[Federal Register: June 23, 2010 (Volume 75, Number 120)]
[Proposed Rules]
[Page 35751-35763]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23jn10-40]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R3-ES-2010-0042]
[MO-92210-0-0009-B4]
RIN 1018-AW90
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for Tumbling Creek Cavesnail
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
designate critical habitat for the Tumbling Creek cavesnail (Antrobia
culveri) under the Endangered Species Act of 1973, as amended (Act). We
propose to designate as critical habitat approximately 25 acres (10.12
hectares) in one unit. The proposed critical habitat encompasses
Tumbling Creek and associated springs, located near Protem, in Taney
County, Missouri.
DATES: We will consider comments from all interested parties until
August 23, 2010. We must receive requests for public hearings, in
writing, at the address shown in the FOR FURTHER INFORMATION CONTACT
section by August 9, 2010. Please note that if you are using the
Federal eRulemaking Portal (see ADDRESSES section, below) the deadline
for submitting an electronic comment is 11:59 p.m. Eastern Daylight
Savings Time on August 23, 2010.
ADDRESSES: You may submit comments by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov. In
the box that reads ``Enter Keyword or ID,'' enter the Docket number for
this finding, which is FWS-R3-ES-2010-0042. Check the box that reads
``Open for Comment/Submission,'' and then click the Search button. You
should then see an icon that reads ``Submit a Comment.'' Please ensure
that you have found the correct rulemaking before submitting your
comment.
U.S. mail or hand-delivery: Public Comments Processing,
Attn: FWS-R3-ES-2010-0042; Division of Policy and Directives
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive,
Suite 222; Arlington, VA 22203.
We will not accept e-mail or faxes. We will post all comments on
http://www.regulations.gov. This generally means that we will post any
personal information you provide us (see the Public Comments section
below for more information).
FOR FURTHER INFORMATION CONTACT: Charles M. Scott, Field Supervisor,
Columbia Fish and Wildlife Office, U.S. Fish and Wildlife Service, 101
Park DeVille Dr., Suite A, Columbia, MO 65203; telephone: 573-234-2132;
facsimile: 573-234-2181. If you use a telecommunications device for the
deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-
877-8339.
SUPPLEMENTARY INFORMATION:
Public Comments
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 suggestions from governmental agencies, the scientific
community, industry, or any other interested party concerning this
proposed rule. We particularly seek comments concerning:
(1) Population survey results for the Tumbling Creek cavesnail, as
well as any studies that may show distribution, status, population
size, or population trends, as they may pertain to critical habitat for
the species.
(2) Pertinent aspects of life history, ecology, and habitat use of
the Tumbling Creek cavesnail.
(3) Our ``prudency'' evaluation for the designation of critical
habitat for Tumbling Creek cavesnail.
(4) The reasons why we should or should not designate habitat as
``critical
[[Page 35752]]
habitat'' under section 4 of the Endangered Species Act of 1973, as
amended (Act) (16 U.S.C. 1531 et seq.), including whether there are
threats to the species from human activity, the degree of which can be
expected to increase due to the designation, and whether the benefit of
designation would be outweighed by threats to the species caused by the
designation.
(5) Comments or information that may assist us in identifying or
clarifying the physical and biological features essential to the
conservation of the species.
(6) Specific information on:
The amount and distribution of Tumbling Creek cavesnail
habitat,
What areas occupied at the time of listing contain
physical and biological features essential to the conservation of the
species,
What special management considerations or protections
these features may require, and
What areas not occupied at the time of listing are
essential for the conservation of the species and why.
(7) Land-use designations and current or planned activities in the
subject areas and their possible impacts on proposed critical habitat.
(8) Any probable economic, national security, or other relevant
impacts of designating any area that may be included in the final
designation. We are particularly interested in any impacts on small
entities (for example, small businesses or small governments) or
families, and the benefits of including or excluding areas that exhibit
these impacts.
(9) Whether any specific areas we are proposing as critical habitat
should be excluded under section 4(b)(2) of the Act, and whether the
benefits of potentially excluding any particular area outweigh the
benefits of including that area under section 4(b)(2) of the Act.
(10) Information on any quantifiable economic costs or benefits of
the proposed designation of critical habitat.
(11) Information on the projected and reasonably likely impacts of
climate change on the Tumbling Creek cavesnail, and any special
management needs or protections that may be needed in the critical
habitat area we are proposing.
(12) 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 concern and
comments.
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in the ADDRESSES section. We will not
accept comments sent by e-mail or fax or to an address not listed in
the ADDRESSES section.
We will post your entire comment--including your personal
identifying information--on http://www.regulations.gov. If your written
comments provide 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.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection on http://www.regulations.gov, or by
appointment, during normal business hours at the Columbia Ecological
Services Office (see FOR FURTHER INFORMATION CONTACT).
Background
It is our intent to discuss only those topics directly relevant to
the designation of critical habitat in this proposed rule. For more
information on the Tumbling Creek cavesnail, refer to the final listing
rule published in the Federal Register on August 14, 2002 (67 FR
52879), and the Tumbling Creek Cavesnail Recovery Plan (published in
the Federal Register on September 22, 2003 (68 FR 55060)), available on
the Internet at http://ecos.fws.gov/docs/recovery_plans/2003/
030922a.pdf.
The Tumbling Creek cavesnail is a critically imperiled aquatic
snail, endemic to a single cave stream and associated springs in Taney
County, southwestern Missouri. The species is known only from Tumbling
Creek and a few of its small tributaries and associated underground
springs within Tumbling Creek Cave, and areas immediately downstream of
the cave between the cave's natural exit and the confluence of Tumbling
Creek with Big Creek at Schoolhouse Spring. Suitable habitat includes
the underside of rocks, small stones, and cobble, and occasionally the
upper surface of solid rock bottom within sections of Tumbling Creek
that have moderate current (U.S. Fish and Wildlife Service 2003, p.
10). The Tumbling Creek cavesnail is dependent on good water quality
and reduced sediment loads in Tumbling Creek (Aley and Ashley 2003, p.
20).
The Tumbling Creek cavesnail was emergency listed on December 27,
2001 (66 FR 66803) and subsequently listed as endangered on August 14,
2002 (67 FR 52879) because of a precipitous population decline and
water degradation in Tumbling Creek. The primary threats related to the
degradation of water quality in Tumbling Creek are increased siltation
from overgrazing, tree removal, and other activities. Nonpoint source
pollution within the recharge area of Tumbling Creek cave is also a
threat to the species (Aley and Ashley 2003, p. 19; U.S. Fish and
Wildlife Service 2003, pp. 14-18). The deposition of silt into Tumbling
Creek from aboveground activities within the recharge area of Tumbling
Creek Cave has likely contributed to the decline of the species by
eliminating the species' habitat, covering egg masses, or adversely
impacting the snail in other ways (Tom and Cathy Aley, 2001, pers.
comm.; U.S. Fish and Wildlife Service 2001, p. 66806; Aley and Ashley
2003, p. 19; U.S. Fish and Wildlife Service 2003, pp. 14-18).
Previous Federal Actions
The Tumbling Creek cavesnail was emergency listed on December 27,
2001 (66 FR 66803) and subsequently listed as endangered on August 14,
2002 (67 FR 52879). At the time of listing, we determined that a delay
in designating critical habitat would enable us to concentrate our
limited resources on other actions that must be addressed and allow us
to invoke immediate protections needed for the conservation of the
species. We concluded that, if prudent and determinable, we would
prepare a critical habitat proposal in the future at such time as our
available resources and other listing priorities under the Act would
allow. We approved a final recovery plan for the Tumbling Creek
cavesnail on September 15, 2003, and made it available to the public
through a notice published in the Federal Register on September 22,
2003 (68 FR 55060).
On August 11, 2008, the Institute for Wildlife Protection and
Crystal Grace Rutherford filed a lawsuit against the Secretary of
Interior for our failure to timely designate critical habitat for the
Tumbling Creek cavesnail (Institute for Wildlife Protection et al v.
Kempthorne (07-CV-01202-CMP)). In a court-approved settlement
agreement, we agreed to submit to the Federal Register a new prudency
determination, and if the designation was found to be prudent, a
proposed designation of critical habitat, by June 30, 2010, and a final
designation by June 30, 2011.
Critical Habitat
Background
Critical habitat is defined in section 3 of the Act as:
[[Page 35753]]
(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.
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 under 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(a)(2) of the
Act through the prohibition against Federal agencies carrying out,
funding, or authorizing the destruction or adverse modification of
critical habitat. Section 7(a)(2) requires consultation on Federal
actions that may affect critical habitat. The designation of critical
habitat does not affect land ownership or establish a refuge,
wilderness, reserve, preserve, or other conservation area. Such
designation does not allow the government or public to access private
lands. Such designation does not require implementation of restoration,
recovery, or enhancement measures by non-Federal landowners. Where a
landowner seeks or requests Federal agency funding or authorization for
an action that may affect a listed species or critical habitat, the
consultation requirements of section 7(a)(2) would apply, but even in
the event of a destruction or adverse modification finding, the Federal
action agency's and the landowner's obligation is not to restore or
recover the species, but to implement reasonable and prudent
alternatives to avoid destruction or adverse modification of critical
habitat.
To be considered for inclusion in a critical habitat designation,
the habitat within the geographical area occupied by the species at the
time it was listed must contain the physical or biological features
that are essential to the conservation of the species. Areas supporting
the essential physical or biological features are identified, to the
extent known using the best scientific data available, as the habitat
areas that provide essential life cycle needs of the species. Habitat
within the geographical area occupied by the species at the time of
listing that contains features essential to the conservation of the
species meets the definition of critical habitat only if these features
may require special management consideration or protection. Under the
Act and regulations in the Code of Federal Regulations (CFR) at 50 CFR
424.12, we can designate critical habitat in areas outside the
geographical area occupied by the species at the time it is listed only
when we determine that the best available scientific data demonstrate
that the designation of those areas is 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 and commercial 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 we should designate as critical
habitat, our primary source of information is generally the information
developed during the listing process for the species. Additional
information sources may include 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, or other unpublished materials and expert opinion or
personal knowledge.
Prudency Determination
Section 4(a)(3) of the Act, as amended, and implementing
regulations (50 CFR 424.12) require that, to the maximum extent prudent
and determinable, the Secretary designate critical habitat at the time
the species is determined to be endangered or threatened. Our
regulations at 50 CFR 424.12(a)(1) state that the designation of
critical habitat is not prudent when one or both of the following
situations exist: (1) The species is threatened by taking or other
activity and the identification of critical habitat can be expected to
increase the degree of threat to the species; or (2) the designation of
critical habitat would not be beneficial to the species.
There is no documentation that the Tumbling Creek cavesnail is
threatened by taking or other human activity that would be increased by
the identification of critical habitat. In the absence of finding that
the designation of critical habitat would increase threats to the
species, if there are any benefits to a critical habitat designation,
then a prudent finding is warranted. The potential benefits include:
(1) Triggering consultation, under section 7 of the Act, in new
areas for action in which there may be a Federal nexus where
consultation would not otherwise occur, because, for example, an areas
is or has become unoccupied or the occupancy is in question;
(2) Identifying the physical and biological features essential to
the conservation of the Tumbling Creek cavesnail and focusing
conservation activities on these essential features and the areas that
support them;
(3) Providing educational benefits to State or county governments
or private entities engaged in activities or long-range planning in
areas essential to the conservation of the species; and
(4) Preventing people from causing inadvertent harm to the species.
Conservation of the Tumbling Creek cavesnail and the essential features
of its habitat will require habitat protection and restoration, which
will be facilitated by knowledge of habitat locations and the physical
and biological features of those habitat locations.
Therefore, since we have determined that the designation of
critical habitat will not likely increase the degree of threat to the
species and may provide some measure of benefit, we find that the
designation of critical habitat for the Tumbling Creek cavesnail is
prudent.
Critical Habitat Determinability
As stated above, section 4(a)(3) of the Act requires the
designation of critical habitat concurrently with the species' listing
``to the maximum extent prudent and determinable.'' Our regulations at
50 CFR 424.12(a)(2) state that critical
[[Page 35754]]
habitat is not determinable when one or both of the following
situations exist:
(1) Information sufficient to perform required analyses of the
impacts of the designation is lacking, or
(2) The biological needs of the species are not sufficiently well
known to permit identification of an area as critical habitat.
When critical habitat is not determinable, the Act provides for an
additional year to publish a critical habitat designation (16 U.S.C.
1533(b)(6)(C)(ii)).
We reviewed the available information pertaining to the biological
needs of the Tumbling Creek cavesnail, the historical distribution of
the Tumbling Creek cavesnail, and the habitat characteristics where the
species currently occurs. This and other information represents the
best scientific and commercial data available and led us to conclude
that the designation of critical habitat is determinable for the
Tumbling Creek cavesnail.
Methods
As required by section 4(b) of the Act, we used the best scientific
and commercial data available in determining which areas within the
geographical area occupied by the species at the time of listing
contain the features essential to the conservation of the Tumbling
Creek cavesnail that may require special management considerations or
protections, and which areas outside of the geographical area occupied
at the time of listing are essential for the conservation of the
species.
We reviewed the available information pertaining to historical and
current distributions, life histories, and habitat requirements of this
species. Our sources included peer-reviewed scientific publications;
unpublished survey reports; unpublished field observations by Service,
State, and other experienced biologists; notes and communications from
qualified biologists or experts; and Service publications such as the
final listing rule for the Tumbling Creek cavesnail (67 FR 52879) and
the Recovery Plan for the Tumbling Creek cavesnail (U.S. Fish and
Wildlife Service 2003).
Physical and Biological Features
In accordance with sections 3(5)(A)(i) and 4(b)(1)(A) of the Act
and the regulations at 50 CFR 424.12, in determining which areas within
the geographical area occupied at the time of listing to propose as
critical habitat, we consider the physical and biological features that
are essential to the conservation of the species which may require
special management considerations or protection. These include, but are
not limited to:
(1) Space for individual and population growth and for normal
behavior;
(2) Food, water, air, light, minerals, or other nutritional or
physiological requirements;
(3) Cover or shelter;
(4) Sites for breeding, reproduction, or rearing (or development)
of offspring; and
(5) Habitats that are protected from disturbance or are
representative of the historic, geographical, and ecological
distributions of a species.
We consider the specific essential physical and biological features
to be the primary constituent elements (PCEs; see ``Primary Constituent
Elements'' below) laid out in the appropriate quantity and spatial
arrangement for the conservation of the species. The PCEs required for
the Tumbling Creek cavesnail are derived from biological needs of the
species as described in the Background section of this proposed rule
and in the final listing rule (67 FR 52879). Unfortunately, little is
known of the specific habitat requirements for this species other than
that the species requires adequate water quality, water quantity, water
flow, a stable stream channel, minimal sedimentation, and energy input
from the guano of bats, particularly gray bats (Myotis grisescens) that
roost in Tumbling Creek Cave. To identify the physical and biological
features essential to the Tumbling Creek cavesnail, we have relied on
current conditions at locations where the species survives, and the
limited information available on this species and its close relatives.
Space for Individual and Population Growth and for Normal Behavior
The specific space requirements for the Tumbling Creek cavesnail
are unknown, but given that 15,118 snails were estimated in a 1,016
square meter area of Tumbling Creek in 1973 (Greenlee 1974, p. 10),
space is not likely a limiting factor for the species. The loss of
interstitial habitats for the species, however, likely contributed to
the species decline (U.S. Fish and Wildlife Service 2003, p. 14).
Food, Water, Air, Light, Minerals, or Other Nutritional or
Physiological Requirements
It is believed that the species feeds on biofilm, the organic
coating and bacterial layer associated with the underside of rocks or
bare rock stream bottom (Aley and Ashley 2003, p. 19). This biofilm is
directly connected to energy input from the guano of a large colony of
roosting bats in Tumbling Creek Cave, particularly the federally listed
gray bat (Myotis grisescens) (Aley and Ashley 2003, p.18; U.S. Fish and
Wildlife Service 2003, p. 11). The cavesnail is often found on rocks
coated with manganese oxide (Aley and Ashley 2003, p. 18); however, the
role manganese minerals play in the growth and survival of the
cavesnail is unknown.
Based on the information above, we identified energy input from bat
guano, which is essential in the development of biofilm that cavesnails
use for food to be a PCE for this species.
Cover or Shelter
The Tumbling Creek cavesnail has been found on both the upper and
lower surfaces of rocks and gravel (Greenlee 1974, p. 10; Aley and
Ashley 2003, p. 18; U.S. Fish and Wildlife Service 2003, p. 12). Flow
rates in Tumbling Creek can reach 150 cubic feet per second (cfs)
during flash flood events (Aley 2010, pers. comm.), and such events may
dislodge cavesnails from the upper surface of substrates. Consequently,
it is likely that the underside of larger rocks provides some cover for
cavesnails. Rocks and gravel are used by cavesnails for attachment
(Greenlee 1974, p. 10; U.S. Fish and Wildlife Service, p. 12).
Additionally, it is likely that a stable stream bottom and cave stream
banks and riffle, run, and pool habitats are important components of
the species' habitat.
Based on the information above, we identified stable stream bottoms
and banks (stable horizontal dimension and vertical profile) in order
to maintain bottom features (riffles, runs, and pools) and transition
zones between bottom features to be a PCE for this species. We also
identified bottom substrates consisting of fine gravel with coarse
gravel or cobble, or bedrock with sand and gravel, with low amounts of
fine sand and sediments within the interstitial spaces of the
substrates, as a PCE.
Sites for Breeding, Reproduction, or Rearing
Like other members of the snail family Hydrobiidae, the Tumbling
Creek cavesnail has separate male and female individuals (Aley and
Ashley 2003, p. 19), but there is no information on the mating behavior
of the species or what role the unknown sex ratio of the species may
have on successful reproduction. Eggs are likely deposited in
gelatinous egg masses, but to date, the occurrence of such egg masses
has yet
[[Page 35755]]
to be documented (Aley and Ashley 2003, p. 19). Although little is
known about the reproductive behavior and development of offspring of
the Tumbling Creek cavesnail, it is likely that rock and gravel
substrates that are free from silt are important elements necessary for
successful propagation, especially for attachment of gelatinous egg
masses. Aley and Ashley (2003, p. 19) postulated that silt deposited in
Tumbling Creek could smother egg masses, and Ashley (2000, p. 8)
suggested that silt could suffocate early developmental stages of the
cavesnail. The life span of the Tumbling Creek cavesnail is unknown,
but, if similar to other surface-dwelling hydrobid snails that have
been studied, it is probably between 1 and 5 years (Aley and Ashley
2003, p. 19).
The cavesnail is dependent on good water quality (Aley and Ashley
2003, pp. 19-20; U.S. Fish and Wildlife Service 2003, pp. 13-22). Aley
(2001, pers. comm.; U.S. Fish and Wildlife Service 2003, p. 22) noted
that oxygen depletion could occur in Tumbling Creek during low flows;
therefore, permanent flow of the stream is apparently important to the
survival of the cavesnail. Aley (2010, pers. comm.) calculated that an
average daily discharge of 0.07-150 cubic feet per second (cfs) was
necessary to maintain good water quality for the cavesnail. Aley (2010,
pers. comm.) also postulated that, to ensure good water quality for the
Tumbling Creek cavesnail, water temperature of the cave stream should
be between 55-62 [deg]F (12.78-16.67 [deg]C), dissolved oxygen levels
should not exceed 4.5 milligrams per liter, and turbidity of an average
monthly reading should not exceed 200 Neophelometric Units and should
not persist for a period greater than 4 hours.
Based on the information above, we identified an instream flow
regime with an average daily discharge between 0.07 and 150 cubic feet
per second (cfs), inclusive of both surface runoff and groundwater
sources (springs and seepages), and water quality with temperature
between 55-62 [deg]F (12.78-16.67[deg]C), dissolved oxygen 4.5
milligrams or greater per liter, and turbidity of an average monthly
reading of no more than 200 Nephelometric Turbidity Units (NTU; units
used to measure sediment discharge) or less for a duration not to
exceed 4 hours. to be PCEs for this species.
Primary Constituent Elements (PCEs) for the Tumbling Creek Cavesnail
Under the Act and its implementing regulations, we are required to
identify the essential physical and biological features essential to
the conservation of the Tumbling Creek cavesnail. The physical and
biological features are the essential habitat components (PCEs) laid
out in the appropriate quantity and spatial arrangement essential to
the conservation of the species. Areas designated as critical habitat
for the Tumbling Creek cavesnail contain only occupied areas within the
species' current and historical geographic range, and contain the
essential physical and biological features in sufficient quantity and
arrangement to support the species' main life history functions.
Based on our current knowledge of the life history, biology, and
ecology of the Tumbling Creek cavesnail and the requirements of the
habitat to sustain the essential life history functions of the species,
we determined that the PCEs specific to the Tumbling Creek cavesnail
are:
(1) Geomorphically stable stream bottoms and banks (stable
horizontal dimension and vertical profile) in order to maintain bottom
features (riffles, runs, and pools) and transition zones between bottom
features; to continue appropriate habitat to maintain essential
riffles, runs, and pools; to promote connectivity between Tumbling
Creek and its tributaries and associated springs;
(2) Instream flow regime with an average daily discharge between
0.07 and 150 cubic feet per second (cfs), inclusive of both surface
runoff and groundwater sources (springs and seepages);
(3) Water quality with temperature between 55-62 [deg]F (12.78-
16.67 [deg]C), dissolved oxygen 4.5 milligrams or greater per liter,
and turbidity of an average monthly reading of no more than 200
Nephelometric Turbidity Units (NTU; units used to measure sediment
discharge) for a duration not to exceed 4 hours;
(4) Bottom substrates consisting of fine gravel with coarse gravel
or cobble, or bedrock with sand and gravel, with low amounts of fine
sand and sediments within the interstitial spaces of the substrates;
and
(5) Energy input from guano that originates mainly from gray bats
that roost in the cave; guano is essential in the development of
biofilm (the organic coating and bacterial layer that covers rocks in
the cave stream) that cavesnails use for food.
With this proposed designation of critical habitat, we intend to
conserve the physical and biological features essential to the
conservation of the species, through the identification of the
appropriate quantity and spatial arrangement of the PCEs sufficient to
support the life history functions of the species. The area proposed as
critical habitat in this rule contains one or more PCEs to provide for
the main life history functions of the Tumbling Creek cavesnail.
Special Management Considerations or Protections
When designating critical habitat, we assess whether the specific
areas within the geographical area occupied by the species at the time
of listing contain the physical and biological features that are
essential to the conservation of the species and whether those features
may require special management considerations or protection.
The one unit we are proposing for designation as critical habitat
will require some level of management to address the current and future
threats to the physical and biological features essential to the
conservation of the species. Although no portion of the proposed
critical habitat unit is presently under special management or
protection provided by a legally operative plan or agreement for the
conservation of the Tumbling Creek cavesnail, the cave owners Tom and
Cathy Aley have been actively involved in implementing numerous
conservation measures that continue to contribute to the recovery of
the species. Various activities in or adjacent to the critical habitat
unit described in this proposed rule may affect one or more of the
PCEs. For example, features in the proposed critical habitat
designation may require special management due to threats associated
with management of water levels on Bull Shoals Reservoir (such as
increased sedimentation or bank erosion from backwater flooding); by
significant changes in the existing flow regime of Tumbling Creek, its
tributaries, or associated springs; by significant alteration of water
quality; by significant alteration in the quantity of groundwater and
alteration of spring discharge sites; by alterations to septic systems
that could adversely affect the water quality of Tumbling Creek; and by
other watershed and floodplain disturbances that release sediments or
nutrients into the water. Other activities that may affect PCEs in the
proposed critical habitat unit include those listed in the `` Effects
of Critical Habitat Designation'' section below.
The designation of critical habitat does not imply that lands
outside of critical habitat do not play an important role in the
conservation of the Tumbling Creek cavesnail. Activities with a Federal
nexus that may affect areas outside of critical habitat, such as
development; road construction and
[[Page 35756]]
maintenance; oil, gas, and utility easements; forest and pasture
management; maintenance of Bull Shoals Reservoir; and effluent
discharges, are still subject to review under section 7 of the Act if
they may affect the Tumbling Creek cavesnail, because Federal agencies
must consider both effects to the species and effects to critical
habitat independently. The Service should be consulted regarding
disturbances to areas both within the proposed critical habitat units
as well as areas within the recharge area of Tumbling Creek cave,
including springs and seeps that contribute to the instream flow in the
tributaries, especially during times when stream flows are abnormally
low (during droughts), because these activities may impact the
essential features of proposed critical habitat. The prohibitions of
section 9 of the Act against the take of listed species also continue
to apply both inside and outside of designated critical habitat.
Criteria Used to Identify Proposed Critical Habitat
As required by section 4(b) of the Act, we used the best scientific
and commercial data available in determining areas within the
geographical area occupied at the time of listing that contain the
physical and biological features essential to the conservation of the
Tumbling Creek cavesnail, and areas outside of the geographical area
occupied at the time of listing that are essential for the conservation
of the Tumbling Creek cavesnail. In order to determine which sites were
occupied at the time of listing, we used information from surveys
conducted by Greenlee (1974, pp. 9-11) and Ashley (2010, pers. comm.),
data summarized in the final listing rule (67 FR 52879), the Tumbling
Creek Cavesnail Recovery Plan (U.S. Fish and Wildlife Service 2003, pp.
1-13), and personal observations by cave owners Tom and Cathy Aley.
Currently, occupied habitat for the species is limited and isolated to
Tumbling Creek, from its emergence in Tumbling Creek Cave to its
confluence with Big Creek at Schoolhouse Spring.
Following the identification of the specific locations occupied by
the Tumbling Creek cavesnail, we determined the appropriate length of
occupied segments of Tumbling Creek by identifying the upstream and
downstream limits of these occupied sections necessary for the
conservation of the species. Because Tumbling Creek is intricately
linked with fractures in chert rock and associated springs and
underground portions that are inaccessible to humans, we determined
that currently occupied habitat would include the area from the
emergence of Tumbling Creek within Tumbling Creek Cave to its
confluence with Big Creek at Schoolhouse Spring. This determination was
made to ensure incorporation of all potential sites of occurrence.
These portions of Tumbling Creek, Owens Springs, and Schoolhouse
Springs were then digitized using 7.5' topographic maps and ArcGIS to
produce the critical habitat map.
We are proposing to designate as critical habitat all portions of
Tumbling Creek and the underground portions of Owens and Schoolhouse
Springs as occupied habitat. We have defined ``occupied habitat'' as
those stream reaches documented at the time of listing and all portions
of Tumbling Creek between its emergence in Tumbling Creek Cave and its
confluence with Big Creek at Schoolhouse Spring. Although there are
underground portions of Tumbling Creek that are inaccessible to humans,
the entire stream length is believed to be occupied by the Tumbling
Creek cavesnail; thus, the entire stream is believed to comprise the
entire known range of the Tumbling Creek cavesnail. We are not
proposing to designate any areas outside of those mentioned above,
because the species is still believed to be a site endemic, and surveys
in other nearby cave streams and springs have failed to find additional
populations (U.S. Fish and Wildlife Service 2003, p. 4).
The one proposed unit contains all of the PCEs in the appropriate
quantity and spatial arrangement essential to the conservation of this
species and supports all life processes for the Tumbling Creek
cavesnail.
Although the above ground recharge area of Tumbling Creek Cave has
been estimated to be 9 miles (14.5 kilometers) (U.S. Fish and Wildlife
Service 2003, p. 14) and is important to maintain the condition of
cavesnail habitat, such areas do not themselves contain the physical
and biological features essential to the conservation of the species.
To the best of our knowledge, there are no unoccupied areas that
contain one or more of the PCEs for the Tumbling Creek cavesnail. All
of the areas proposed as critical habitat for the Tumbling Creek
cavesnail are currently occupied by the species and contain the PCEs.
All of the areas proposed as critical habitat are also within the known
historical range of the species. Therefore, we are not proposing to
designate any areas outside the geographical area occupied by the
species at the time of listing. We believe that the occupied areas are
sufficient for the conservation of the species.
Habitat is dynamic, and species may move from one area to another
over time. In particular, we recognize that climate change may cause
changes in the arrangement of occupied habitat stream reaches. Climate
change may lead to increased frequency and duration of droughts (Rind
et al. 1990, p. 9983; Seager et al. 2007, pp. 1181-1184; Rahel and
Olden 2008, p. 526). Climate warming may increase the virulence of
nonnative parasites and pathogens to native species (Rahel and Olden
2008, p. 525), decrease groundwater levels (Schindler 2001, p. 22), or
significantly reduce annual stream flows (Moore et al. 1997, p. 925).
Increased drought conditions and prolonged low flows associated with
climate change may favor the establishment and spread of nonnative
species (Rahel and Olden 2008, pp. 526, 529-530). In the Missouri
Ozarks, it is projected that stream basin discharges may be
significantly impacted by synergistic effects of changes in land cover
and climate change (Hu et al. 2005, p. 9).
The information currently available on the effects of global
climate change and increasing temperatures does not make sufficiently
precise estimates of the location and magnitude of the effects. Nor are
we currently aware of any climate change information specific to the
habitat of the Tumbling Creek cavesnail that would indicate what areas
may become important to the species in the future. Nonetheless, because
the Tumbling Creek cavesnail is an aquatic snail that is totally
dependent upon an adequate water supply, adverse effects associated
with climate change that could significantly alter the quantity and
quality of Tumbling Creek could impact the species in the future. Other
than Tumbling Creek, we are currently unaware of any other cave stream
inhabited by the Tumbling Creek cavesnail. Therefore, we are unable to
determine which additional areas, if any, may be appropriate to include
in the proposed critical habitat for this species; however, we
specifically request information from the public on the currently
predicted effects of climate change on the Tumbling Creek cavesnail and
its habitat. Additionally, 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, especially if future surveys are successful in
documenting the species' presence in another cave stream. For these
reasons,
[[Page 35757]]
a critical habitat designation does not signal that habitat outside the
designated critical habitat area is unimportant or may not be required
for recovery of the species.
Areas that are important to the conservation of the species, but
are outside the critical habitat designation, will continue to be
subject to conservation actions we implement under section 7(a)(1) of
the Act. They are also subject to the regulatory protections afforded
by the section 7(a)(2) jeopardy standard, as determined based on the
best available scientific information at the time of the agency action.
Federally funded or permitted projects affecting listed species outside
their designated critical habitat areas may still result in jeopardy
findings in some cases. 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), section 7
consultations, or other species conservation planning efforts if new
information available at the time of these planning efforts calls for a
different outcome.
Proposed Critical Habitat Designation
We are proposing to designate one unit, totaling approximately 25
ac (10.12 ha), as critical habitat for the Tumbling Creek cavesnail.
The critical habitat unit described below constitutes our best
assessment of areas that currently meet the definition of critical
habitat for the Tumbling Creek cavesnail.
We present a brief description for the one unit and reasons why it
meets the definition of critical habitat below. The proposed critical
habitat unit includes the stream channel of Tumbling Creek to the
confluence of Schoolhouse Spring at Big Creek. For the one stream reach
proposed as a critical habitat, the upstream and downstream boundaries
are described generally below; more precise descriptions are provided
in the Proposed Regulation Promulgation at the end of this proposed
rule.
Unit 1: Tumbling Creek, Taney County, Missouri
Unit 1 includes the entire length of Tumbling Creek, from its
emergence in Tumbling Creek Cave (SE of the intersection of Routes 160
and 125) downstream to its confluence at Big Creek at Schoolhouse
Spring, encompassing 25 ac (10.12 ha). This section of Tumbling Creek
and associated springs are under private ownership by Tom and Cathy
Aley of the Ozark Underground Laboratory and contain all the PCEs for
the Tumbling Creek cavesnail.
Threats that may require special management and protection of PCEs
include: Actions associated with the management of water levels of Bull
Shoals Reservoir (such as increased sedimentation or bank erosion on
the terminal portions of Tumbling Creek from backwater flooding);
significant changes in the existing flow regime of Tumbling Creek, its
tributaries or associated springs; significant alteration of water
quality; significant alteration in the quantity of groundwater and
spring discharge sites; alterations to septic systems that could
adversely affect the quality of Tumbling Creek; other watershed and
floodplain disturbances that release sediments or nutrients into the
water; or the accidental introduction of nonnative aquatic species into
the stream due to backwater flooding of Bull Shoals Reservoir into
Tumbling Creek.
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that actions they fund, authorize, or carry out are
not likely to destroy or adversely modify critical habitat. Decisions
by the Fifth and Ninth Circuits Courts of Appeals have invalidated our
definition of ``destruction or adverse modification'' (50 CFR 402.02)
(see Gifford Pinchot Task Force v. U.S. Fish and Wildlife Service, 378
F.3d 1059 (9th Cir. 2004) and Sierra Club v. U.S. Fish and Wildlife
Service, 245 F.3d 434, 442 (5th Cir. 2001)), and we do not rely on this
regulatory definition when analyzing whether an action is likely to
destroy or adversely modify critical habitat. Under the statutory
provisions of the Act, we determine destruction or adverse modification
on the basis of whether, with implementation of the proposed Federal
action, the affected critical habitat would remain functional (or
retain the current ability for the PCEs to be functionally established)
to serve its intended conservation role for the species.
Section 7(a)(4) of the Act requires Federal agencies to confer with
the Service on any action that is likely to jeopardize the continued
existence of a species proposed for listing or result in destruction or
adverse modification of proposed critical habitat. Conference reports
provide conservation recommendations to assist the agency in
eliminating conflicts that may be caused by the proposed action. We may
issue a formal conference report if requested by a Federal agency.
Formal conference reports on proposed critical habitat contain an
opinion that is prepared according to 50 CFR 402.14, as if critical
habitat were designated. We may adopt the formal conference report as
the biological opinion when the critical habitat is designated, if no
substantial new information or changes in the action alter the content
of the opinion (see 50 CFR 402.10(d)). The conservation recommendations
in a conference report or opinion are strictly advisory.
If a species is listed or critical habitat is designated, section
7(a)(2) of the Act requires Federal agencies to ensure that activities
they authorize, fund, or carry out are not likely to jeopardize the
continued existence of the species or to destroy or adversely modify
its critical habitat. If a Federal action may affect a listed species
or its critical habitat, the responsible Federal agency (action agency)
must enter into consultation with us. As a result of this consultation,
we document compliance with the requirements of section 7(a)(2) through
our issuance of:
A concurrence letter for Federal actions that may affect,
but are not likely to adversely affect, listed species or critical
habitat; or
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 or
destroy or adversely modify critical habitat, we also provide
reasonable and prudent alternatives to the project, if any are
identifiable. We define ``reasonable and prudent alternatives'' at 50
CFR 402.02 as alternative actions identified during consultation that:
Can be implemented in a manner consistent with the
intended purpose of the action,
Can be implemented consistent with the scope of the
Federal agency's legal authority and jurisdiction,
Are economically and technologically feasible, and
Would, in the Director's opinion, avoid jeopardizing the
continued existence of the listed species or destroying or adversely
modifying critical habitat.
Reasonable and prudent alternatives can vary from slight project
modifications to extensive redesign or relocation of the project. Costs
associated with implementing a reasonable and prudent alternative are
similarly variable.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate
[[Page 35758]]
consultation on previously reviewed actions in instances where we have
listed a new species or subsequently designated critical habitat that
may be affected and the Federal agency has retained discretionary
involvement or control over the action (or the agency's discretionary
involvement or control is authorized by law). Consequently, Federal
agencies may sometimes need to request to reinitiate consultation with
us on actions for which formal consultation has been completed, if
those actions with discretionary involvement or control may affect
subsequently listed species or designated critical habitat.
Federal activities that may affect the Tumbling Creek cavesnail or
its designated critical habitat will require section 7 consultation
under the Act. Activities on State, Tribal, local, or private lands
requiring 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 us under section 10 of the Act or involving
some other Federal action (such as funding from the Federal Highway
Administration, Federal Aviation Administration, or the Federal
Emergency Management Agency)) are subject to the section 7 consultation
process. 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 permitted, do not require section
7 consultation.
Application of the ``Adverse Modification'' Standard
The key factor related to the adverse modification determination is
whether, with implementation of the proposed Federal action, the
affected critical habitat would continue to serve its intended
conservation role for the species, or would retain its current ability
for the essential features to be functionally established. Activities
that may destroy or adversely modify critical habitat are those that
alter the essential features to an extent that appreciably reduces the
conservation value of critical habitat for the Tumbling Creek
cavesnail.
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 destroy or
adversely modify such habitat, or that may be affected by such
designation.
Activities that, when carried out, funded, or authorized by a
Federal agency, may affect critical habitat and therefore result in
consultation for the Tumbling Creek cavesnail include, but are not
limited to:
Actions that would cause an increase in sedimentation to
areas of Tumbling Creek, its tributaries, and associated springs
occupied by the cavesnail. Such activities could include, but are not
limited to, alteration or maintenance of pool levels on Bull Shoals
Reservoir that causes backwater flooding of occupied habitat, or any
discharge of fill materials. Such activities occurring within the
recharge area of Tumbling Creek Cave may also impact the proposed
critical habitat. These activities could eliminate or reduce habitats
necessary for the growth and reproduction of the species by causing
excessive sedimentation and burial of the species or their habitats or
eliminate interstitial spaces needed by cavesnails.
Actions that would significantly alter the existing flow
regime of Tumbling Creek, its tributaries, and associated springs
occupied by the cavesnail. Such activities could include, but are not
limited to, alteration or maintenance of pool levels on Bull Shoals
Reservoir that significantly reduces the movement of water through
occupied cavesnail habitat. Such activities occurring within the
recharge area of Tumbling Creek Cave may also impact the proposed
critical habitat.
Actions that would significantly alter water chemistry or
water quality (for example, changes to temperature or pH, introduced
contaminants, excess nutrients) in Tumbling Creek, its tributaries, and
associated springs. Such activities could include, but are not limited
to, the release of chemicals, biological pollutants, or heated
effluents that are then introduced into Tumbling Creek, its
tributaries, and associated springs occupied by the cavesnail through
backwater flooding. Such activities occurring within the recharge area
of Tumbling Creek Cave may also impact the proposed critical habitat.
These activities could alter water conditions that are beyond the
tolerances of the species and result in direct or cumulative adverse
effects on the species and its life cycle. These activities could
eliminate or reduce habitats necessary for the growth and reproduction
of the species by causing eutrophication leading to excessive
filamentous algal growth. Excessive filamentous algal growth can cause
extreme decreases in nighttime dissolved oxygen levels through
vegetation respiration, and cover the bottom substrates and the
interstitial spaces needed by cavesnails.
Actions that could accidentally introduce nonnative
species into Tumbling Creek, its tributaries, and associated springs
occupied by the cavesnail via backwater flooding from Bull Shoals
Reservoir. Such activities occurring within the recharge area of
Tumbling Creek Cave may also impact the proposed critical habitat.
These activities could introduce a potential predator or outcompeting
aquatic invertebrate (for example, another species of cavesnail or
troglobitic invertebrate) or aquatic parasite.
Actions that could significantly alter the prey base of
bats. Energy input from bat guano is essential to the conservation of
Tumbling Creek cavesnail, such that adverse impacts to gray bat
populations in Tumbling Creek Cave could indirectly impact the
cavesnail. Such activities could include, but are not limited to,
alteration or maintenance of pool levels on Bull Shoals Reservoir that
significantly reduces the life cycles of the aquatic insects that are
needed by gray bats for food and the potential use of insecticides for
mosquito control.
Exemptions
Application of Section 4(a)(3) of the Act
The National Defense Authorization Act for Fiscal Year 2004 (Pub.
L. 108-136) amended the Act to limit areas eligible for designation as
critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16
U.S.C. 1533(a)(3)(B)(i)) now provides: ``The Secretary shall not
designate as critical habitat any lands or other geographical areas
owned or controlled by the Department of Defense, or designated for its
use, that are subject to an integrated natural resources management
plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if
the Secretary determines in writing that such plan provides a benefit
to the species for which critical habitat is proposed for
designation.''
There are no Department of Defense lands within the proposed
critical habitat designation for the Tumbling Creek cavesnail. As such,
we are not exempting any lands owned or managed by the Department of
Defense from this designation of critical habitat for the Tumbling
Creek cavesnail.
Exclusions
Application of Section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that the Secretary shall
designate or 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
impacts of specifying
[[Page 35759]]
any particular area as critical habitat. The Secretary may exclude an
area from critical habitat if he determines that the benefits of such
exclusion outweigh the benefits of specifying such area as part of the
critical habitat, unless he determines, based on the best scientific
and commercial data available, that the failure to designate such area
as critical habitat will result in the extinction of the species. In
making that determination, the legislative history is clear that the
Secretary has broad discretion regarding which factor(s) to use and how
much weight to give to any factor.
Under section 4(b)(2) of the Act, we may exclude an area from
designated critical habitat based on economic impacts, impacts on
national security, or any other relevant impacts. In considering
whether to exclude a particular area from the designation, we must
identify the benefits of including the area in the designation,
identify the benefits of excluding the area from the designation, and
determine whether the benefits of exclusion outweigh the benefits of
inclusion. If based on this analysis, we determine that the benefits of
exclusion outweigh the benefits of inclusion, we can exclude the area
only if such exclusion would not result in the extinction of the
species.
Economic Impacts
Under section 4(b)(2) of the Act, we consider the economic impacts of
specifying any particular area as critical habitat. In order to
consider economic impacts, we are preparing an analysis of the economic
impacts of the proposed critical habitat designation and related
factors.
We will announce the availability of the draft economic analysis as
soon as it is completed, at which time we will seek public review and
comment. At that time, copies of the draft economic analysis will be
available for download from the Internet at the Federal eRulemaking
Portal: http://www.regulations.gov, or by contacting the Columbia Fish
and Wildlife Office (see FOR FURTHER INFORMATION CONTACT). During the
development of a final designation, we will consider economic impacts,
public comments, and other new information, and as an outcome of our
analysis of this information, we may exclude areas from the final
critical habitat designation under section 4(b)(2) of the Act and our
implementing regulations at 50 CFR 424.19.
National Security Impacts
Under section 4(b)(2) of the Act, we consider whether there are
lands owned or managed by the Department of Defense (DOD) where a
national security impact might exist. In preparing this proposal, we
have determined that the lands within the proposed designation of
critical habitat for the Tumbling Creek cavesnail are not owned or
managed by the DOD, and we therefore anticipate no impact to national
security. Therefore, there are no areas proposed for exclusion based on
impacts to national security.
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. We consider a number of factors, including whether landowners
have developed any conservation plans or other management plans for the
area, or whether there are conservation partnerships that would be
encouraged by designation of lands for, or exclusion of lands from,
critical habitat. In addition, we look at any Tribal issues, and
consider the government-to-government relationship of the United States
with tribal entities. We also consider any social impacts that might
occur because of the designation.
In preparing this proposed rule, we have determined that there are
currently no conservation plans or other management plans for the
Tumbling Creek cavesnail, and the proposed designation does not include
any Tribal lands or trust resources. We anticipate no impact to Tribal
lands, partnerships, or management plans from this proposed critical
habitat designation. There are no areas proposed for exclusion from
this proposed designation based on other relevant impacts.
Notwithstanding these decisions, as stated in the Public Comments
section above, we are seeking specific comments on whether we should
exclude any areas proposed for designation under section 4(b)(2) of the
Act from the final designation.
Peer Review
In accordance with our joint policy published in the Federal
Register on July 1, 1994 (59 FR 34270), we are obtaining the expert
opinions of at least three appropriate independent specialists
regarding this proposed rule. The purpose of such review is to ensure
that our proposed actions are based on scientifically sound data,
assumptions, and analyses. We will invite these peer reviewers to
comment, during the public comment period, on our specific assumptions
and conclusions regarding the proposed designation of critical habitat.
We will consider all comments and information we receive during the
comment period on this proposed rule during our preparation of a final
rulemaking. Accordingly, the final decision may differ from this
proposal.
Public Hearings
The Act provides for one or more public hearings on this proposal,
if requested. Requests for public hearings must be made in writing
within 45 days of the publication of this proposal (see DATES and
ADDRESSES sections). We will schedule public hearings on this proposal,
if any are requested, and announce the dates, times, and places of
those hearings in the Federal Register and local newspapers at least 15
days before the first hearing.
Required Determinations
Regulatory Planning and Review--Executive Order 12866
The Office of Management and Budget (OMB) has determined that this
rule is not significant under Executive Order 12866 (E.O. 12866). OMB
bases its determination upon the following four criteria:
(a) Whether the rule will have an annual effect of $100 million or
more on the economy or adversely affect an economic sector,
productivity, jobs, the environment, or other units of the government.
(b) Whether the rule will create inconsistencies with other Federal
agencies' actions.
(c) Whether the rule will materially affect entitlements, grants,
user fees, loan programs, or the rights and obligations of their
recipients.
(d) Whether the rule raises novel legal or policy issues.
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
(SBREFA) of 1996), whenever an agency must 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 (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 RFA to
[[Page 35760]]
require Federal agencies to provide a statement of the factual basis
for certifying that the rule will not have a significant economic
impact on a substantial number of small entities.
At this time, we lack the specific information necessary to provide
an adequate factual basis for determining the potential incremental
regulatory effects of the designation of critical habitat for the
Tumbling Creek cavesnail to either develop the required RFA finding or
provide the necessary certification statement that the designation will
not have a significant impact on a substantial number of small business
entities. On the basis of the development of our proposal, we have
identified certain sectors and activities that may potentially be
affected by a designation of critical habitat for the Tumbling Creek
cavesnail. These sectors include industrial development and
urbanization along with the accompanying infrastructure associated with
such projects such as road, stormwater drainage, and bridge and culvert
construction and maintenance. We recognize that not all of these
sectors may qualify as small business entities. However, while
recognizing that these sectors and activities may be affected by this
designation, we are collecting information and initiating our analysis
to determine (1) Which of these sectors or activities are or involve
small business entities and (2) to what extent the effects are related
to the Tumbling Creek cavesnail's being listed as an endangered species
under the Act (baseline effects) or whether the effects are
attributable to the designation of critical habitat (incremental). We
believe that the potential incremental effects resulting from a
designation will be small. As a consequence, following an initial
evaluation of the information available to us, we do not believe that
there will be a significant impact on a substantial number of small
business entities resulting from this designation of critical habitat
for the Tumbling Creek cavesnail. However, we will be conducting a
thorough analysis to determine if this may in fact be the case. As
such, we are requesting any specific economic information related to
small business entities that may be affected by this designation and
how the designation may impact their business. Therefore, we defer our
RFA finding on this proposal designation until completion of the draft
economic analysis prepared under section 4(b)(2) of the Act and E.O.
12866.
As discussed above, this draft economic analysis will provide the
required factual basis for the RFA finding. Upon its completion, we
will announce availability of the draft economic analysis of the
proposed designation in the Federal Register, receive comments on it,
and also reopen the public comment period for the proposed designation.
We will include with this announcement, as appropriate, an initial
regulatory flexibility analysis or a certification that the rule will
not have a significant economic impact on a substantial number of small
entities accompanied by the factual basis for that determination. We
have concluded that deferring the RFA finding until completion of the
draft economic analysis is necessary to meet the purposes and
requirements of the RFA. Deferring the RFA finding in this manner will
ensure that we make a sufficiently informed determination based on
adequate economic information and provide the necessary opportunity for
public comment.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following findings:
(a) This 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; AFDC work
programs; Child Nutrition; Food Stamps; Social Services Block Grants;
Vocational Rehabilitation State Grants; Foster Care, Adoption
Assistance, and Independent Living; Family Support Welfare Services;
and Child Support Enforcement. ``Federal private sector mandate''
includes a regulation that ``would impose an enforceable duty upon the
private sector, except (i) a condition of Federal assistance or (ii) a
duty arising from participation in a voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not jeopardize the continued existence of
the species, or destroy or adversely modify critical habitat under
section 7 of the Act. 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 listing
these species or designating critical habitat shift the costs of the
large entitlement programs listed above on to State governments.
(b) We do not believe that this rule would significantly or
uniquely affect small governments because the Tumbling Creek cavesnail
primarily occurs in a privately owned cave stream. As such, a Small
Government Agency Plan is not required. However, we will further
evaluate this issue as we conduct our economic analysis and review and
revise this assessment as warranted.
Takings--Executive Order 12630
In accordance with E. O. 12630 (``Government Actions and
Interference with Constitutionally Protected Private Property
Rights''), we have analyzed the potential takings implications of
designating critical habitat for the Tumbling Creek cavesnail in a
takings implications assessment. The takings implications assessment
concludes that this designation of critical habitat for the Tumbling
Creek cavesnail does not pose significant takings implications for
lands within or affected by the designation.
Federalism--Executive Order 13132
In accordance with E. O. 13132 (Federalism), the rule does not have
significant Federalism effects. A Federalism assessment is not
required. In keeping with Department of the
[[Page 35761]]
Interior and Department of Commerce policy, we requested information
from, and coordinated development of this proposed critical habitat
designation with, appropriate State resource agencies in Missouri. The
critical habitat designation may have some benefit to this government
in that the areas that contain the features essential to the
conservation of the species are more clearly defined, and the habitat
features essential to the conservation of the species are specifically
identified. While the identification of the specific areas as critical
habitat does not alter where and what federally sponsored activities
may occur, it may assist these local governments in long-range planning
(rather than waiting for case-by-case section 7 consultations to
occur).
Where State and local governments require approval or authorization
from a Federal agency for actions that may affect critical habitat,
consultation under section 7(a)(2) of the Act would be required. While
non-Federal entities that receive Federal funding, assistance, or
permits, or that otherwise require approval or authorization from a
Federal agency for an action, may be indirectly impacted by the
designation of critical habitat, the legally binding duty to avoid
destruction or adverse modification of critical habitat rests squarely
on the Federal agency.
Civil Justice Reform--Executive Order 12988
In accordance with E.O. 12988 (Civil Justice Reform), the Office of
the Solicitor has determined that the rule does not unduly burden the
judicial system and that it meets the requirements of sections 3(a) and
3(b)(2) of the Order. We have proposed designating critical habitat in
accordance with the provisions of the Act. This proposed rule uses
standard property descriptions and identifies the PCEs within the
designated areas to assist the public in understanding the habitat
needs of the Tumbling Creek cavesnail.
Paperwork Reduction Act of 1995
This rule does not contain any new collections of information that
require approval by OMB under the Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.). This rule will not impose recordkeeping or
reporting requirements on State or local governments, individuals,
businesses, or organizations. An agency may not conduct or sponsor, and
a person is not required to respond to, a collection of information
unless it displays a currently valid OMB control number.
National Environmental Policy Act (NEPA)
It is our position that, outside the jurisdiction of the U.S. Court
of Appeals for the Tenth Circuit, we do not need to prepare
environmental analyses as defined by NEPA (42 U.S.C. 4321 et seq.) in
connection with designating critical habitat under the Act. We
published a notice outlining our reasons for this determination in the
Federal Register on October 25, 1983 (48 FR 49244). This position was
upheld by the U.S. Court of Appeals for the Ninth Circuit (Douglas
County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S.
1042 (1996)).
Clarity of the Rule
We are required by Executive Orders 12866 and 12988 and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This means that each rule we publish must:
(a) Be logically organized;
(b) Use the active voice to address readers directly;
(c) Use clear language rather than jargon;
(d) Be divided into short sections and sentences; and
(e) Use lists and tables wherever possible.
If you believe that we have not met these requirements, send us
comments by one of the methods listed in the ADDRESSES section. 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.
Government-to-Government Relationship with Tribes
In accordance with the President's memorandum of April 29, 1994,
``Government-to-Government Relations with Native American Tribal
Governments'' (59 FR 22951), E. O. 13175, and the Department of the
Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. In accordance with
Secretarial Order 3206 of June 5, 1997, ``American Indian Tribal
Rights, Federal-Tribal Trust Responsibilities, and the Endangered
Species Act,'' we readily acknowledge our responsibilities to work
directly with Tribes in developing programs for healthy ecosystems, to
acknowledge that tribal lands are not subject to the same controls as
Federal public lands, to remain sensitive to Indian culture, and to
make information available to Tribes.
We have determined that there are no tribal lands occupied at the
time of listing that contain the features essential for the
conservation of the Tumbling Creek cavesnail, and no tribal lands that
are unoccupied areas that are essential for the conservation of the
species. Therefore, we have not proposed designation of critical
habitat for the Tumbling Creek cavesnail on Tribal lands.
Energy Supply, Distribution, or Use
On May 18, 2001, the President issued an Executive Order (E.O.
13211; Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use) on regulations that significantly affect
energy supply, distribution, and use. E.O. 13211 requires agencies to
prepare Statements of Energy Effects when undertaking certain actions.
We do not expect this rule to significantly affect energy supplies,
distribution, or use. The proposed unit is remote from energy supply,
distribution, or use activities. Therefore, this action is not a
significant energy action, and no Statement of Energy Effects is
required. However, we will further evaluate this issue as we conduct
our economic analysis, and review and revise this assessment as
warranted.
References Cited
A complete list of all references cited in this proposed rulemaking
is available on the Internet at http://www.regulations.gov and upon
request from the Field Supervisor, Columbia Fish and Wildlife Office
(see FOR FURTHER INFORMATION CONTACT section).
Authors
The primary authors of this document are the staff members of the
Columbia Fish and Wildlife Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Proposed Regulation Promulgation
Accordingly, we propose to amend part 17, subchapter B of chapter
I, title 50 of the Code of Federal Regulations, as set forth below:
PART 17--[AMENDED]
1. The authority citation for part 17 continues to read as follows:
[[Page 35762]]
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
2. In Sec. 17.11(h), revise the entry for ``Cavesnail, Tumbling
Creek'' under ``SNAILS'' in the List of Endangered and Threatened
Wildlife to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species Vertebrate
------------------------------------------------ population where Critical
Historic range endangered or Status When listed habitat Special rules
Common name Scientific name threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
SNAILS
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Cavesnail, Tumbling Creek Antrobia culveri U.S.A. (MO) NA E 731 17.95(f) NA
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
3. In Sec. 17.95(f), add an entry for ``Tumbling Creek cavesnail
(Antrobia culveri)'' in the same alphabetical order as the species
appears in the table at Sec. 17.11(h), to read as follows:
Sec. 17.95 Critical habitat--fish and wildlife.
* * * * *
(f) Clams and Snails.
* * * * *
Tumbling Creek cavesnail (Antrobia culveri)
(1) The critical habitat unit is depicted for Taney County,
Missouri, on the map below.
(2) The primary constituent elements of critical habitat for the
Tumbling Creek cavesnail are:
(i) Geomorphically stable stream bottoms and banks (stable
horizontal dimension and vertical profile) in order to maintain bottom
features (riffles, runs, and pools) and transition zones between bottom
features; to continue appropriate habitat to maintain essential
riffles, runs, and pools; to promote connectivity between Tumbling
Creek and its tributaries and associated springs; and to maintain gene
flow throughout the population;
(ii) Instream flow regime with an average daily discharge between
0.07 and 150 cubic feet per second (cfs), inclusive of both surface
runoff and groundwater sources (springs and seepages);
(iii) Water quality with temperature between 55-62 [deg]F (12.78-
16.67[deg]C), dissolved oxygen 4.5 milligrams or greater per liter, and
turbidity of an average monthly reading of no more than 200
Nephelometric Turbidity Units (NTU; units used to measure sediment
discharge) for a duration not to exceed 4 hours;
(iv) Bottom substrates consisting of fine gravel with coarse gravel
or cobble, or bedrock with sand and gravel, with low amounts of fine
sand and sediments within the interstitial spaces of the substrates;
and
(v) Energy input from guano that originates mainly from gray bats
that roost in the cave; guano is essential in the development of
biofilm (the organic coating and bacterial layer that covers rocks in
the cave stream) that cavesnails use for food.
(3) Critical habitat does not include manmade structures (such as
buildings, aqueducts, runways, roads, and other paved areas) and the
land on which they are located existing within the legal boundaries on
the effective date of this rule.
(4) Critical habitat map unit. Data layers defining the map unit
were created using 7.5' topographic quadrangle maps and ArcGIS (version
9.3.1) mapping software.
(5) Tumbling Creek Cavesnail Critical Habitat Unit: Tumbling Creek,
Taney County, Missouri.
(i) [Reserved for textual description of Tumbling Creek Cavesnail
Critical Habitat Unit]
(ii) Note: Map of Tumbling Creek Cavesnail Critical Habitat Unit
follows:
[insert Map: Tumbling Creek Cavesnail Critical Habitat Unit]
BILLING CODE 4310-55-S
[[Page 35763]]
[GRAPHIC] [TIFF OMITTED] TP23JN10.005
* * * * *
Dated: June 15, 2010
Thomas L. Strickland,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2010-15252 Filed 6-22-10; 8:45 am]
BILLING CODE 4310-55-C