Its Range
Under the Act and our implementing regulations, a species may
warrant listing if it is in danger of extinction or likely to become so
in the foreseeable future throughout all or a significant portion of
its range. The court in Center for Biological Diversity v. Everson, 435
F. Supp. 3d 69 (D.D.C. 2020) (Everson), vacated the provision of the
Final Policy on Interpretation of the Phrase ``Significant Portion of
Its Range'' in the Endangered Species Act's Definitions of ``Endangered
Species'' and ``Threatened Species'' (hereafter ``Final Policy''; 79 FR
37578, July 1, 2014) that provided if the Services determine that a
species is threatened throughout all of its range, the Services will
not analyze whether the species is endangered in a significant portion
of its range.
Therefore, we proceed to evaluating whether the species is
endangered in a significant portion of its range--that is, whether
there is any portion of the species' range for which both (1) the
portion is significant and (2) the species is in danger of extinction
in that portion. Depending on the case, it might be more efficient for
us to address the ``significance'' question or the ``status'' question
first. We can choose to address either question first. Regardless of
which question we address first, if we reach a negative answer with
respect to the first question that we address, we do not need to
evaluate the other question for that portion of the species' range.
Following the court's holding in Everson, we now consider whether
there are any significant portions of the species' range where the
species is in danger of extinction now (i.e., endangered). In
undertaking this analysis for Brawleys Fork crayfish, we choose to
address the status question first--we consider information pertaining
to the geographic distribution of both the species and the threats that
the species faces to identify portions of the range where the species
may be endangered.
We evaluated the range of the Brawleys Fork crayfish to determine
if the species is in danger of extinction now in any portion of its
range. The range of a species can theoretically be divided into
portions in an infinite number of ways. We focused our analysis on
portions of the species' range that may meet the definition of an
endangered species. For Brawleys Fork crayfish, we considered whether
the threats or their effects on the species are greater in any
biologically meaningful portion of the species' range than in other
portions such that the species is in danger of extinction now in that
portion.
We examined the following threats: sedimentation and water quality
degradation from sources including agricultural/horticultural practices
and urbanization; and instream modification including impoundments,
gravel dredging, and channel alteration, including cumulative effects.
We also considered the effects of climate change, small and isolated
populations, and conservation efforts and regulatory mechanisms. These
stressors are present rangewide, and threats influence Brawleys Fork
crayfish viability rangewide, but the sources are more
[[Page 57304]]
concentrated in some areas and may affect some individuals and
populations to a greater extent (e.g., increased urbanization in the
West Fork Stones watershed). We identified three AUs where the impact
of these threats may have a more pronounced effect such that the
species may have a different status in those AUs than the remainder of
the range. The portions we considered are the geographic areas
described as the West Fork Stones River, Bullpen Creek, and Mountain
Creek AUs (HUC 12 watersheds) in the SSA report (Service 2023).
As described in Status Throughout All of Its Range, the threats of
sedimentation, water quality degradation, and instream modifications
have impacted the Brawleys Fork crayfish's viability through habitat
loss and degradation. Although threats are similar throughout the range
of the species, the threats associated with increased urbanization and
development are greater in the West Fork Stones River unit. In
addition, this unit does not have connectivity to any other watershed
with Brawleys Fork crayfish occurrences and is geographically distanced
from other occupied streams. The West Fork Stones River unit currently
exhibits low resiliency, and resiliency is projected to decline in this
unit under our future condition scenarios. Given the current and
ongoing threats, including urbanization, and the species' current and
future condition within this unit, we have identified the West Fork
Stones River AU as an area that may have a different status than the
remainder of the range.
We also considered the Bullpen Creek and Mountain Creek AUs as
areas that may require further analysis. The best available historical
information indicated that the Brawleys Fork crayfish has occurred and
continues to occur with low abundance at limited sites within Bullpen
Creek and Mountain Creek. In addition, although threats are similar
throughout the range of the species, the species' response to threats
may be more pronounced in the Bullpen Creek and Mountain Creek AUs. Due
to low current resiliency, threats are having a greater impact in the
Bullpen Creek and Mountain Creek AUs. The two AUs exhibit low current
resiliency driven primarily by low extent of occupancy (few sites known
within the streams), and resiliency is projected to decline in the two
AUs in future scenarios. Given the current and ongoing threats and the
species' current and future condition within this unit, we have
identified the Bullpen Creek and Mountain Creek AUs as areas that may
have a different status than the remainder of the range.
We then proceeded to the significance question, asking whether
these portions of the range (West Fork Stones River, Bullpen Creek, or
Mountain Creek AU) are significant. The Service's most recent
definition of ``significant'' within agency policy guidance has been
invalidated by court order (see Desert Survivors v. U.S. Department of
the Interior, 321 F. Supp. 3d 1011, 1070-74 (N.D. Cal. 2018)). In
undertaking this analysis for the range of the Brawleys Fork crayfish,
we considered whether any of the three portions of the range identified
are significant based on the biological importance to the overall
viability of the Brawleys Fork crayfish. Therefore, for the purposes of
this analysis, when considering whether this portion is significant, we
considered whether the portion may (1) occur in a unique habitat or
ecoregion for the species, (2) contain high-quality or high-value
habitat relative to the remaining portions of the range, for the
species' continued viability in light of the existing threats, (3)
contain habitat that is essential to a specific life-history function
for the species and that is not found in the other portions of the
range, or (4) contain a large geographic portion of the suitable
habitat relative to the remaining portions of the range.
Although every unit provides some contribution to a species'
viability, the West Fork Stones River AU comprises a small geographic
portion of the range with low-quality habitat. This unit may offer some
value to representation as the West Fork Stones River is the only
fifth-order stream with Brawleys Fork crayfish occurrences and provides
somewhat different habitat conditions (e.g., a larger, perennial stream
that does not go dry seasonally) and may offer a refugia in extreme
drought. However, the habitat does not support high abundance or high-
quality habitat. Brawleys Fork crayfish occurrences are known only from
the Lower West Fork Stones River in this AU with a low extent of
occupancy compared to the two moderate-resiliency units (4.3 percent of
stream catchments in the unit have occurrence records) (Service 2023,
appendix A). Overall, there is little evidence to suggest that the
geographical area of the West Fork Stones River unit has higher quality
or higher value habitat or provides any unique resource to the species
life history. Thus, based on the best available information, we find
that this portion of the range is not biologically significant in terms
of the habitat considerations discussed above.
Although every unit provides some contribution to a species'
viability, the Bullpen Creek and Mountain Creek AUs comprise a small
percentage of the known Brawleys Fork crayfish sites and abundance. The
habitat in the Bullpen Creek and Mountain Creek AUs does not support
high abundance or represent high-quality habitat. Brawleys Fork
crayfish occurrences are known from only one site in each AU resulting
in a low extent of occupancy compared to the two moderate-resiliency
units. In Bullpen Creek AU, 1.4 percent of stream catchments in the
unit have known occurrences, and, in Mountain Creek AU, 3.8 percent of
stream catchments have known occurrences (Service 2023, appendix A).
Overall, there is little evidence to suggest that the geographical
areas of the Bullpen Creek or Mountain Creek AU have higher quality or
higher value habitat or provide any unique resource to the species life
history. Thus, based on the best available information, we find that
the portions of the range represented by the Bullpen Creek and Mountain
Creek AU are not biologically significant in terms of the habitat
considerations discussed above.
In addition, we considered the three AUs (West Fork Stones River,
Bullpen Creek, and Mountain Creek) as one portion that may have a
different status in order to assess the potential significance as one
geographic area. In total, the three units represent approximately 9.5
percent of occupied catchments in the species' range. The units do not
provide high-value or unique habitat for the species, as described
above. Thus, based on the best available information, we find that the
portion of the range represented by the West Fork Stones River, Bullpen
Creek, and Mountain Creek AUs is not biologically significant in terms
of the habitat considerations and occupancy described above.
We found no biologically meaningful portion of the Brawleys Fork
crayfish's range where the species may have a different status than the
species rangewide and the portion is significant. Therefore, no portion
of the species' range provides a basis for determining that the species
is in danger of extinction in a significant portion of its range, and
we determine that the species is likely to become in danger of
extinction within the foreseeable future throughout all of its range.
This does not conflict with the courts' holdings in Desert Survivors v.
U.S. Department of the Interior, 321 F. Supp. 3d 1011, 1070-74 (N.D.
Cal. 2018) and Center for Biological Diversity v. Jewell, 248 F. Supp.
3d 946, 959 (D. Ariz. 2017)
[[Page 57305]]
because, in reaching this conclusion, we did not apply the aspects of
the Final Policy, including the definition of ``significant'' that
those court decisions held to be invalid.
Determination of Status
Our review of the best available scientific and commercial
information indicates that the Brawleys Fork crayfish meets the
definition of a threatened species. Therefore, we propose to list the
Brawleys Fork crayfish as a threatened species in accordance with
sections 3(20) and 4(a)(1) of the Act.
Available Conservation Measures
Conservation measures provided to species listed as endangered or
threatened species under the Act include recognition as a listed
species, planning and implementation of recovery actions, requirements
for Federal protection, and prohibitions against certain practices.
Recognition through listing results in public awareness, and
conservation by Federal, State, Tribal, and local agencies, private
organizations, and individuals. The Act encourages cooperation with the
States and other countries and calls for recovery actions to be carried
out for listed species. The protection required by Federal agencies,
including the Service, and the prohibitions against certain activities
are discussed, in part, below.
The primary purpose of the Act is the conservation of endangered
and threatened species and the ecosystems upon which they depend. The
ultimate goal of such conservation efforts is the recovery of these
listed species, so that they no longer need the protective measures of
the Act. Section 4(f) of the Act calls for the Service to develop and
implement recovery plans for the conservation of endangered and
threatened species. The goal of this process is to restore listed
species to a point where they are secure, self-sustaining, and
functioning components of their ecosystems.
The recovery planning process begins with development of a recovery
outline made available to the public soon after a final listing
determination. The recovery outline guides the immediate implementation
of urgent recovery actions while a recovery plan is being developed.
Recovery teams (composed of species experts, Federal and State
agencies, nongovernmental organizations, and stakeholders) may be
established to develop and implement recovery plans. The recovery
planning process involves the identification of actions that are
necessary to halt and reverse the species' decline by addressing the
threats to its survival and recovery. The recovery plan identifies
recovery criteria for review of when a species may be ready for
reclassification from endangered to threatened (``downlisting'') or
removal from protected status (``delisting''), and methods for
monitoring recovery progress. Recovery plans also establish a framework
for agencies to coordinate their recovery efforts and provide estimates
of the cost of implementing recovery tasks. Revisions of the plan may
be done to address continuing or new threats to the species, as new
substantive information becomes available. The recovery outline, draft
recovery plan, final recovery plan, and any revisions will be available
on our website as they are completed (<a href="https://www.fws.gov/program/recovery/recovery-plans">https://www.fws.gov/program/recovery/recovery-plans</a>), or from our Tennessee Ecological Services
Field Office (see FOR FURTHER INFORMATION CONTACT).
Implementation of recovery actions generally requires the
participation of a broad range of partners, including other Federal
agencies, States, Tribes, nongovernmental organizations, businesses,
and private landowners. Examples of recovery actions include habitat
restoration (e.g., restoration of native vegetation), research, captive
propagation and reintroduction, and outreach and education. The
recovery of many listed species cannot be accomplished solely on
Federal lands because their range may occur primarily or solely on non-
Federal lands. To achieve recovery of these species requires
cooperative conservation efforts on private, State, and Tribal lands.
If this species is listed, funding for recovery actions will be
available from a variety of sources, including Federal budgets, State
programs, and cost-share grants for non-Federal landowners, the
academic community, and nongovernmental organizations. In addition,
pursuant to section 6 of the Act, the State of Tennessee would be
eligible for Federal funds to implement management actions that promote
the protection or recovery of the Brawleys Fork crayfish. Information
on our grant programs that are available to aid species recovery can be
found at: <a href="https://www.fws.gov/service/financial-assistance">https://www.fws.gov/service/financial-assistance</a>.
Although the Brawleys Fork crayfish is only proposed for listing
under the Act at this time, please let us know if you are interested in
participating in recovery efforts for this species. Additionally, we
invite you to submit any new information on this species whenever it
becomes available and any information you may have for recovery
planning purposes (see FOR FURTHER INFORMATION CONTACT).
Section 7 of the Act pertains to interagency cooperation and
mandates all Federal action agencies to use their existing authorities
to further the conservation purposes of the Act and to ensure that
their actions are not likely to jeopardize the continued existence of
listed species or adversely modify critical habitat. Regulations
implementing this interagency cooperation provision of the Act are
codified at 50 CFR part 402.
Section 7(a)(2) states that each Federal action agency shall, in
consultation with the Secretary, ensure that any action they authorize,
fund, or carry out is not likely to jeopardize the continued existence
of a listed species or result in the destruction or adverse
modification of designated critical habitat. Each Federal agency shall
review its action at the earliest possible time to determine whether it
may affect listed species or critical habitat. If a determination is
made that the action may affect listed species or critical habitat,
formal consultation is required (50 CFR 402.14(a)), unless the Service
concurs in writing that the action is not likely to adversely affect
listed species or critical habitat. At the end of a formal
consultation, the Service issues a biological opinion, containing its
determination of whether the Federal action is likely to result in
jeopardy or adverse modification.
In contrast, section 7(a)(4) of the Act requires Federal agencies
to confer with the Service on any action that is likely to jeopardize
the continued existence of a species proposed to be listed under the
Act or result in destruction or adverse modification of critical
habitat proposed to be designated for such species. Although the
conference procedures are required only when an action is likely to
result in jeopardy or adverse modification, action agencies may
voluntarily confer with the Service on actions that may affect species
proposed for listing or critical habitat proposed to be designated. In
the event that the subject species is listed or the relevant critical
habitat is designated, a conference opinion may be adopted as a
biological opinion and serve as compliance with section 7(a)(2).
Examples of discretionary actions for the Brawleys Fork crayfish
that may be subject to the conference and consultation procedures under
section 7 are land management or other landscape-altering activities on
Federal lands administered by the U.S. Army Corps of Engineers (USACE)
as well as actions on State, Tribal, local, or private lands that
require a Federal permit
[[Page 57306]]
(such as a permit from USACE 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. Federal agencies should coordinate with the
local Service Field Office (see FOR FURTHER INFORMATION CONTACT) with
any specific questions on section 7 consultation and conference
requirements.
It is our policy, as published in the Federal Register on July 1,
1994 (59 FR 34272), to identify to the extent known at the time a
species is listed, specific activities that will not be considered
likely to result in a violation of section 9 of the Act. To the extent
possible, activities that will be considered likely to result in a
violation will also be identified in as specific a manner as possible.
The intent of this policy is to increase public awareness of the effect
of a proposed listing on proposed and ongoing activities within the
range of the species proposed for listing. Although most of the
prohibitions in section 9 of the Act apply to endangered species,
sections 9(a)(1)(G) and 9(a)(2)(E) prohibit the violation of any
regulation under section 4(d) pertaining to any threatened species of
fish or wildlife, or threatened species of plant, respectively. Section
4(d) of the Act directs the Secretary to promulgate protective
regulations that are necessary and advisable for the conservation of
threatened species. As a result, we interpret our policy to mean that,
when we list a species as a threatened species, to the extent possible,
we identify activities that will or will not be considered likely to
result in violation of the protective regulations under section 4(d)
for that species.
At this time, we are unable to identify specific activities that
will or will not be considered likely to result in violation of section
9 of the Act beyond what is already clear from the descriptions of
prohibitions and exceptions established by protective regulation under
section 4(d) of the Act.
Questions regarding whether specific activities would constitute
violation of section 9 of the Act should be directed to the Tennessee
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).
II. Proposed Rule Issued Under Section 4(d) of the Act
Background
Section 4(d) of the Act contains two sentences. The first sentence
states that the Secretary shall issue such regulations as she deems
necessary and advisable to provide for the conservation of species
listed as threatened species. The U.S. Supreme Court has noted that
statutory language similar to the language in section 4(d) of the Act
authorizing the Secretary to take action that she ``deems necessary and
advisable'' affords a large degree of deference to the agency (see
Webster v. Doe, 486 U.S. 592, 600 (1988)). Conservation is defined in
the Act to mean the use of all methods and procedures which are
necessary to bring any endangered species or threatened species to the
point at which the measures provided pursuant to the Act are no longer
necessary. Additionally, the second sentence of section 4(d) of the Act
states that the Secretary may by regulation prohibit with respect to
any threatened species any act prohibited under section 9(a)(1), in the
case of fish or wildlife, or section 9(a)(2), in the case of plants.
Thus, the combination of the two sentences of section 4(d) provides the
Secretary with wide latitude of discretion to select and promulgate
appropriate regulations tailored to the specific conservation needs of
the threatened species. The second sentence grants particularly broad
discretion to the Service when adopting one or more of the prohibitions
under section 9.
The courts have recognized the extent of the Secretary's discretion
under this standard to develop rules that are appropriate for the
conservation of a species. For example, courts have upheld, as a valid
exercise of agency authority, rules developed under section 4(d) that
included limited prohibitions against takings (see Alsea Valley
Alliance v. Lautenbacher, 2007 WL 2344927 (D. Or. 2007); Washington
Environmental Council v. National Marine Fisheries Service, 2002 WL
511479 (W.D. Wash. 2002)). Courts have also upheld 4(d) rules that do
not address all of the threats a species faces (see State of Louisiana
v. Verity, 853 F.2d 322 (5th Cir. 1988)). As noted in the legislative
history when the Act was initially enacted, ``once an animal is on the
threatened list, the Secretary has an almost infinite number of options
available to [her] with regard to the permitted activities for those
species. [She] may, for example, permit taking, but not importation of
such species, or [she] may choose to forbid both taking and importation
but allow the transportation of such species'' (H.R. Rep. No. 412, 93rd
Cong., 1st Sess. 1973).
The provisions of this proposed 4(d) rule would promote
conservation of the Brawleys Fork crayfish by encouraging management of
the habitat for the species in ways that facilitate conservation for
the species. The provisions of this proposed rule are one of many tools
that we would use to promote the conservation of the Brawleys Fork
crayfish. This proposed 4(d) rule would apply only if and when we make
final the listing of the Brawleys Fork crayfish as a threatened
species.
As mentioned previously in Available Conservation Measures, 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 that 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. 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.
These requirements are the same for a threatened species with a
species-specific 4(d) rule. For example, a Federal agency's
determination that an action is ``not likely to adversely affect'' a
threatened species will require the Service's written concurrence.
Similarly, a Federal agency's determination that an action is ``likely
to adversely affect'' a threatened species will require formal
consultation and the formulation of a biological opinion.
Provisions of the Proposed 4(d) Rule
Exercising the Secretary's authority under section 4(d) of the Act,
we have developed a proposed rule that is designed to address the
Brawleys Fork crayfish's conservation needs. As discussed previously in
Summary of Biological Status and Threats, we have concluded that the
Brawleys Fork crayfish is likely to become in danger of extinction
within the foreseeable future primarily due to habitat loss and
degradation due to sedimentation and water quality degradation from
sources including agricultural practices, horticultural practices, and
[[Page 57307]]
urbanization; and instream modification including impoundments, gravel
dredging, and channel alteration. Each of the threats influencing
Brawleys Fork crayfish viability may be further exacerbated by the
effects of small, isolated populations and the future effects of
climate change.
As stated previously, section 4(d) requires the Secretary to issue
such regulations as she deems necessary and advisable to provide for
the conservation of each threatened species and authorizes the
Secretary to include among those protective regulations any of the
prohibitions that section 9(a)(1) of the Act prescribes for endangered
species. We find that, if finalized, the protections, prohibitions, and
exceptions in this proposed rule as a whole satisfy the requirement in
section 4(d) of the Act to issue regulations deemed necessary and
advisable to provide for the conservation of the Brawleys Fork
crayfish.
The protective regulations we are proposing for Brawleys Fork
crayfish incorporate prohibitions from section 9(a)(1) to address the
threats to the species. Section 9(a)(1) prohibits the following
activities for endangered wildlife: importing or exporting; take;
possession and other acts with unlawfully taken specimens; delivering,
receiving, carrying, transporting, or shipping in interstate or foreign
commerce in the course of commercial activity; or selling or offering
for sale in interstate or foreign commerce. This protective regulation
includes all of these prohibitions because the Brawleys Fork crayfish
is at risk of extinction in the foreseeable future and putting these
prohibitions in place will help to prevent further declines, preserve
the species' remaining populations, and decrease synergistic, negative
effects from other ongoing or future threats.
In particular, this proposed 4(d) rule would provide for the
conservation of the Brawleys Fork crayfish by prohibiting the following
activities, unless they fall within specific exceptions or are
otherwise authorized or permitted: importing or exporting; take;
possession and other acts with unlawfully taken specimens; delivering,
receiving, carrying, transporting, or shipping in interstate or foreign
commerce in the course of commercial activity; or selling or offering
for sale in interstate or foreign commerce.
Under the Act, ``take'' means to harass, harm, pursue, hunt, shoot,
wound, kill, trap, capture, or collect, or to attempt to engage in any
such conduct. Some of these provisions have been further defined in
regulations at 50 CFR 17.3. Take can result knowingly or otherwise, by
direct and indirect impacts, intentionally or incidentally. Regulating
take would help preserve the species' remaining populations, slow their
rate of decline, and decrease synergistic, negative effects from other
ongoing or future threats. Therefore, we propose to prohibit take of
the Brawleys Fork crayfish, except for take resulting from those
actions and activities specifically excepted by the 4(d) rule.
Exceptions to the prohibition on take would include all the general
exceptions to the prohibition against take of endangered wildlife, as
set forth in 50 CFR 17.21 and additional exceptions, as described
below.
The proposed 4(d) rule would also provide for the conservation of
the species by allowing exceptions that incentivize conservation
actions or that, while they may have some minimal level of take of the
Brawleys Fork crayfish, are not expected to rise to the level that
would have a negative impact (i.e., would have only de minimis impacts)
on the species' conservation. The proposed exceptions to these
prohibitions include channel restoration and bank stabilization
projects, migration barrier removal projects, and transportation
projects that provide fish passage (described below) and are expected
to have negligible impacts to the Brawleys Fork crayfish and its
habitat.
The first exception is for incidental take resulting from channel
restoration projects for creation of natural, physically stable,
ecologically functioning streams (or stream and wetland systems). These
projects can be accomplished using a variety of methods, but the
desired outcome is a natural channel with low shear stress (force of
water moving against the channel); bank heights that enable
reconnection to the floodplain; a reconnection of surface and
groundwater systems, resulting in perennial flows in the channel;
riffles and pools composed of existing soil, rock, and wood instead of
large imported materials; low compaction of soils within adjacent
riparian areas; and inclusion of riparian wetlands.
The second exception is for incidental take resulting from bank
stabilization projects that use bioengineering methods to replace
preexisting, bare, eroding stream banks with vegetated, stable stream
banks, thereby reducing bank erosion and instream sedimentation and
improving habitat conditions for the species. This exception includes a
requirement that the bank stabilization bioengineering use methods such
as native species live stakes (live, vegetative cuttings inserted or
tamped into the ground in a manner that allows the stake to take root
and grow), native species live fascines (live branch cuttings, usually
willows, bound together into long, cigar-shaped bundles), or native
species brush layering (cuttings or branches of easily rooted tree
species layered between successive lifts of soil fill). This exception
also includes a requirement to use native species vegetation including
woody and herbaceous species appropriate for the region and habitat
conditions. This exception does not apply if the bank stabilization
includes the sole use of quarried rock (riprap) or the use of rock
baskets or gabion structures.
The third exception is for incidental take resulting from bridge
and culvert replacement/removal projects or low head dam removal
projects that remove migration barriers or generally allow for improved
upstream and downstream movements of Brawleys Fork crayfish while
maintaining normal stream flows, preventing bed and bank erosion, and
improving habitat conditions for the species.
The fourth exception is for incidental take resulting from
transportation projects that provide for fish passage at stream
crossings, thereby providing for connectivity and dispersal for the
Brawleys Fork crayfish.
Despite these prohibitions regarding threatened species, we may
under certain circumstances issue permits to carry out one or more
otherwise-prohibited activities, including those described above. The
regulations that govern permits for threatened wildlife state that the
Director may issue a permit authorizing any activity otherwise
prohibited with regard to threatened species. These include permits
issued for the following purposes: for scientific purposes, to enhance
propagation or survival, for economic hardship, for zoological
exhibition, for educational purposes, for incidental taking, or for
special purposes consistent with the purposes of the Act (50 CFR
17.32). The statute also contains certain exemptions from the
prohibitions, which are found in sections 9 and 10 of the Act.
We recognize the special and unique relationship with our State
natural resource agency partners in contributing to conservation of
listed species. State agencies often possess scientific data and
valuable expertise on the status and distribution of endangered,
threatened, and candidate species of wildlife and plants. State
agencies, because of their authorities and their close working
relationships with local governments and landowners, are in a unique
[[Page 57308]]
position to assist us in implementing all aspects of the Act. In this
regard, section 6 of the Act provides that we must cooperate to the
maximum extent practicable with the States in carrying out programs
authorized by the Act. Therefore, any qualified employee or agent of a
State conservation agency that is a party to a cooperative agreement
with us in accordance with section 6(c) of the Act, who is designated
by his or her agency for such purposes, would be able to conduct
activities designed to conserve Brawleys Fork crayfish that may result
in otherwise prohibited take without additional authorization.
Nothing in this proposed 4(d) rule would change in any way the
recovery planning provisions of section 4(f) of the Act, the
consultation requirements under section 7 of the Act, or our ability to
enter into partnerships for the management and protection of the
Brawleys Fork crayfish. However, interagency cooperation may be further
streamlined through planned programmatic consultations for the species
between us and other Federal agencies, where appropriate. We ask the
public, particularly State agencies and other interested stakeholders
that may be affected by the proposed 4(d) rule, to provide comments and
suggestions regarding additional guidance and methods that we could
provide or use, respectively, to streamline the implementation of this
proposed 4(d) rule (see Information Requested, above).
III. Critical Habitat
Background
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Our regulations at 50 CFR 424.02 define the geographical area
occupied by the species as an area that may generally be delineated
around species' occurrences, as determined by the Secretary (i.e.,
range). Such areas may include those areas used throughout all or part
of the species' life cycle, even if not used on a regular basis (e.g.,
migratory corridors, seasonal habitats, and habitats used periodically,
but not solely by vagrant individuals).
Conservation, as defined under section 3 of the Act, means to use
and the use of all methods and procedures that are necessary to bring
an endangered or threatened species to the point at which the measures
provided pursuant to the Act are no longer necessary. Such methods and
procedures include, but are not limited to, all activities associated
with scientific resources management such as research, census, law
enforcement, habitat acquisition and maintenance, propagation, live
trapping, and transplantation, and, in the extraordinary case where
population pressures within a given ecosystem cannot be otherwise
relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the requirement that Federal agencies ensure, in consultation
with the Service, that any action they authorize, fund, or carry out is
not likely to result in the destruction or adverse modification of
critical habitat. The designation of critical habitat does not affect
land ownership or establish a refuge, wilderness, reserve, preserve, or
other conservation area. Such designation also does not allow the
government or public to access private lands. Such designation does not
require implementation of restoration, recovery, or enhancement
measures by non-Federal landowners. Where a landowner requests Federal
agency funding or authorization for an action that may affect a listed
species or critical habitat, the Federal agency would be required to
consult with the Service under section 7(a)(2) of the Act. However,
even if the Service were to conclude that the proposed activity would
likely result in destruction or adverse modification of the critical
habitat, the Federal action agency and the landowner are not required
to abandon the proposed activity, or to restore or recover the species;
instead, they must implement ``reasonable and prudent alternatives'' to
avoid destruction or adverse modification of critical habitat.
Under the first prong of the Act's definition of critical habitat,
areas within the geographical area occupied by the species at the time
it was listed are included in a critical habitat designation if they
contain physical or biological features (1) which are essential to the
conservation of the species and (2) which may require special
management considerations or protection. For these areas, critical
habitat designations identify, to the extent known using the best
scientific data available, those physical or biological features that
are essential to the conservation of the species (such as space, food,
cover, and protected habitat).
Under the second prong of the Act's definition of critical habitat,
we can designate critical habitat in areas outside the geographical
area occupied by the species at the time it is listed, upon a
determination that such areas are essential for the conservation of the
species.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific data available. Further, our Policy on
Information Standards Under the Endangered Species Act (published in
the Federal Register on July 1, 1994 (59 FR 34271)), the Information
Quality Act (section 515 of the Treasury and General Government
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)),
and our associated Information Quality Guidelines provide criteria,
establish procedures, and provide guidance to ensure that our decisions
are based on the best scientific data available. They require our
biologists, to the extent consistent with the Act and with the use of
the best scientific data available, to use primary and original sources
of information as the basis for recommendations to designate critical
habitat.
When we are determining which areas should be designated as
critical habitat, our primary source of information is generally the
information from the SSA report and information developed during the
listing process for the species. Additional information sources may
include any generalized conservation strategy, criteria, or outline
that may have been developed for the species; the recovery plan for the
species; articles in peer-reviewed journals; conservation plans
developed by States and counties; scientific status surveys and
studies; biological assessments; other unpublished materials; or
experts' opinions or personal knowledge.
Habitat is dynamic, and species may move from one area to another
over time. We recognize that critical habitat designated at a
particular point in time may not include all of the habitat areas that
we may later determine are necessary for the recovery of the species.
For these reasons, a critical habitat designation does not signal that
habitat outside the designated area is unimportant or may not be needed
for recovery of the species. Areas that are important to the
conservation of the
[[Page 57309]]
species, both inside and outside the critical habitat designation, will
continue to be subject to: (1) Conservation actions implemented under
section 7(a)(1) of the Act; (2) regulatory protections afforded by the
requirement in section 7(a)(2) of the Act for Federal agencies to
ensure their actions are not likely to jeopardize the continued
existence of any endangered or threatened species; and (3) the
prohibitions found in the 4(d) rule. Federally funded or permitted
projects affecting listed species outside their designated critical
habitat areas may still result in jeopardy findings in some cases.
These protections and conservation tools will continue to contribute to
recovery of the species. Similarly, critical habitat designations made
on the basis of the best available information at the time of
designation will not control the direction and substance of future
recovery plans, habitat conservation plans (HCPs), or other species
conservation planning efforts if new information available at the time
of those planning efforts calls for a different outcome.
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
which may require special management considerations or protection. The
regulations at 50 CFR 424.02 define ``physical or biological features
essential to the conservation of the species'' as the features that
occur in specific areas and that are essential to support the life-
history needs of the species, including, but not limited to, water
characteristics, soil type, geological features, sites, prey,
vegetation, symbiotic species, or other features.
A feature may be a single habitat characteristic or a more complex
combination of habitat characteristics. Features may include habitat
characteristics that support ephemeral or dynamic habitat conditions.
Features may also be expressed in terms relating to principles of
conservation biology, such as patch size, distribution distances, and
connectivity. For example, physical features essential to the
conservation of the species might include gravel of a particular size
required for spawning, alkaline soil for seed germination, protective
cover for migration, or susceptibility to flooding or fire that
maintains necessary early-successional habitat characteristics.
Biological features might include prey species, forage grasses,
specific kinds or ages of trees for roosting or nesting, symbiotic
fungi, or absence of a particular level of nonnative species consistent
with conservation needs of the listed species. The features may also be
combinations of habitat characteristics and may encompass the
relationship between characteristics or the necessary amount of a
characteristic essential to support the life history of the species.
In considering whether features are essential to the conservation
of the species, we may consider an appropriate quality, quantity, and
spatial and temporal arrangement of habitat characteristics in the
context of the life-history needs, condition, and status of the
species. These characteristics include, but are not limited to, space
for individual and population growth and for normal behavior; food,
water, air, light, minerals, or other nutritional or physiological
requirements; cover or shelter; sites for breeding, reproduction, or
rearing (or development) of offspring; and habitats that are protected
from disturbance.
As described above under Species Needs, the Brawleys Fork crayfish
occurs in riffles and runs with fast to moderately rapid flow in first-
to third-order streams and one fifth-order stream. Brawleys Fork
crayfish typically occupy streams with layered chert gravel and cobble
substrate with ample interstitial space not consolidated by finer
substrates such as sand or silt. Cool water with ample riparian
vegetation and a high volume of clean groundwater discharged into the
stream from subterranean aquifers also characterize streams with
Brawleys Fork crayfish occurrences.
The primary habitat elements that influence resiliency of the
Brawleys Fork crayfish include water quantity and flow, water quality,
substrate, and habitat connectivity. These features are also described
above as resource needs under Background and Summary of Biological
Status and Threats, with individual needs summarized in table 1, and a
full description is available in the SSA report (Service 2023, pp. 18-
20).
We derive the specific physical or biological features essential to
the conservation of Brawleys Fork crayfish from studies of the species'
habitat, ecology, and life history as described below. Additional
information can be found in the SSA report (Service 2023, pp. 14-24);
available on <a href="https://www.regulations.gov">https://www.regulations.gov</a> under Docket No. FWS-R4-ES-
2023-0065). We have determined that the following physical or
biological features are essential to the conservation of Brawleys Fork
crayfish:
(1) Moderate to fast-flowing stream with unembedded chert gravel
and cobble substrate within an unobstructed stream continuum (i.e.,
riffle, run, pool complexes) of perennial, small- to moderate-sized
(generally third order or smaller) streams and rivers (up to the
ordinary high-water mark as defined at 33 CFR 329.11).
(2) Stream banks with intact riparian cover to maintain stream
morphology and reduce erosion and sediment inputs that may reduce
availability of substrate interstitial spaces.
(3) Water quality characterized by seasonally moderated, or spring
influenced, water temperatures and physical and chemical parameters
(e.g., pH, conductivity, dissolved oxygen) sufficient for the normal
behavior, growth, reproduction, and viability of all life stages.
(4) Adequate food base, indicated by a healthy aquatic community
structure including native benthic macroinvertebrates, fishes, and
plant matter (e.g., leaf litter, algae, detritus).
(5) An interconnected network of streams and rivers that have the
physical and biological features described in (1) through (4), above,
that allow for the movement of individual crayfish in response to
environmental, physiological, or behavioral drivers. The connectivity
of the stream network should be sufficient to allow for gene flow
within and among watersheds.
Special Management Considerations or Protection
When designating critical habitat, we assess whether the specific
areas within the geographical area occupied by the species at the time
of listing contain features which are essential to the conservation of
the species and which may require special management considerations or
protection. The features essential to the conservation of the Brawleys
Fork crayfish may require special management considerations or
protection to reduce the following threats: (1) Urbanization of the
landscape, including, but not limited to, land conversion for urban and
commercial use, infrastructure (roads, bridges, utilities), and urban
water uses (water supply reservoirs, wastewater treatment); (2)
nutrient pollution from agricultural and horticultural activities that
impact water quantity and quality; (3) significant alteration of water
quality; (4) significant alteration of channel morphology or geometry,
including channelization,
[[Page 57310]]
impoundment, road and bridge construction, or instream mining,
dredging, or channelization; and (5) watershed, riparian, and
floodplain disturbances that release sediments or nutrients into the
water or fill suitable habitat.
Special management considerations or protections may be required
within critical habitat areas to address these threats. Management
activities that could ameliorate these threats include, but are not
limited to, restoration and protection of riparian corridors and
retention of sufficient canopy cover along banks; implementation of
best management practices to reduce sedimentation, erosion, and
streambank degradation; stream bank restoration projects; increased use
of stormwater management and reduction of stormwater flows into the
stream systems; reduction of other watershed, riparian, and floodplain
disturbances that release sediments, pollutants, or nutrients into the
water; and improvements to industrial and municipal water treatment
facilities and sewage systems to reduce nutrient and pathogen
pollution.
Criteria Used To Identify Critical Habitat
As required by section 4(b)(2) of the Act, we use the best
scientific data available to designate critical habitat. In accordance
with the Act and our implementing regulations at 50 CFR 424.12(b), we
review available information pertaining to the habitat requirements of
the species and identify specific areas within the geographical area
occupied by the species at the time of listing and any specific areas
outside the geographical area occupied by the species to be considered
for designation as critical habitat. We are 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; specifically, no unoccupied areas
are essential for the conservation of the species.
We are proposing to designate six units that are currently occupied
across the geographic range as critical habitat. The occupied areas
proposed are sufficient and adequate to ensure the conservation of the
species, as they will support the species' redundancy and
representation (table 6). We anticipate that recovery will require
continued protection of the existing populations and habitat, as well
as ensuring there are streams distributed across the known range with
stable Brawleys Fork crayfish occurrences in five or more analysis
units (as delineated in the SSA) with sufficient abundance and occupied
reaches to increase species' viability. This conservation strategy and
the designation of proposed critical habitat support the species'
ability to withstand the loss of occurrences or occupied stream reaches
through a catastrophic event, such as the effects of a rangewide
drought or mega-drought or chemical spills and help ensure such an
event is less likely to simultaneously affect all known streams with
species' occurrence. Rangewide recovery considerations, such as
maintaining existing genetic diversity and striving for representation
across the current range of the species, were considered in formulating
this proposed critical habitat designation.
Sources of data for this proposed critical habitat designation
include the SSA (Service 2023, entire); records maintained by the
Tennessee Department of Environment and Conservation, Tennessee
Wildlife Resources Agency, Tennessee Valley Authority; research
published in peer-reviewed articles or presented in academic theses and
agency reports (Rohrbach and Withers 2006; Williams et al. 2017; Grubb
2019; Giddens and Mattingly 2020); university and museum collections;
regional Geographic Information System (GIS) coverages; and information
from other survey reports on streams throughout the species' range
(Khan 2021, unpublished data). We have also reviewed available
information that pertains to the habitat requirements of the Brawleys
Fork crayfish. Sources of information on habitat requirements include
studies conducted at occupied sites and published in peer-reviewed
articles, agency reports, and data collected during monitoring efforts
(Service 2023, pp. 14-24).
In summary, for areas within the geographic area occupied by the
species at the time of listing, we delineated critical habitat unit
boundaries using the following criteria:
We identified streams and rivers within the geographical area
occupied at the time of listing (i.e., with Brawleys Fork crayfish
occurrence records from 2000 to 2021). Many streams with suitable
habitat in the species' range have been surveyed in the last 15 years;
however, a rangewide survey has not been conducted. Accordingly, it is
possible the species may be detected in other locations upon subsequent
surveys. For example, the crayfish was observed in the West Fork Stones
River in 2016 and Mountain Creek in 2018, both representing new
collection sites and range extensions for the species (TWRA 2021,
unpublished data).
We then identified those streams that contain one or more of the
physical or biological features to support the life-history functions
essential to the conservation of the Brawleys Fork crayfish. We
delineated end points of stream and river units by evaluating the
presence or absence of habitat conditions and physical or biological
features essential to the species. We selected upstream and downstream
endpoints for each unit where habitat conditions no longer meet species
requirements (i.e., do not contain the physical or biological features
essential to the conservation of the Brawleys Fork crayfish). The
endpoints often correspond to tributary confluences, dams, or headwater
sources because of the effect of these features on habitat conditions.
Where favorable habitat that contains physical or biological features
essential to the conservation of Brawleys Fork crayfish shifts to less
favorable habitat that does not contain these features, we selected a
reference point such as a highway or bridge crossing that will allow
the public to identify proposed critical habitat units. The occurrence
data are linear in nature; therefore, for stretches of habitat between
occurrences, and between occurrences and endpoints of units, we assumed
the interposing stream segments contain at least one of the physical or
biological features essential to the conservation of the species and
include the interposing stream segment in the proposed critical habitat
unit. Based on the best available scientific data, we determined that
all currently known occupied habitat for the Brawleys Fork crayfish
contains one or more of the physical or biological features essential
to the conservation of the species and which may require special
management considerations or protection.
Based on this analysis, the following streams or rivers meet the
criteria for areas occupied by the species: West Fork Stones River,
Brawleys Fork, Carson Fork, Haws Spring Fork, East Fork Stones River,
Rockhouse Creek, Bullpen Creek, and Mountain Creek. The critical
habitat designation includes only the occupied streams or rivers within
the current range that have one or more of the physical or biological
features essential to the conservation of the species.
The result was the inclusion of six units of critical habitat
occupied by the Brawleys Fork crayfish. These six units encompass the
same geographic area and streams as the five analysis units delineated
in the SSA report (Service
[[Page 57311]]
2023). These six occupied units constitute approximately 86.6 river
miles (139.4 river kilometers). No areas outside the geographical area
occupied by the species at the time of listing were delineated as
proposed critical habitat. We are not designating any areas outside the
geographical area currently occupied by the Brawleys Fork crayfish
because we determined that occupied areas are sufficient to conserve
the species. Accordingly, we did not find any unoccupied areas to be
essential for the conservation of the species.
When determining proposed critical habitat boundaries, we made
every effort to avoid including developed areas such as lands covered
by buildings, pavement, and other structures because such lands lack
physical or biological features necessary for Brawleys Fork crayfish.
Critical habitat for the Brawleys Fork crayfish includes only stream
channels up to bankfull height, where the stream base flow is contained
within the channel. The scale of the maps we prepared under the
parameters for publication within the Code of Federal Regulations may
not reflect the exclusion of such developed lands. Any such lands
inadvertently left inside critical habitat boundaries shown on the maps
of this proposed rule have been excluded by text in the proposed rule
and are not proposed for designation as critical habitat. Therefore, if
the critical habitat is finalized as proposed, a Federal action
involving these lands would not trigger section 7 consultation with
respect to critical habitat and the requirement of no adverse
modification unless the specific action would affect the physical or
biological features in the adjacent critical habitat.
We propose to designate as critical habitat lands that we have
determined are occupied at the time of listing (i.e., currently
occupied) and that contain one or more of the physical or biological
features that are essential to support life-history processes of the
species. Units are proposed for designation based on one or more of the
physical or biological features being present to support Brawleys Fork
crayfish's life-history processes. Some units contain all of the
identified physical or biological features and support multiple life-
history processes. Some units contain only some of the physical or
biological features necessary to support the Brawleys Fork crayfish's
particular use of that habitat.
The proposed critical habitat designation is defined by the map or
maps, as modified by any accompanying regulatory text, presented at the
end of this document under Proposed Regulation Promulgation. We include
more detailed information on the boundaries of the critical habitat
designation in the preamble of this document. We will make the
coordinates or plot points or both on which each map is based available
to the public on <a href="https://www.regulations.gov">https://www.regulations.gov</a> at Docket No. FWS-R4-ES-
2023-0065 and on our internet site <a href="https://www.fws.gov/library/collections/Brawleys-Fork-crayfish">https://www.fws.gov/library/collections/Brawleys-Fork-crayfish</a>.
Proposed Critical Habitat Designation
We are proposing to designate 86.6 rmi (139.4 rkm) in six units as
critical habitat for Brawleys Fork crayfish. The critical habitat areas
we describe below constitute our current best assessment of areas that
meet the definition of critical habitat for Brawleys Fork crayfish. The
six areas we propose as critical habitat are: (1) West Fork Stones
River, (2) Brawleys Fork, (3) Carson Fork, (4) East Fork Stones River,
(5) Bullpen Creek, and (6) Mountain Creek. Table 6 shows the proposed
critical habitat units and the approximate area of each unit. All six
areas proposed as critical habitat are occupied by Brawleys Fork
crayfish.
Table 6--Proposed Critical Habitat Units for Brawleys Fork Crayfish
[Area estimates reflect stream length within critical habitat unit boundaries]
----------------------------------------------------------------------------------------------------------------
State or local Total river
Unit/subunit No. Unit name Private (rmi) Federal (rmi) (rmi) miles
----------------------------------------------------------------------------------------------------------------
1............................. West Fork Stones .............. 6.2 .............. 6.2
2............................. Brawleys Fork... 13.8 .............. .............. 13.8
----------------------------------------------------------------------------------------------------------------
Unit 3--Carson Fork
----------------------------------------------------------------------------------------------------------------
3a............................ Carson Fork..... 12.3 .............. .............. 12.3
3b............................ Haws Spring Fork 5.9 .............. .............. 5.9
----------------------------------------------------------------------------------------------------------------
Unit 4--East Fork Stones River
----------------------------------------------------------------------------------------------------------------
4a............................ East Fork Stones 30.9 .............. 1.6 32.5
4b............................ Rockhouse Creek. 3.4 .............. .............. 3.4
5............................. Bullpen Creek... 3.1 .............. .............. 3.1
6............................. Mountain Creek.. 9.4 .............. .............. 9.4
---------------------------------------------------------------
Total..................... ................ 78.8 6.2 1.6 86.6
----------------------------------------------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.
We present brief descriptions of all units, and reasons why they
meet the definition of critical habitat for Brawleys Fork crayfish,
below.
Unit 1: West Fork Stones
Unit 1 consists of approximately 6.2 rmi (10 rkm) of the West Fork
Stones River beginning at the Nice's Mill Recreation Area lowhead dam
and continuing to the confluence with the Stones River in Rutherford
County, Tennessee. All riparian lands in Unit 1 are in Federal
ownership (Department of Defense, USACE, J. Percy Priest Lake). Unit 1
is considered to be occupied by the Brawleys Fork crayfish. Unit 1
contains four of the identified physical or biological features
essential to the conservation of the Brawleys Fork crayfish. The West
Fork Stones River is isolated and does not have connectivity to any
other streams with known Brawleys Fork crayfish occurrences; thus, Unit
1 lacks the physical or biological feature related to an interconnected
network of streams and rivers. There is no overlap with any designated
critical habitat for other listed species.
[[Page 57312]]
Threats identified within this unit include the degradation of
habitat and water quality from sedimentation and water quality
degradation due to urbanization and development, flow reduction and
water quality degradation due to water withdrawals and wastewater
treatment plants, and habitat degradation due to instream modifications
including impoundments and activities that degrade streambanks. Special
management considerations or protection that may be required within
Unit 1 to reduce or alleviate impacts may include implementation of
best management practices to improve water quality or reverse
degradation resulting from urbanization and development (see Special
Management Considerations or Protection, above). Special management or
protection may also include consideration of Brawleys Fork crayfish in
the J. Percy Priest Lake Master Plan and inclusion of habitat
restoration efforts in future actions.
Unit 2: Brawleys Fork
Unit 2 consists of approximately 13.8 rmi (22.2 rkm) of the
Brawleys Fork and tributaries in Cannon County, Tennessee. Unit 2
includes the Brawleys Fork from the headwaters at Mill Bluff Hollow to
the confluence with the Carson Fork and Shelton Branch from the Gene
Perkins Road crossing to the confluence with Brawleys Fork. Riparian
lands in Unit 2 are in private ownership except for a small amount of
publicly owned bridge crossings and road easements. Unit 2 is
considered to be occupied by the Brawleys Fork crayfish and contains
all physical or biological features essential to the conservation of
the Brawleys Fork crayfish. There is no overlap with any designated
critical habitat for other listed species.
Threats identified within this unit include the degradation of
habitat and water quality from sedimentation, siltation, and pollution
due to agriculture, flow reduction and water quality degradation due to
water withdrawals, and habitat degradation due to instream
modifications including gravel dredging, impoundments, and activities
that degrade streambanks. In some cases, these threats are being
addressed or coordinated with our partners and landowners to implement
needed actions. Special management considerations or protection
measures that may be required within Unit 2 to alleviate impacts
include reducing wastewater or stormwater runoff, removal of barriers
or impoundments, natural stream restoration, and implementation of
agricultural and grazing practices that minimize nutrient and sediment
input. Special management or protection may also include consideration
of Brawleys Fork crayfish in agriculture and urban development plans
and habitat restoration efforts.
Unit 3: Carson Fork
Unit 3 consists of approximately 18.2 rmi (29.3 rkm) of the Carson
Fork and tributaries in Cannon County, Tennessee. Two subunits are
included in Unit 3 (Carson Fork), Subunit 3a (Carson Fork) and Subunit
3b (Haws Spring Fork).
Subunit 3a (Carson Fork) consists of 12.3 rmi (19.8 rkm) and
extends from the headwaters of the Carson Fork near Sadler Lane
downstream to the confluence with the East Fork Stones River, from the
headwaters of Duck Branch to the confluence of Carson Fork, and from
the headwaters of an unnamed tributary in Simmons Hollow to the
confluence of Carson Fork. Subunit 3b (Haws Spring Fork subunit)
consists of 5.9 rmi (9.5 rkm) and extends from the headwaters of Smith
Branch near Carrick Hollow to the confluence with Haws Spring Fork and
from the headwaters of Haws Spring to the confluence with the Carson
Fork. Riparian lands in Unit 3 are in private ownership except for a
small amount of publicly owned bridge crossings and road easements.
Unit 3 is considered to be occupied by the Brawleys Fork crayfish. Unit
3 (subunits 3a and 3b) contains all physical or biological features
essential to the conservation of the Brawleys Fork crayfish. There is
no overlap with any designated critical habitat for other listed
species.
Threats identified within this unit include the following:
degradation of habitat and water quality from sedimentation, siltation,
and pollution due to agriculture, flow reduction, and water
withdrawals; and habitat degradation due to instream modifications
including gravel dredging, impoundments, and activities that degrade
streambanks. Special management considerations or protection that may
be required within Unit 3 to alleviate impacts include reducing
wastewater or stormwater runoff, removal of barriers or impoundments,
natural stream restoration, and implementation of agricultural and
grazing practices that minimize nutrient and sediment input into
receiving streams. Special management or protection may also include
consideration of Brawleys Fork crayfish in agriculture and urban
development plans and habitat restoration efforts.
Unit 4: East Fork Stones River
Unit 4 consists of approximately 35.9 rmi (57.8 rkm) of the East
Fork Stones River mainstem and some of its tributaries in Cannon
County, Tennessee. Two subunits are included in Unit 4 (East Fork
Stones River), Subunit 4a (East Fork Stones) and Subunit 4b (Rockhouse
Creek). Subunit 4a (East Fork Stones subunit) consists of 32.5 rmi
(52.3 rkm) and includes Hollis Creek from the headwaters near Hollis
Creek South Road to the confluence with the East Fork Stones River,
Hill Creek from the tributary at Wood Hollow to the confluence with the
East Fork Stones River, Parchcorn Hollow Branch from the Parchcorn
Hollow road crossing to the confluence with the East Fork Stones River,
Cavender Branch from the Cavender Road bridge to the confluence with
the East Fork Stones River, and from Locke Creek to the confluence with
the East Fork Stones River.
Subunit 4b (Rockhouse Creek subunit) consists of 3.4 rmi (5.5 rkm)
and extends from the stream crossing at Seal Hollow Branch by Seal
Hollow Road to the confluence with Rockhouse Branch and from the
Higgins Road crossing of Rockhouse Creek downstream to the confluence
with the East Fork Stones River. Riparian lands in Unit 4 are in State
(0.7 rmi (1.1 rkm) of Headwater Wildlife Management Area), local (0.9
rmi (1.4 rkm) in two parks), and private ownership, as well as small
amount of publicly owned bridge crossings and road easements. Unit 4 is
considered to be occupied by the Brawleys Fork crayfish. Unit 4
(subunits 4a and 4b) contains all physical or biological features
essential to the conservation of the Brawleys Fork crayfish. There is
no overlap with any designated critical habitat for other listed
species.
Threats identified within this unit include the following:
degradation of habitat and water quality from sedimentation, siltation,
and pollution due to urbanization and development, agriculture, flow
reduction, water withdrawals, and wastewater treatment plant discharge;
and habitat degradation due to instream modifications including gravel
dredging, impoundments, and activities that degrade streambanks. In
some cases, these threats are being addressed or coordinated with our
partners and landowners to implement needed actions. Special management
considerations or protection that may be required within Unit 4 to
alleviate impacts include treating wastewater to the greatest extent
feasible, reducing wastewater or stormwater runoff, removal of barriers
or impoundments,
[[Page 57313]]
natural stream restoration, implementation of appropriate silvicultural
and forestry best management practices, and implementation of
agricultural and grazing practices that minimize nutrient and sediment
input. Special management or protection may also include consideration
of Brawleys Fork crayfish in agriculture and urban development plans
and habitat restoration efforts.
Unit 5: Bullpen Creek
Unit 5 consists of approximately 3.1 rmi (5.0 rkm) of Bullpen Creek
beginning at the Lonnie Smith Road crossing and extending downstream to
the lowhead dam near Charlie Powell Road in Cannon County, Tennessee.
Riparian lands in Unit 5 are in private ownership except for a small
amount of publicly owned bridge crossings and road easements. Unit 5 is
considered to be occupied by the Brawleys Fork crayfish. Unit 5
contains four of the identified physical or biological features
essential to the conservation of the Brawleys Fork crayfish. The
Bullpen Creek unit is isolated and does not have connectivity to any
other streams with known Brawleys Fork crayfish occurrences; thus, Unit
5 lacks the physical or biological feature related to an interconnected
network of streams and rivers. There is no overlap with any designated
critical habitat for other listed species.
Threats identified within this unit include the following:
degradation of habitat and water quality from sedimentation, siltation,
and pollution due to agriculture and horticulture, flow reduction, and
water withdrawals; and habitat degradation due to instream
modifications including gravel dredging, impoundments, and activities
that degrade streambanks. In some cases, these threats are being
addressed or coordinated with our partners and landowners to implement
needed actions. Special management considerations or protection that
may be required within Unit 5 to alleviate impacts from stressors
include but are not limited to the following: treating wastewater to
the greatest extent feasible, reducing wastewater or stormwater runoff,
removal of barriers or impoundments, natural stream restoration, and
implementation of agricultural and grazing practices that minimize
nutrient and sediment input. Special management or protection may also
include consideration of Brawleys Fork crayfish in agriculture and
urban development plans and habitat restoration efforts.
Unit 6: Mountain Creek
Unit 6 consists of approximately 9.4 rmi (15.1 rkm) of Mountain
Creek in Warren County, Tennessee. Unit 6 extends from the Mountain
Creek road crossing at Short Mountain Road downstream to the Smithville
Highway bridge in the city of Dibrell, Warren County, Tennessee.
Riparian lands in Unit 6 are in private ownership except for a small
amount of publicly owned bridge crossings and road easements. Unit 6 is
considered to be occupied by the Brawleys Fork crayfish. Unit 6
contains four of the identified physical or biological features
essential to the conservation of the Brawleys Fork crayfish. The
Mountain Creek unit is isolated and does not have connectivity to any
other streams with known Brawleys Fork crayfish occurrences, thus, Unit
6 lacks the physical or biological feature related to an interconnected
network of streams and rivers. There is no overlap with any designated
critical habitat for other listed species.
Threats identified within this unit include the following:
degradation of habitat and water quality from sedimentation, siltation,
and pollution due to urbanization and development, agriculture, and
horticulture, flow reduction, and water withdrawals; and habitat
degradation due to instream modifications including gravel dredging,
impoundments, and activities that degrade streambanks. Special
management considerations or protection that may be required within
Unit 6 to alleviate impacts from stressors include but are not limited
to the following: treating wastewater to the greatest extent feasible,
reducing wastewater or stormwater runoff, removal of barriers or
impoundments, natural stream restoration, and implementation of
agricultural and grazing practices that minimize nutrient and sediment
input. Special management or protection may also include consideration
of Brawleys Fork crayfish in agriculture and urban development plans
and habitat restoration efforts.
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.
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,
[[Page 57314]]
(2) Can be implemented consistent with the scope of the Federal
agency's legal authority and jurisdiction,
(3) Are economically and technologically feasible, and
(4) Would, in the Service Director's opinion, avoid the likelihood
of jeopardizing the continued existence of the listed species and/or
avoid the likelihood of destroying or adversely modifying critical
habitat.
Reasonable and prudent alternatives can vary from slight project
modifications to extensive redesign or relocation of the project. Costs
associated with implementing a reasonable and prudent alternative are
similarly variable.
Regulations at 50 CFR 402.16 set forth requirements for Federal
agencies to reinitiate formal consultation on previously reviewed
actions. These requirements apply when the Federal agency has retained
discretionary involvement or control over the action (or the agency's
discretionary involvement or control is authorized by law) and,
subsequent to the previous consultation: (a) if the amount or extent of
taking specified in the incidental take statement is exceeded; (b) if
new information reveals effects of the action that may affect listed
species or critical habitat in a manner or to an extent not previously
considered; (c) if the identified action is subsequently modified in a
manner that causes an effect to the listed species or critical habitat
that was not considered in the biological opinion or written
concurrence; or (d) if a new species is listed or critical habitat
designated that may be affected by the identified action. The
reinitiation requirement applies only to actions that remain subject to
some discretionary Federal involvement or control. As provided in 50
CFR 402.16, the requirement to reinitiate consultations for new species
listings or critical habitat designation does not apply to certain
agency actions (e.g., land management plans issued by the Bureau of
Land Management in certain circumstances.
Application of the ``Destruction or Adverse Modification'' Standard
The key factor related to the destruction or adverse modification
determination is whether implementation of the proposed Federal action
directly or indirectly alters the designated critical habitat in a way
that appreciably diminishes the value of the critical habitat for the
conservation of the listed species. As discussed above, the role of
critical habitat is to support physical or biological features
essential to the conservation of a listed species and provide for the
conservation of the species.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe, in any proposed or final regulation that designates critical
habitat, activities involving a Federal action that may violate section
7(a)(2) of the Act by destroying or adversely modifying such habitat,
or that may be affected by such designation.
Activities that we may, during a consultation under section 7(a)(2)
of the Act, consider likely to destroy or adversely modify critical
habitat include, but are not limited to: (1) Actions that would impede
or disconnect stream and river channels and contribute to further
habitat fragmentation at a scale and magnitude that appreciably
diminishes the value of critical habitat (e.g., large impoundments,
reservoir creation). Such activities include, but are not limited to,
construction of barriers that impede the instream movement of the
Brawleys Fork crayfish (e.g., impoundments, dams, culverts, or weirs).
These activities could result in destruction or fragmentation of
habitat, block movements between habitats, and/or affect flows within
or into critical habitat. In addition, these activities can isolate
populations that are more at risk of decline or extirpation as a result
of genetic drift, demographic or environmental stochasticity, and
catastrophic events.
(2) Actions that would affect channel substrates and stability or
geomorphology at a scale and magnitude that appreciably diminishes the
value of critical habitat (e.g., multiple or large tributaries or main
channel rerouting, dam construction on a river with Brawleys Fork
crayfish occurrences). Such activities include channelization,
impoundment, mining, dredging, road and bridge construction, removal of
riparian vegetation, and land clearing. These activities may lead to
changes in channel substrates, erosion of the streambed and banks, and
excessive sedimentation that could degrade Brawleys Fork crayfish
habitat.
(3) Actions that would reduce flow levels or alter flow regimes at
a scale and magnitude that appreciably diminishes the value of critical
habitat (i.e., flow levels or regimes that no longer support Brawleys
Fork crayfish in one or more critical habitat units). These could
include, but are not limited to, activities that block or lower surface
flow or groundwater levels, including channelization, impoundment,
groundwater pumping, and surface water withdrawal or diversion. Such
activities can result in long-term changes in stream flows that affect
habitat quality and quantity for the Brawleys Fork crayfish and its
prey.
(4) Actions that would significantly alter water chemistry or
quality to the extent that the value of critical habitat is appreciably
diminished (i.e., water quality does not support the Brawleys Fork
crayfish's needs in one or more units). Such activities could include,
but are not limited to, release of chemicals or biological pollutants
or heated effluents into the surface water or connected groundwater at
a point source or by dispersed release (non-point source). These
activities could alter water conditions to levels that are beyond the
tolerances of the Brawleys Fork crayfish and result in direct or
cumulative adverse effects to individuals and their life cycles.
(5) Actions that would significantly increase sediment deposition
or stream bottom embeddedness within the stream channel to the extent
that the value of critical habitat is appreciably diminished (e.g.,
excessive siltation such that Brawleys Fork crayfish are not able to
use the critical habitat unit). Such activities could include, but are
not limited to, excessive sedimentation from livestock grazing, road
construction, channel alteration, and agricultural or horticultural
practices that do not implement BMPs or improperly implement BMPs,
mining, dredging, and other watershed and floodplain disturbances.
These activities could eliminate or reduce the habitat necessary for
the growth and reproduction of the Brawleys Fork crayfish by increasing
the sediment deposition to levels that would adversely affect the
Brawleys Fork crayfish's ability to complete its life cycle.
Exemptions
Application of Section 4(a)(3) of the Act
Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i))
provides that the Secretary shall not designate as critical habitat any
lands or other geographical areas owned or controlled by the Department
of Defense (DoD), or designated for its use, that are subject to an
integrated natural resources management plan (INRMP) prepared under
section 101 of the Sikes Act Improvement Act of 1997 (16 U.S.C. 670a),
if the Secretary determines in writing that such plan provides a
benefit to the species for which critical habitat is proposed for
designation. No DoD lands with a completed INRMP are within the
proposed critical habitat designation.
[[Page 57315]]
Consideration of Impacts Under Section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that the Secretary shall
designate and make revisions to critical habitat on the basis of the
best available scientific data after taking into consideration the
economic impact, national security impact, and any other relevant
impact of specifying any particular area as critical habitat. The
Secretary may exclude an area from designated critical habitat based on
economic impacts, impacts on national security, or any other relevant
impacts. Exclusion decisions are governed by the regulations at 50 CFR
424.19 and the Policy Regarding Implementation of Section 4(b)(2) of
the Endangered Species Act (hereafter, the ``2016 Policy''; 81 FR 7226,
February 11, 2016), both of which were developed jointly with the
National Marine Fisheries Service (NMFS). We also refer to a 2008
Department of the Interior Solicitor's opinion entitled ``The
Secretary's Authority to Exclude Areas from a Critical Habitat
Designation under Section 4(b)(2) of the Endangered Species Act'' (M-
37016). We explain each decision to exclude areas, as well as decisions
not to exclude, to demonstrate that the decision is reasonable.
In considering whether to exclude a particular area from the
designation, we identify the benefits of including the area in the
designation, identify the benefits of excluding the area from the
designation, and evaluate whether the benefits of exclusion outweigh
the benefits of inclusion. If the analysis indicates that the benefits
of exclusion outweigh the benefits of inclusion, the Secretary may
exercise discretion to exclude the area only if such exclusion would
not result in the extinction of the species. In making the
determination to exclude a particular area, the statute on its face, as
well as the legislative history, are clear that the Secretary has broad
discretion regarding which factor(s) to use and how much weight to give
to any factor. We describe below the process that we undertook for
taking into consideration each category of impacts and our analyses of
the relevant impacts.
Consideration of Economic Impacts
Section 4(b)(2) of the Act and its implementing regulations require
that we consider the economic impact that may result from a designation
of critical habitat. To assess the probable economic impacts of a
designation, we must first evaluate specific land uses or activities
and projects that may occur in the area of the critical habitat. We
then must evaluate the impacts that a specific critical habitat
designation may have on restricting or modifying specific land uses or
activities for the benefit of the species and its habitat within the
areas proposed. We then identify which conservation efforts may be the
result of the species being listed under the Act versus those
attributed solely to the designation of critical habitat for this
particular species. The probable economic impact of a proposed critical
habitat designation is analyzed by comparing scenarios both ``with
critical habitat'' and ``without critical habitat.''
The ``without critical habitat'' scenario represents the baseline
for the analysis, which includes the existing regulatory and socio-
economic burden imposed on landowners, managers, or other resource
users potentially affected by the designation of critical habitat
(e.g., under the Federal listing as well as other Federal, State, and
local regulations). Therefore, the baseline represents the costs of all
efforts attributable to the listing of the species under the Act (i.e.,
conservation of the species and its habitat incurred regardless of
whether critical habitat is designated). The ``with critical habitat''
scenario describes the incremental impacts associated specifically with
the designation of critical habitat for the species. The incremental
conservation efforts and associated impacts would not be expected
without the designation of critical habitat for the species. In other
words, the incremental costs are those attributable solely to the
designation of critical habitat, above and beyond the baseline costs.
These are the costs we use when evaluating the benefits of inclusion
and exclusion of particular areas from the final designation of
critical habitat should we choose to conduct a discretionary section
4(b)(2) exclusion analysis.
Executive Order (E.O.) 12866, as reaffirmed by E.O.s 13563 and
14094, 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 Executive order's
regulatory analysis requirements, our effects analysis under the Act
may take into consideration impacts to both directly and indirectly
affected entities, where practicable and reasonable. If sufficient data
are available, we assess to the extent practicable the probable impacts
to both directly and indirectly affected entities. Section 3(f) of E.O.
12866 identifies four criteria when a regulation is considered a
``significant regulatory action'' and requires additional analysis,
review, and approval if met. The criterion relevant here is whether the
designation of critical habitat may have an economic effect of $200
million in any given year (section 3(f)(1)). Therefore, our
consideration of economic impacts uses a screening analysis to assess
whether a designation of critical habitat for Brawleys Fork crayfish is
likely to exceed the economically significant threshold.
For this particular designation, we developed an incremental
effects memorandum (IEM) considering the probable incremental economic
impacts that may result from this proposed designation of critical
habitat. The information contained in our IEM was then used to develop
a screening analysis of the probable effects of the designation of
critical habitat for the Brawleys Fork crayfish (Industrial Economics,
Inc. 2022, entire). We began by conducting a screening analysis of the
proposed designation of critical habitat in order to focus our analysis
on the key factors that are likely to result in incremental economic
impacts. The purpose of the screening analysis is to filter out
particular geographic areas of critical habitat that are already
subject to such protections and are, therefore, unlikely to incur
incremental economic impacts. In particular, the screening analysis
considers baseline costs (i.e., absent critical habitat designation)
and includes any probable incremental economic impacts where land and
water use may already be subject to conservation plans, land management
plans, best management practices, or regulations that protect the
habitat area as a result of the Federal listing status of the species.
Ultimately, the screening analysis allows us to focus our analysis on
evaluating the specific areas or sectors that may incur probable
incremental economic impacts as a result of the designation.
The presence of the listed species in occupied areas of critical
habitat means that any destruction or adverse modification of those
areas is also likely to jeopardize the continued existence of the
species. For that reason, designating occupied areas as critical
habitat typically causes little if any incremental impacts above and
beyond the impacts of listing the species. Therefore, the screening
analysis focuses on areas of unoccupied critical habitat. If there are
any unoccupied units in the proposed critical habitat designation, the
screening analysis assesses whether any additional management or
conservation efforts may incur incremental economic impacts. This
screening analysis combined with the information contained in our IEM
constitute what we consider to be our draft economic
[[Page 57316]]
analysis (DEA) of the proposed critical habitat designation for the
Brawleys Fork crayfish; our DEA is summarized in the narrative below.
As part of our screening analysis, we considered the types of
economic activities that are likely to occur within the areas likely
affected by the critical habitat designation. In our evaluation of the
probable incremental economic impacts that may result from the proposed
designation of critical habitat for the Brawleys Fork crayfish, first
we identified, in the IEM dated April 8, 2022, probable incremental
economic impacts associated with the following categories of
activities: (1) agriculture, (2) forestry, (3) development, (4)
recreation, (5) restoration activities, (6) flood control, (7)
transportation, (8) water quantity/supply, (9) dredging, and (10)
utilities. 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 affects only activities conducted,
funded, permitted, or authorized by Federal agencies. If we list the
species, in areas where the Brawleys Fork crayfish is present, Federal
agencies would be required to consult with the Service under section 7
of the Act on activities they fund, permit, or implement that may
affect the species. If, when we list the species, we also finalize this
proposed critical habitat designation, our consultations 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 would 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
Brawleys Fork crayfish's critical habitat. Because the designation of
critical habitat for Brawleys Fork crayfish is being proposed
concurrently with the listing, it has been our experience that it is
more difficult to discern which conservation efforts are attributable
to the species being listed and those which will result solely from the
designation of critical habitat. However, 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 likely adversely affect the
essential physical or biological features of occupied critical habitat
are also likely to adversely affect the Brawleys Fork crayfish. The IEM
outlines our rationale concerning this limited distinction between
baseline conservation efforts and incremental impacts of the
designation of critical habitat for this species. This evaluation of
the incremental effects has been used as the basis to evaluate the
probable incremental economic impacts of this proposed designation of
critical habitat.
The proposed critical habitat designation for the Brawleys Fork
crayfish totals approximately 86.6 rmi (139.4 rkm) of stream and river
channels in six units in Tennessee. Ownership of riparian lands
adjacent to the proposed units includes 78.8 rmi (126.8 rkm; 91
percent) in private ownership and 7.8 rmi (12.5 rkm; 9 percent) in
public (Federal or State) ownership. All six units are currently
occupied by the species and contain recent (2000 to 2021) occurrences
of Brawleys Fork crayfish. In these areas, any actions that may affect
the species or its habitat would also affect proposed critical habitat.
Thus, it is unlikely that any additional conservation efforts would be
recommended to address the adverse modification standard over and above
those recommended as necessary to avoid jeopardizing the continued
existence of the Brawleys Fork crayfish. We are not proposing to
designate any units of unoccupied habitat.
Because we are proposing the designation only of occupied critical
habitat, the only additional costs that are expected in all of the
proposed critical habitat designation are administrative costs. The
entities most likely to incur incremental costs are the Federal action
agencies that are parties to section 7 consultations. While the
analysis for adverse modification of critical habitat will require time
and resources by both the Federal action agency and the Service, these
costs would predominantly be administrative in nature. About 91 percent
of the proposed critical habitat designation for the Brawleys Fork
crayfish lies on private lands. As such, incremental costs from public
perception of the designation have some potential to arise (Industrial
Economics, Inc. (IEc) 2022, pp. 14-15). However, the critical habitat
units are in largely rural areas that are not experiencing significant
development pressures. As such, the likelihood that critical habitat
designation for the Brawleys Fork crayfish will result in perception-
related impacts appears unlikely. The estimated incremental costs of
critical habitat designation for the Brawleys Fork crayfish in the
first year are not expected to exceed $9,200 per year (2022 dollars)
(IEc 2022, p. 14). Thus, critical habitat designation for the Brawleys
Fork crayfish is unlikely to generate costs or benefits exceeding $200
million in a single year. Therefore, this rule is unlikely to meet the
threshold for an economically significant rule, with regard to costs,
under E.O. 12866.
We are soliciting data and comments from the public on the DEA
discussed above. During the development of a final designation, we will
consider the information presented in the DEA and any additional
information on economic impacts we receive during the public comment
period to determine whether any specific areas should be excluded from
the final critical habitat designation under authority of section
4(b)(2) of the Act and our implementing regulations at 50 CFR 424.19.
We may exclude an area from critical habitat if we determine that the
benefits of excluding the area outweigh the benefits of including the
area, provided the exclusion will not result in the extinction of this
species.
Consideration of National Security Impacts
Section 4(a)(3)(B)(i) of the Act may not cover all DoD lands or
areas that pose potential national-security concerns (e.g., a DoD
installation that is in the process of revising its INRMP for a newly
listed species or a species previously not covered). If a particular
area is not covered under section 4(a)(3)(B)(i), then national-security
or homeland-security concerns are not a factor in the process of
determining what areas meet the definition of ``critical habitat.''
However, the Service must still consider impacts on national security,
including homeland security, on those lands or areas not covered by
section 4(a)(3)(B)(i) because section 4(b)(2) requires the Service to
consider those impacts whenever it designates critical habitat.
Accordingly, if DoD, Department of Homeland Security (DHS), or another
Federal agency has requested exclusion based on an assertion of
national-security or homeland-security concerns, or we have otherwise
identified national-security or homeland-security impacts from
designating particular areas as critical habitat, we generally have
reason to consider excluding those areas.
However, we cannot automatically exclude requested areas. When DoD,
DHS, or another Federal agency requests exclusion from critical habitat
on the basis of national-security or homeland-security impacts, we must
conduct an exclusion analysis if the Federal
[[Page 57317]]
requester provides information, including a reasonably specific
justification of an incremental impact on national security that would
result from the designation of that specific area as critical habitat.
That justification could include demonstration of probable impacts,
such as impacts to ongoing border-security patrols and surveillance
activities, or a delay in training or facility construction, as a
result of compliance with section 7(a)(2) of the Act. If the agency
requesting the exclusion does not provide us with a reasonably specific
justification, we will contact the agency to recommend that it provide
a specific justification or clarification of its concerns relative to
the probable incremental impact that could result from the designation.
If we conduct an exclusion analysis because the agency provides a
reasonably specific justification or because we decide to exercise the
discretion to conduct an exclusion analysis, we will defer to the
expert judgment of DoD, DHS, or another Federal agency as to: (1)
Whether activities on its lands or waters, or its activities on other
lands or waters, have national-security or homeland-security
implications; (2) the importance of those implications; and (3) the
degree to which the cited implications would be adversely affected in
the absence of an exclusion. In that circumstance, in conducting a
discretionary section 4(b)(2) exclusion analysis, we will give great
weight to national-security and homeland-security concerns in analyzing
the benefits of exclusion.
We have evaluated whether any of the lands within the proposed
designation of critical habitat are owned by DoD or DHS or could lead
to national-security or homeland-security impacts if designated. In
preparing this proposal, we have determined that the lands within the
proposed designation of critical habitat for Brawleys Fork crayfish
including the J. Percy Priest Reservoir in Unit 1 are owned or managed
by the DoD Army Corps of Engineers. However, we anticipate no impact on
national security or homeland security resulting from the proposed
critical habitat designation.
Consideration of Other Relevant Impacts
Under section 4(b)(2) of the Act, we consider any other relevant
impacts, in addition to economic impacts and impacts on national
security discussed above. To identify other relevant impacts that may
affect the exclusion analysis, we consider a number of factors,
including whether there are permitted conservation plans covering the
species in the area--such as HCPs, safe harbor agreements (SHAs), or
candidate conservation agreements with assurances (CCAAs)--or whether
there are non-permitted conservation agreements and partnerships that
may be impaired by designation of, or exclusion from, critical habitat.
In addition, we look at whether Tribal conservation plans or
partnerships, Tribal resources, or government-to-government
relationships of the United States with Tribal entities may be affected
by the designation. We also consider any State, local, social, or other
impacts that might occur because of the designation.
In preparing this proposal, we have determined that no HCPs or
other management plans for Brawleys Fork crayfish currently exist, and
the proposed designation does not include any Tribal lands or trust
resources or any lands for which designation would have any economic or
national security impacts. Therefore, we anticipate no impact on Tribal
lands, partnerships, or HCPs from this proposed critical habitat
designation and thus, as described above, we are not considering
excluding any particular areas on the basis of the presence of
conservation agreements or impacts to trust resources.
However, if through the public comment period we receive
information that we determine indicates that there are potential
economic, national security, or other relevant impacts from designating
particular areas as critical habitat, then as part of developing the
final designation of critical habitat, we will evaluate that
information and may conduct a discretionary exclusion analysis to
determine whether to exclude those areas under authority of section
4(b)(2) and our implementing regulations at 50 CFR 424.19. If we
receive a request for exclusion of a particular area and after
evaluation of supporting information we do not exclude, we will fully
describe our decision in the final rule for this action.
Required Determinations
Clarity of the Rule
We are required by E.O.s 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, 13563, and
14094)
Executive Order 14094 reaffirms the principles of E.O. 12866 and
E.O. 13563 and states that regulatory analysis should facilitate agency
efforts to develop regulations that serve the public interest, advance
statutory objectives, and are consistent with E.O. 12866, E.O. 13563,
and the Presidential Memorandum of January 20, 2021 (Modernizing
Regulatory Review). Regulatory analysis, as practicable and
appropriate, shall recognize distributive impacts and equity, to the
extent permitted by law. We have developed this proposed rule in a
manner consistent with these requirements.
E.O. 12866, as reaffirmed by E.O. 13563 and E.O. 14094, provides
that the Office of Information and Regulatory Affairs (OIRA) in the
Office of Management and Budget (OMB) will review all significant
rules. OIRA has determined that this proposed rulemaking action is not
significant.
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
[[Page 57318]]
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 (avoiding destruction and adverse
modification) imposed by critical habitat designation. Consequently, it
is our position that only Federal action agencies would be directly
regulated if we adopt the proposed critical habitat designation. 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, the proposed critical habitat designation will not have a
significant economic impact on a substantial number of small entities.
In summary, we have considered whether the proposed designation
would result in a significant economic impact on a substantial number
of small entities. For the above reasons and based on currently
available information, we certify that, if made final, the proposed
critical habitat designation 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. Facilities that provide energy supply, distribution,
or use occur within some units of the proposed critical habitat
designations (for example, dams, pipelines) and may potentially be
affected. We determined that consultations, technical assistance, and
requests for species lists may be necessary in some instances. In our
economic analysis, we did not find that this proposed critical habitat
designation would significantly affect energy supplies, distribution,
or use. Therefore, this action is not a significant energy action, and
no statement of energy effects is required.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following 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 are not likely to 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 small governments will be
affected only to the extent that any programs having Federal funds,
permits, or other authorized activities must ensure that their actions
will not adversely affect the critical habitat. Therefore, a small
government agency plan is not required.
Takings--Executive Order 12630
In accordance with E.O. 12630 (Government Actions and Interference
with Constitutionally Protected Private Property Rights), we have
analyzed the potential takings implications of designating critical
habitat for Brawleys Fork crayfish in a takings implications
assessment. The Act does not authorize the Service to regulate private
actio
[…truncated; see source link]Indexed from Federal Register on August 22, 2023.
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.