[Federal Register Volume 85, Number 38 (Wednesday, February 26, 2020)]
[Rules and Regulations]
[Pages 11238-11270]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-02281]
[[Page 11237]]
Vol. 85
Wednesday,
No. 38
February 26, 2020
Part III
Department of the Interior
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Fish and Wildlife Service
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50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Designation of Critical
Habitat for Black Pinesnake; Final Rule
Federal Register / Vol. 85 , No. 38 / Wednesday, February 26, 2020 /
Rules and Regulations
[[Page 11238]]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R4-ES-2014-0065; 4500090023]
RIN 1018-BD52
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for Black Pinesnake
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate
critical habitat for the black pinesnake (Pituophis melanoleucus
lodingi) under the Endangered Species Act (Act). In total,
approximately 324,679 acres (131,393 hectares) in Forrest, George,
Greene, Harrison, Jones, Marion, Perry, Stone, and Wayne Counties,
Mississippi, and in Clarke County, Alabama, fall within the boundaries
of the critical habitat designation. The effect of this regulation is
to designate critical habitat for the black pinesnake under the Act.
DATES: This rule becomes effective on March 27, 2020.
ADDRESSES: This final rule is available on the internet at http://www.regulations.gov at Docket No. FWS-R4-ES-2014-0065 and at http://www.fws.gov/mississippiES/. Comments and materials we received, as well
as some supporting documentation we used in preparing this rule, are
available for public inspection at http://www.regulations.gov. All of
the comments, materials, and documentation that we considered in this
rulemaking are available by appointment, during normal business hours
at: U.S. Fish and Wildlife Service, Mississippi ES Field Office, 6578
Dogwood View Parkway, Jackson, MS; telephone 601-321-1122.
The coordinates or plot points or both from which the maps are
generated are included in the administrative record for this critical
habitat designation and are available at http://www.regulations.gov at
Docket No. FWS-R4-ES-2014-0065, and at the Mississippi Field Office at
http://www.fws.gov/mississippiES/ (see FOR FURTHER INFORMATION
CONTACT). Any additional tools or supporting information that we
developed for this critical habitat designation will also be available
at the Fish and Wildlife Service website and Field Office set out
above, and may also be included in the preamble and at http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Stephen Ricks, Field Supervisor, U.S.
Fish and Wildlife Service, Mississippi Fish and Wildlife Office, 6578
Dogwood View Parkway, Jackson, MS; telephone 601-321-1122.
If you use a telecommunications device for the deaf (TDD), call the
Federal Relay Service at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. This document is a final rule to
designate critical habitat for the black pinesnake. Under the
Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.)
(Act), if we determine that a species species is endangered or
threatened, we must designate critical habitat to the maximum extent
prudent and determinable. Designations and revisions of critical
habitat can only be completed by issuing a rule. We, the U.S. Fish and
Wildlife Service (Service), listed the black pinesnake as a threatened
subspecies, with a rule issued under section 4(d) of the Act, on
October 6, 2015. On March 11, 2015, we published in the Federal
Register a proposed critical habitat designation for the black
pinesnake (80 FR 12846). Section 4(b)(2) of the Act states that the
Secretary shall designate 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 critical habitat areas we are designating in this rule
constitute our current best assessment of the areas that meet the
definition of critical habitat for the black pinesnake. We are
designating a total of approximately 324,679 acres (ac) (131,393
hectares (ha)) in eight units as critical habitat in Alabama and
Mississippi.
Peer review and public comment. We sought comments from independent
specialists to ensure that our designation is based on scientifically
sound data and analyses. We obtained opinions from six knowledgeable
individuals with scientific expertise to review our technical
assumptions, analysis, and whether or not we had used the best
scientific data available. These peer reviewers generally concurred
with our methods and conclusions and provided additional information,
clarifications, and suggestions to improve this final rule. Information
we received from peer review is incorporated in this final designation
of critical habitat. We also considered all comments and information
received from the public during the comment period for the proposed
designation of critical habitat.
Previous Federal Actions
On October 7, 2014 (79 FR 60406), we published a proposed rule to
list the black pinesnake as threatened. On, March 11, 2015 (80 FR
12846), we published a proposed rule to designate critical habitat for
the subspecies. On October 6, 2015 (80 FR 60468), we published the
final listing rule, which added the black pinesnake to the List of
Endangered and Threatened Wildlife in title 50 of the Code of Federal
Regulations at 50 CFR 17.11(h). On October 11, 2018 (83 FR 51418), we
reopened the public comment period on the proposed critical habitat
designation and associated draft economic analysis to revise two units
proposed in the original designation and to announce public
informational meetings on the proposed designation.
We published public notices in the Hattiesburg American on October
18, 2018, and the Clarke County Democrat on October 18, 2018. We held
the two public informational meetings within the subspecies' range with
one in Hattiesburg, Mississippi, on October 22, 2018, and a second one
on October 24, 2018 in Thomasville, Alabama.
All other previous Federal actions for the black pinesnake are
described in one or more of the documents discussed above.
Summary of Comments and Recommendations
We requested written comments from the public on the initial and
revised proposed designation of critical habitat for the black
pinesnake during two comment periods. The first comment period,
associated with the proposed critical habitat designation and
notification of the availability of the associated draft economic
analysis (80 FR 12846), opened on March 11, 2015, and closed on May 11,
2015. The second comment period, announcing a revised proposed
designation (83 FR 51418), opened on October 11, 2018 and closed on
November 13, 2018. We contacted appropriate Federal, State, and local
agencies; scientific organizations; and other interested parties, and
invited them to comment on the proposed critical habitat designation
and draft economic analysis during these comment periods. We also
received comments during our two informational meetings held during the
last open comment period in October 2018 in
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addition to addressing landowners' questions and concerns.
During the first comment period, we received 184 written comments
directly addressing the proposed critical habitat designation or the
draft economic analysis. During the second comment period, we received
15 comments directly addressing the revised proposed critical habitat
designation or the draft economic analysis. All substantive information
provided during comment periods either has been incorporated directly
into this final determination or is addressed in our responses below.
Peer Review
In accordance with our peer review policy published in the Federal
Register on July 1, 1994 (59 FR 34270), we solicited expert opinions
from six knowledgeable individuals with scientific expertise that
included familiarity with this or related subspecies, the geographic
region in which the subspecies occurs, and conservation biology
principles. We received responses from all six of the peer reviewers.
We reviewed all comments we received from the peer reviewers for
substantive issues and new information regarding critical habitat for
the black pinesnake. The peer reviewers generally concurred with our
methods and conclusions, and provided additional information,
clarifications, and suggestions to improve the final critical habitat
rule. Peer reviewer comments are addressed in the following summary and
incorporated into the final rule as appropriate.
Peer Reviewer Comments
Comment 1: Peer reviewers provided additional information and
suggestions for clarifying and improving the accuracy of the
information in the ``Physical or Biological Features (PBFs)'' and
``Criteria Used to Identify Critical Habitat'' sections of the proposed
rule.
Our Response: We appreciate these corrections and suggestions and
have made changes to this final rule to reflect the peer reviewers'
input. The significant changes are listed as part of the ``Summary of
Changes from Revised Proposed Rule,'' below.
Comment 2: Two peer reviewers stated that our characterization of
``open canopy'' as <=70 percent canopy coverage in our discussion of
target suitable black pinesnake habitat, under the ``Physical or
Biological Features'' section, and as a component of PBF 1, was not
appropriate. They stated that studies have shown that pinesnakes more
frequently use areas with <50 percent canopy coverage, which are more
conducive to the production of an ``abundant, diverse native
groundcover.''
Our Response: The literature varies as to what exact percentage of
canopy closure constitutes an open canopy. Therefore, we have removed
any reference to a specific value for canopy coverage that is
characteristic of optimal habitat for the black pinesnake in this final
rule. We have focused instead on the habitat metrics of percent mid-
story cover and percent herbaceous groundcover, which are the more
important indicators of optimal habitat for this subspecies and are the
by-products provided by an appropriately open-canopied forest, and
revised our characterization of PBF 1 accordingly.
Comment 3: Several peer reviewers questioned our usage of an
elevation threshold as a PBF necessary for the conservation of the
black pinesnake.
Our Response: We agree with the reviewers that, while almost all
locations of black pinesnakes (96%) were found to be above 150-ft
elevation during radio-telemetry studies (see data sources in
``Physical or Biological Features'' section), this should be
interpreted as an observation rather than a habitat requirement
necessary for the conservation of the subspecies. Thus, the elevation
threshold has been removed as a PBF in our final designation.
Comment 4: Two peer reviewers and several public commenters stated
that the 1990 record date for determining unit occupancy was
questionable, and another public commenter stated that there were too
few observations in two units to conclude that the areas still
supported a population. One of these peer reviewers suggested the date
of his most recent study (1998) was more appropriate than 1990.
Conversely, other peer reviewers stated that not having records for a
number of years in an area was not sufficient evidence to support the
claim that black pinesnakes have been extirpated from there if some
suitable habitat still exists.
Our Response: As we discussed in ``Population Estimates and
Status'' section, and also in our response to Comment 6 in our final
listing rule published in the Federal Register on October 6, 2015 (80
FR 60468), we used records dating back to the 1990s, which corresponds
to the information used by black pinesnake researchers to evaluate
habitat suitability and site occupancy across the range. Because
comprehensive surveys of these areas are rare, we included this same
dataset to meet the requirement of using the best scientific data
available; using records of pinesnakes found only after 1998 would not
meet this standard because they did not have a corresponding habitat
suitability analysis that was key to our delineating critical habitat.
These records and the researchers' reports, combined with new records
and our more recent habitat analysis, represent our most informed
evaluation of these areas, specifically since there have not been
recent range-wide trapping efforts targeting this subspecies.
We are not suggesting that the individual pinesnakes documented in
the 1990s are the same ones occupying the units today; a population
persisting at the site would likely be made up of the progeny of the
pinesnakes documented previously. For our initial analysis of all
potential critical habitat areas, the pinesnake records were the
primary indicator that the area could support the subspecies, followed
by a thorough analysis using updated GIS habitat information of the
units. If we found that sufficient forested habitat was still present
and available in the vicinity of where the pinesnakes had been
documented, we determined that there was a reasonable likelihood that
black pinesnake populations still occur in those areas. Evidence
supporting this line of reasoning is a record of a black pinesnake
documented in July of 2015 in Unit 7 (Jones Branch, Clarke County,
Alabama), verifying that pinesnakes still persist on the site even
though our other records (four) were from the mid-1990s and surveys in
2008-2009 (Barbour 2009, p. 12) had failed to locate pinesnakes at this
site with the notation that suitable habitat existed.
Comment 5: Two peer reviewers suggested we provide further
discussion on why all currently known locations were not designated
critical habitat and why the eight critical habitat units are
considered suitable and sufficient for the subspecies' conservation.
Our Response: We began our analysis in areas where at least two
black pinesnakes had been documented within close proximity to one
another (detailed in ``Criteria Used to Identify Critical Habitat''
section, below), since these areas have the highest potential of
containing a population. Coupled with an examination of available
habitat, we believe this focused analysis resulted in the appropriate
number, size, and proximity of critical habitat units necessary for the
long-term conservation of the subspecies. Several areas with black
pinesnake records were located in areas with only small amounts of
available habitat, lacking the PBFs essential for the long-term
persistence of the subspecies, primarily from fragmentation due to
urbanization or
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other incompatible land uses. In these areas, where we established that
suitable habitat had disappeared in proximity to pinesnake locality
records, we concluded that the area could no longer support a
population of black pinesnakes in the long term and, therefore, would
not be important for its recovery. We conclude that we can assure the
species' long-term conservation with focused recovery and protection
efforts in the eight critical habitat units designated.
Comment 6: Two peer reviewers stressed the importance of habitat
corridors and their contribution to recovery, and one peer reviewer
suggested that connectivity corridors between units be included as
critical habitat whenever possible, specifically stating the need for
such corridors between Units 3 and 4b and Units 1 and 2.
Our Response: We acknowledge that connectivity between populations
is a key component of maintaining lasting conservation for many
species, and it is our assessment that some of the larger critical
habitat units contain enough area where several viable populations of
black pinesnakes could persist and be connected. It is important to
identify areas where migration between populations may be possible for
exchange of genetic material. Our methodology for choosing and
delineating critical habitat units (see our response to Comment 5 above
and the ``Criteria Used to Identify Critical Habitat'' section, below)
is based on an assessment of areas occupied by black pinesnakes, with
sufficient habitat available in a forested condition to maintain a
viable population, based on our analysis of PBFs, population structure,
and reserve area requirements. Each critical habitat unit separately is
capable of supporting a viable population of black pinesnakes, and the
unit boundaries were limited by both natural and manmade barriers such
as rivers and highways as well as presence of essential habitat
features. Connectivity between areas with known pinesnake records was
maximized where these PBFs persisted, and delineation of critical
habitat unit outer boundaries represents where such features were no
longer found.
Comment 7: Four peer reviewers and several others commented on our
discussion relating to the viability of black pinesnake populations and
the subsequent calculation of a minimum reserve area used in our
critical habitat determination. Two of these peer reviewers disagreed
with our use of non-overlapping activity ranges in our minimum reserve
area estimate, based on our statement of territoriality in black
pinesnakes, which they disputed. Despite comments on our lack of
viability analysis information, two peer reviewers stated they
supported our minimum reserve area estimate, saying that it was as
precise as could be given our limited information, but that our
recommendation of 5,000 acres should definitely be considered a minimum
size threshold.
Our Response: We acknowledge that information such as species
viability indices related to abundance and reproductive success would
contribute to refining minimum reserve area, but such information is
lacking for this subspecies. Under the Act, we are charged with using
the best available scientific data in designation of critical habitat.
However, in response to comments, we reevaluated our estimate of the
minimum reserve area for the black pinesnake by conducting additional
literature review and analysis and have provided additional discussion
(see ``Space for Individual and Population Growth and for Normal
Behavior'' section, below). Upon further investigation of
territoriality in black pinesnakes, we concluded that it had not been
proven conclusively; therefore, we adjusted our models to calculate
minimum reserve area estimates using partially overlapping polygons
instead of non-overlapping polygons.
We corroborated our value of minimum reserve area (discussed in
``Criteria Used To Identify Critical Habitat'', below) using a
population size of 50 individuals, as this number has been previously
proposed as a minimum effective population size for many vertebrate
species (Franklin 1980, p. 147). Similar to a method used for Florida
pinesnakes (P.m. mugitus) by Miller (2008, pp. 27-28), we digitized 50
150-acre (40.5-ha) polygons, and partially overlapped them to get a
total reserve area. The 150-acre size represents black pinesnake mean
home ranges described in the literature (Duran 1998a, p. 19; Yager et
al. 2005, p. 27). This exercise using varying degrees of overlap
between the home range polygons yielded total estimates between 4,500
to 6,000 ac (1,619 to 2,428 ha), thereby supporting our initial
estimate of a 5,000-acre minimum reserve area.
Comment 8: One peer reviewer requested that the activity of
stumping be included in our adverse modification standard language as
an activity that significantly alters the suitability of habitat for
the black pinesnake and should prompt consultation with the Service.
Pine stump holes have been specifically highlighted as one of the
principal PBFs necessary for the conservation of the subspecies;
therefore, the importance of protecting them cannot be overstated. The
adverse modification standard in our proposed rule mentions activities
that would significantly alter the suitability of pinesnake habitat,
including silvicultural activities that involve ground disturbance, but
the peer reviewer felt the list of activities should be more specific.
Our Response: As we discussed in our final listing rule published
in the Federal Register on October 6, 2015 (80 FR 60468), we replaced
``activities causing ground disturbance'' with a more focused statement
of those ``activities causing significant subsurface disturbance''
under the possible section 9 violations, and for consistency have made
the same change to our list of possible activities that may result in
adverse modification in this final critical habitat rule. There are
several types of activities that can be termed ``stumping'' and not all
would necessarily cause significant subsurface disturbance. One of
these is a practice of harvesting green pine stumps, whereby several
lateral roots are cut prior to the stump being extracted. In this
particular activity, those lateral roots are left intact to eventually
rot or burn out to become tunnels and potential pinesnake refugia.
However, other types of stumping involving whole root ball removal
(where all roots are forcibly extracted) would meet the definition of
significant subsurface disturbance. Therefore, this type of activity
will be clarified and added to the adverse modification section below.
Comment 9: Two peer reviewers stated that within our ``Criteria
Used to Identify Critical Habitat'' section, the 100-meter buffer
placed along all Class 1 and 2 roads to help delineate critical habitat
units was arbitrary and not based on any literature pertaining to the
distance where effects from roads impact snake populations.
Our Response: The 100-meter buffer given to all Class 1 and 2 roads
in our designation of critical habitat units was not based on the
maximum distance where impacts from roads affect black pinesnake
populations (see ``Criteria Used To Identify Critical Habitat''
section). The roads themselves were deleted from the critical habitat
polygons the same way attempts were made to avoid other urban
structures, and a buffer was placed on either side of these major roads
large enough to encompass most rights-of-way, commercial businesses,
and residences. Through spatial analysis and aerial imagery this
distance was
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approximately 100 meters, so that value was used as a buffer around
roads for the purpose of delineating the unit polygons and ensuring
that the lands that we included in critical habitat did not include
areas that we determined did not contribute to the conservation of the
species.
Federal Agency Comments
Comment 10: The Department of Defense, Army National Guard (DoD)
opposed designation of critical habitat in areas within the Camp Shelby
Joint Forces Training Center (hereafter Camp Shelby) in Forrest,
George, and Perry Counties, Mississippi. DoD is concerned that the
designation may delay or impair the ability of the Army to conduct
effective training (due to the requirement for additional
consultation); may require restrictions for training exercises; and
will subsequently limit the installation's utility for military
training. Currently, most of Camp Shelby is designated for military use
under a Special Use Permit (permit) from the U.S. Forest Service
(USFS), and DoD is requesting that all of Camp Shelby be excluded from
black pinesnake critical habitat, as authorized by section 4(b)(2) of
the Act, due to significant national security concerns.
Our Response: The Department of Defense has an permit from USFS to
conduct military exercises within critical habitat Unit 3 on the De
Soto National Forest in Forrest, George, and Perry Counties,
Mississippi. Lands within this permit area that overlap with Unit 3 and
are owned by the State of Mississippi or DoD (4,054 ac [1,641 ha]) are
exempted from critical habitat designation due to their inclusion in
Camp Shelby's Integrated Natural Resources Management Plan (INRMP; see
Application of Section 4(a)(3) of the Act under Exemptions, below).
Additionally, in the proposed critical habitat rule (80 FR 12846
published in the Federal Register on March 11, 2015), we proposed
excluding the area known as the Camp Shelby Impact Area (4,647 ac
[1,880 ha]) under section 4(b)(2) of the Act. Further assessment of the
area has expanded the section excluded under section 4(b)(2) to include
not just the Impact Area, but also the lands surrounding it, known as
the Camp Shelby Impact Area Buffer Zone (total acreage of 14,862 ac
[6,014 ha]) (see Exclusions Based on Impacts on National Security and
Homeland Security under Exclusions, below).
The lands in this zone encompass a large percentage of the
artillery ranges on the installation; therefore, they are prone to
regular range fires that maintain it as highly suitable black pinesnake
habitat. While evaluating this area, we determined that because it
would continue to be maintained as suitable pinesnake habitat due to
the range fires, and because the Service has discretion in removing
lands from critical habitat when designating them would impact national
security and homeland security, that the removal of these lands was
appropriate. Some of these lands overlap with those exempted under
section 4(a)(3), so the total area in Unit 3 on Camp Shelby that is
either excluded or exempted from critical habitat designation with this
final critical habitat designation is 18,901 ac (7,649 ha). As to the
remaining area, the Service does not expect critical habitat to affect
ongoing military operations over and above the existing protections
resulting from the listing of the subspecies.
Because the entire critical habitat unit is considered occupied by
the black pinesnake, the Service anticipates that impacts from critical
habitat will be limited to administrative impacts (IEc 2014). Any
additional incremental impacts to military activities are not expected
because areas we designated as black pinesnake critical habitat areas
on Camp Shelby are within the same habitats shared by other listed
species (i.e., gopher tortoise, dusky gopher frog (critical habitat),
red-cockaded woodpecker). As discussed in the economic analysis, the
Service anticipates only 2 formal consultations and fewer than 13
informal consultations on military operations at Camp Shelby that will
consider pinesnake critical habitat. The results of the economic
analysis further supports that the additional per-consultation
administrative effort is likely to be minor for both formal and
informal consultations; therefore, these efforts are unlikely to result
in time delays.
Comments From States
Section 4(b)(5)(A)(ii) of the Act requires the Service to give
actual notice of any designation of lands that are considered to be
critical habitat to the appropriate agency of each State in which the
species is believed to occur, and invite each such agency to comment on
the proposed regulation. Only the Louisiana Department of Wildlife and
Fisheries (LDWF) provided comment specifically on the proposed critical
habitat designation, stating that it did not support designation of
critical habitat in Louisiana due to a lack of current occurrence data
for the black pinesnake, which was consistent with our proposed
designation.
Public Comments
General Comments Issue 1: Procedural and Legal Issues
Comment 11: Several commenters stated that the Service should not
designate critical habitat on private lands.
Our Response: According to section 4(a)(3)(A) of the Act, the
Secretary of the Interior shall, to the maximum extent prudent and
determinable, concurrently with making a determination that a species
is an endangered species or a threatened species, designate critical
habitat for that species. As directed by the Act, we proposed as
critical habitat those areas occupied by the species at the time of
listing and that contain the physical or biological features essential
for the conservation of the species, which may require special
management considerations or protection.
Although the Act does not provide for any distinction between
landownerships in those areas that meet the definition of critical
habitat, it does allow the Secretary to exclude specific areas from the
final critical habitat designation if the benefits of excluding it
outweigh the benefits of including it in critical habitat, unless that
exclusion would result in the extinction of the species. In this
instance, no private lands were excluded from the designation, although
lands on Camp Shelby were excluded due to national security impacts.
The designation of critical habitat on private land has no impact
on individual landowner activities unless they involve Federal funding,
permits or activities. Critical habitat designation does not affect
land ownership or establish a refuge, reserve, preserve or other
conservation area. Critical habitat designation informs landowners and
the public of which specific areas are important to black pinesnake
conservation and recovery, but landowners will not be required to
convert their land to longleaf pine forests or to conduct black
pinesnake monitoring as a result of this designation.
Comment 12: A private forestry association stated that critical
habitat designation was unnecessary because the section 4(d) rule
provided for the protection of the black pinesnake.
Our Response: When a species is federally listed, protections go
into effect, both for the species and its habitat. In 2015, the Service
listed the black pinesnake with a 4(d) rule, which exempted certain
management activities from take prohibitions under section 9 of the Act
that provided an overall conservation benefit to the species [refer
[[Page 11242]]
to our October 6, 2015, final listing rule (80 FR 60468)]. However, the
Service has an additional obligation under the Act to designate
critical habitat for a listed species when prudent and determinable.
Critical habitat designation focuses on the overall recovery needs of
the species and provides additional protection to a species, as Federal
agencies are required to ensure that projects they authorize, fund, or
undertake do not adversely modify or destroy critical habitat. Our
economic analysis (IEc 2014a), in concluding that the incremental
impacts from critical habitat designation were minimal, cited the
extensive baseline protection provided to the species based on its
listing and presence in the units. However, critical habitat provides
other benefits to the species, including serving to educate the public
of the potential conservation value of an area, which aids in focusing
and promoting conservation efforts.
Comment 13: Several commented that the Service failed to contact
all landowners potentially affected by the proposed designation of
critical habitat.
Our Response: The Act requires that we publish the proposed
regulation in the Federal Register, give actual notice of the proposed
regulation to each affected State and county (i.e., those in which the
species is believed to occur) and appropriate professional
organizations, and publish a summary of the proposed regulation in a
newspaper of general circulation in each area of the country where the
species is believed to occur. We attempted to ensure that as many
people as possible would be aware of the proposed critical habitat
designation and draft economic analysis by issuing press releases to
major media in the affected area, submitting newspaper notices for
publication within areas of proposed critical habitat, and directly
notifying affected State and Federal agencies, environmental groups,
State Governors, Federal and State elected officials, county
commissions, academia, and interested parties. Additionally, we opened
a second comment period, for which we sent out notifications to
commenters from the first comment period that supplied their contact
information. We went further in our communication efforts by announcing
and holding two public informational meetings on our proposed critical
habitat designation in areas central to the proposed critical habitat
lands. By these actions, we have complied with or exceeded all of the
notification requirements of the Act and the Administrative Procedure
Act (5 U.S.C. subchapter II).
General Comments Issue 2: Science
Comment 14: A number of commenters stated that there was adequate
critical habitat being designated in Mississippi on the De Soto
National Forest (Federal lands); therefore, it was not necessary to
have any critical habitat units on private lands in Clarke County,
Alabama.
Our Response: As discussed in response to Comment 11 above, the
statutory definition of critical habitat does not include considering
land ownership. Critical habitat is a conservation tool, whose measures
contribute to reaching recovery until the point at which the measures
provided under the Act are no longer necessary. This is a broader
standard than simply survival and requires the Service to designate
critical habitat that will support recovery of the species. De Soto
National Forest (DNF) represents only one area within the distribution
of the black pinesnake. DNF has the most robust populations and is
crucial to the persistence of the species; however, recovery of the
species will require populations of black pinesnakes distributed across
the species' range, representative of its genetic variability. The
location of populations across a broader range will provide for
population expansion and also serve as a buffer in the event of local
catastrophic events (also see Comment 5, above). A critical habitat
designation helps to protect the areas, under various land ownerships,
necessary to conserve a species. Critical habitat has value in
requiring the Service to analyze and present more detailed information
about the specific features of habitat that a species needs than is
required for listing, thereby increasing knowledge to share with
Federal agencies--and, in turn, increasing their effectiveness to
conserve a listed species.
Comment 15: Several commenters stated that a recovery plan was
needed prior to designating critical habitat, and in the absence of a
recovery plan, the benefits of the critical habitat designation were
questionable.
Our Response: During the process of developing a recovery plan, as
required by section 4(f) of the Act, the Service determines the
threshold that must be met to establish when a species is no longer
``endangered'' or ''threatened.'' The Service has not yet completed a
recovery plan for the black pinesnake, and thus, this threshold has not
been identified. However, the Act does not require that recovery
criteria be established as a precondition to designating critical
habitat. Section 3(5)(A)(i) of the Act defines the term ``critical
habitat'' as 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 essential to the conservation of the
species and which may require special management considerations or
protection. Thus, the Act directs us to designate critical habitat at
the time that a species is listed, to the extent prudent and
determinable, and does not allow for us to postpone such action until a
recovery plan can be developed, which usually occurs witin a few years
of listing. The Act does not provide additional guidance on how to
determine what habitat is essential for the conservation of the
species, nor does it require a minimum population and habitat viability
analysis for critical habitat designation. In this case, the Secretary
has discretion in determining what is essential for the conservation of
a species based on the best available information. The identification
of multiple populations known to be occupied at the time of listing is
critical to protect the species from extinction and provide for the
species' eventual recovery. Therefore, the Service believes that all
the areas designated as critical habitat meet the definition under
section 3(5)(A) of the Act. If the Service gains knowledge of
additional areas that meet the definition of critical habitat, then
under section 4(a)(3)(A)(ii) of the Act, the Secretary may revise the
designation, as appropriate. The Service has articulated a basis for
designating each unit as critical habitat under the individual unit
descriptions in the ``Final Critical Habitat Designation'' section
below.
General Comments Issue 3: Private Land Issues
Comment 16: A number of commenters stated that critical habitat
designation on private land would prevent timber management on those
lands or dictate that they be managed in a way to benefit the black
pinesnake. One commenter specified that they will now need to undertake
modified management practices (e.g., elimination of clearcutting on
ridgetops, conversion to longleaf pine forest, and adjustments to
stocking levels). Another commenter stated that designation on private
lands would prohibit beneficial practices to improve wildlife and
natural resources, such as invasive species control and feral hog
control.
Our Response: When prudent, the Service is required to designate
critical habitat under the Act; however, the Act does not authorize the
Service to regulate private actions on private lands
[[Page 11243]]
or confiscate private property as a result of critical habitat
designation (see response to Comment 11, above). We acknowledge that
special management consideration or protection is needed to maintain
the PBFs; however, critical habitat designation does not require
proactive implementation of restoration, recovery, enhancement or other
special management measures by private landowners; in other words, it
does not shift the responsibility of recovery to the private landowner.
Where a landowner 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) of the Act apply, but even
in the event of a destruction or adverse modification finding, the
obligation of the Federal action agency and the landowner is not to
restore or recover the species, but to implement reasonable and prudent
alternatives to avoid destruction or adverse modification of critical
habitat. Management to control invasive species is expected to improve
habitat for the black pinesnake and, therefore, would be encouraged
within designated critical habitat and throughout the range of the
subspecies, but would not be required.
Comment 17: Several commenters stated that proposed critical
habitat Units 7 and 8 in Clarke County, Alabama, do not meet the
criteria established for critical habitat since they do not contain all
the PBFs described in the rule. Commenters stated that much of the area
in both units had been converted to loblolly pine at higher densities
to increase economic gain, thus creating conditions that do not support
black pinesnakes. One commenter stated that Unit 8 also does not have
the correct soils as described in PBF 3. Another commenter requested
that several hundred acres of land under Unit 2 be removed due to the
presence of wetlands and its management for pine production.
Our Response: During the process of delineating critical habitat,
the Service assesses habitat to determine if it is essential for the
conservation of a listed species. In order to meet the criteria of
``essential,'' the Service describes the PBFs such as those needed for
normal feeding, breeding, sheltering, and population growth. Following
publication of the proposed critical habitat rule, and a review of
comments, we revised the PBFs slightly (see Comments 1 and 2). Only one
PBF needs to be found in a specific area for that area to be considered
critical habitat; however, we have determined that all PBFs, as
currently described, are present in all designated units (see
discussions under ``Final Critical Habitat Designation''). This does
not mean that we expect every acre within a unit to be characterized as
having all the PBFs consistently throughout. Portions of the critical
habitat units that do not have the total PBF requirements for black
pinesnakes (e.g., wetlands and urban areas), although they are within a
critical habitat polygon, are not considered critical habitat for the
subspecies. Our analysis of soil maps, assessments in monitoring
reports (Barbour 2009, p. 13), and soil suitability reports (Service
2012) support our conclusion that Unit 8 contains suitable soils
described in PBF3.
Comment 18: Several commenters suggest the designation of critical
habitat creates disincentives for landowners to manage their forest
stands in a manner beneficial to the species (e.g., by restoring and
conserving longleaf pine forests). The reasoning behind this is the
idea that by ``creating'' unsuitable habitat a landowner would not have
to contend with any perceived regulatory issues with the Federal
Government. As an example of this effect, one organization notes past
experience with the listing of the red-cockaded woodpecker (RCW), where
landowners shortened stand rotations in order to avoid providing
favorable habitat for the species. As further evidence of the
disincentivizing effect of regulatory interventions, a second
organization states that since 2017, the number of longleaf pine acres
planted annually throughout Mississippi as part of a State-run cost-
share program has decreased by more than half compared to the previous
5-year average, and that this decrease was directly attributable to the
listing of the black pinesnake.
Our Response: We are aware of the changes in land management
practices that resulted from the listing of the RCW. Because critical
habitat has not been designated for the RCW, these effects were based
solely on the decision to list the species under the Act. In light of
these continued perceptions, we feel it is important to reiterate that,
in the absence of a Federal nexus, the designation of critical habitat
has no direct regulatory impact on private landowners. As discussed in
the response to Comment 16 above, critical habitat designation does not
mean a private landowner has a new obligation for recovery of that
species, nor does it mean that it must maintain habitat suitable for
that species. Many landowners who have economic objectives as a higher
priority than wildlife objectives probably do not have much suitable
habitat for black pinesnakes anyway; however, if they choose to manage
for the species there are cost-share programs available that assist
with managing for the native ecosystem (longleaf pine forest), as well
as Safe Harbor Agreements with the Service.
Referencing the latter part of the comment about a decrease in
longleaf pine acres planted, there have been several fluctuations in
numbers of acres in longleaf pine planted on private lands since the
black pinesnake was listed under the Act in 2015 (80 FR 60486). There
was a 125% increase in longleaf establishment acres on private lands in
Mississippi in the year following the pinesnake being listed (2016
versus 2015; America's Longleaf Restoration Initiative), and although
acreages reported in 2017 and 2018 were back down close to those
reported in 2015, there are many variables affecting fluctuations in
acreage of longleaf pine trees planted year-to-year. These variables
include saturated markets, reduced capacity of various agencies (e.g.,
reduced workforce or resources), and re-focusing agency resources on
management (e.g., prescribed fire, thinning) instead of longleaf
establishment; therefore, to associate acreage fluctuations with a
single event (i.e., the listing of the black pinesnake) would be
inaccurate. Under Natural Resources Conservation Service (NRCS) Farm
Bill programs in Mississippi promoting longleaf pine to private
landowners (i.e., Longleaf Pine Initiative and Working Lands for
Wildlife), twice as many acres of longleaf pine were established in
2018 versus 2017 (Costanzo 2019, p. 1), supporting the argument that
the listing of the black pinesnake under the Act has not
disincentivized private landowners from creating habitat suitable for
the subspecies.
General Comments Issue 4: Economic Analysis
Comment 19: One commenter asked whether an economic analysis had
been conducted for the black pinesnake critical habitat designation.
Our Response: The Service conducted an economic analysis for
designation of black pinesnake critical habitat, which began by
preparing an ``Incremental Effects Memorandum'' (IEM) describing how
critical habitat for the black pinesnake will be implemented. This
memorandum provided the basis for a screening analysis of potential
economic impacts of the proposed critical habitat rule, prepared by
independent consultants. The combination of the IEM and the screening
analysis, titled
[[Page 11244]]
``Screening Analysis of Likely Economic Impacts of Critical Habitat
Designation for the Black Pinesnake,'' (IEc 2014a) represents the
Service's economic analysis. Both documents were released for public
comment with the proposed rules on March 11, 2015, and again on October
11, 2018. The minor changes proposed in the second comment period (83
FR 51418, October 11, 2018) were not substantial enough to justify
producing a revised Economic Screening Analysis (see Comment 21,
below).
Comment 20: One commenter stated that the Service should consider
costs associated with listing in the economic analysis.
Our Response: Section 4(b)(1) of the Act specifically states that
determinations for listing are to be based solely on the best
scientific and commercial information available after conducting a
review of the status of the species and after taking into account
conservation measures by States or foreign nations. As mandated in
section 4(b)(2), our economic analysis considers the economic impacts
of the proposed critical habitat designation involving evaluating
``without critical habitat'' baseline versus the ``with critical
habitat'' scenario (see Consideration of Economic Impacts section for
additional discussion) to ensure that we are capturing costs associated
with designation of critical habitat as required by the statute.
Comment 21: Several commenters expressed concern that the economic
analysis had underestimated the economic impacts of the designation of
critical habitat. One commenter stated that an economic analysis that
fails to account for any effect on private lands is incomplete and
fails to meet the requirements of the Act.
Our Response: The economic analysis forecasts the likely costs and
benefits of the critical habitat designation for the black pinesnake
using the best readily available information, and the commenters did
not provide additional information that could be used to revise this
analysis. Because the entirety of critical habitat is occupied by the
pinesnake, significant baseline protections already exist throughout
the proposed designation due to its status as a threatened species
under the Act (see Comment 12, above). We find that the section 7-
related costs of designating critical habitat for the pinesnake are
likely to be limited to additional administrative effort to consider
adverse modification in consultation and are likely to be less than
$190,000 in the first year following the publication of the final rule
(the year with the highest anticipated costs). This is due to the
anticipation of no direct impacts of the designation to forestry, which
is the main land use (see our response to Comment 16, above). The
economic analysis prepared for this rule includes the costs to private
landowners of future section 7 consultations and bounds the potential
diminution of property values by estimating the total value of these
acres. In addition, the economic analysis investigates the possible
impacts of public perception (e.g., reductions in land value based on
the perception that critical habitat imposes use limitations on private
property) using the total value of developable land near the proposed
designation. As described in section 4 of the economic analysis, data
limitations prevent the quantification of possible perception-related
effects or its attenuation rate.
Comment 22: Commenters suggested that with the October 2018
reopening of the public comment period, the Service added acreage to
proposed critical habitat without balancing considerations of the
economic issues resulting from this designation.
Our Response: On October 11, 2018, the Service reopened the public
comment period for the May 11, 2015, proposed designation of critical
habitat for the black pinesnake. At that time, we proposed revised
boundaries for Unit 8 (Fred T. Stimpson Special Opportunity Area (SOA))
in Clarke County, Alabama, resulting in smaller acreage on private land
and more acres on State-owned land, with a net increase of
approximately 279 acres. As described in the October 11, 2018, Federal
Register document, we determined that some of the best habitat, located
at the southern end of the Stimpson SOA, had not been incorporated in
Unit 8, and other land located at the northern end of the unit had been
included in error. Federal nexuses are rare within State SOAs, thus
additional consultations, as associated with section 7 costs in the
newly added area, are unlikely. We concluded that these minor
adjustments in the Unit 8 boundary were not significant enough to
warrant a new economic analysis.
Comment 23: Many commenters expressed concern that the designation
of critical habitat for the black pinesnake would affect the ability of
private landowners, including small landowners, to manage their lands
for forestry and timber harvest. In particular, several commenters
expressed concern that the designation of critical habitat would affect
landowners' ability to generate income from their lands, noting that
this could have cascading effects on future generations, local property
tax revenue, and the local economy.
Our Response: The Service acknowledges that private forestry is an
important aspect of the local economy. As noted earlier in Comment 16,
the Act does not authorize the Service to regulate private actions on
private lands or establish specific land management standards or
prescriptions for private landowners. We do not anticipate that
critical habitat designation will affect current timber management
activities since critical habitat designation applies only to those
actions with a Federal nexus (funding, authorization, or action by a
Federal agency) that would destroy or adversely modify critical
habitat. Section 1 of the economic analysis identifies the activities
considered for the analysis, including timber management. Section 3 of
the economic analysis outlines the substantial baseline protections
afforded the pinesnake throughout the critical habitat area. These
baseline protections result from the 2015 listing of the pinesnake,
with the section 4(d) rule, under the Act; the presence of the species
in all critical habitat units; as well as overlap with habitat of other
listed species and designated critical habitat. As a result of these
protections, the economic analysis concludes that incremental impacts
associated with section 7 consultations for the pinesnake are likely
limited to additional administrative effort on the part of Federal
agencies. The Service does not anticipate requesting modifications for
forest management activities on private lands because of the
designation of critical habitat. As a result, impacts to income or tax
revenue described by the commenters are not anticipated.
Comment 24: Multiple commenters expressed concern that the
designation of critical habitat for the pinesnake could decrease the
value of designated lands. In particular, one commenter stated that,
given the choice between two identical properties, an investor will
invariably purchase the property with no critical habitat over one
designated as critical habitat. The commenter went on to state that a
methodology for estimating these costs must be developed and used.
Our Response: The Service recognizes that such effects are
possible. Specifically, section 4 of the economic analysis considers
possible perception-related effects of critical habitat designation on
the value of private property. The analysis acknowledges that public
attitudes about the limits and costs that the Act may impose can cause
real economic effects to the
[[Page 11245]]
owners of property, regardless of whether such limits are actually
imposed. These effects may result from the perception that critical
habitat will preclude, limit, or slow development, or somehow alter the
highest and best use of the property. As described in section 4 of the
economic analysis, data limitations prevent the quantification of the
possible incremental reduction in private property values or its
attenuation rate. However, section 4, footnote 45 references a separate
memorandum (IEc 2014b) prepared for the Service providing additional
detail. In that memorandum, titled ``Supplemental Information on Land
Values--Critical Habitat Designation for the Black Pinesnake,'' the
economic consultants review the available literature to identify
existing methods for estimating the impact of public perception of the
encumbrance imposed by critical habitat on private property values, and
the limitations of available data. Furthermore, the memorandum provides
a detailed analysis of the total value of potentially affected private
acres using two separate data sources of forest land values in
Mississippi and Alabama. By providing an estimate of the total value of
potentially affected private acres, we provide an upper bound on the
possible magnitude of this impact.
However, the analysis also describes the uncertainty associated
with this upper bound and several factors that suggest the actual
magnitude of the portion of the effect attributable to the critical
habitat designation will be lower. These factors include the
community's experience with the Act, understanding of the degree to
which future section 7 consultations could delay or affect land use
activities, and substantial baseline conservation already in place for
the black pinesnake due to its listed status, as well as protections
for the federally listed gopher tortoise, red-cockaded woodpecker, and
dusky gopher frog.
Comment 25: Some commenters requested that landowners be
compensated for loss of private property rights or financial losses
that could happen as a result of the designation of critical habitat
for the black pinesnake.
Our Response: As stated previously in Comment 16, the critical
habitat designation does not authorize the Service to regulate private
actions on private lands, nor is it considered confiscation of private
property. Designation of critical habitat does not affect land
ownership, or establish any closures, or restrictions on use of or
access to the designated areas. Critical habitat designation also does
not establish specific land management standards or prescriptions,
although Federal agencies are prohibited from carrying out, funding, or
authorizing actions that would destroy or adversely modify critical
habitat. Thus, the designation of critical habitat does not deny anyone
economically viable use of their property.
Our economic analysis concluded that financial impacts from
critical habitat for the pinesnake are likely limited, borne primarily
by the Service and Federal action agencies. Although it is possible
(see response to Comment 24, above) that public perception of potential
regulatory constraints imposed by critical habitat could also adversely
affect property values, a similar effect could result from the listing
of the species, or the presence of other listed species and critical
habitat designations.
Comment 26: Commenters expressed concern that the designation of
critical habitat would reduce land managers' flexibility in managing
forested habitat on the State of Mississippi's 16th Section lands and
on Wildlife Management Areas (WMAs) to meet their respective
objectives. Forests on 16th Section lands are highly valued timber
tracts that are intensively managed to provide a significant amount of
income for public schools in Mississippi, and WMAs are often owned by
multiple landowners and managed for varied economic and wildlife
objectives.
Our Response: The Service acknowledges the importance to local
communities of income generated on 16th Section lands from
silvicultural activities, as well as the importance to the public of
WMAs for hunting, fishing, recreation, and other uses. As discussed in
Comment 16, we do not anticipate that critical habitat designation will
affect current habitat management activities, particularly with respect
to timber management, because critical habitat designation only applies
to those actions with a Federal nexus (funding, authorization, or
action by a Federal agency) that would destroy or adversely modify
critical habitat.
Comment 27: One commenter states it is speculative to conclude that
a Federal nexus is unlikely to be triggered on private forest lands.
Federal consultation has been triggered in the context of family-owned
timberlands in the past and will likely continue to occur in the
future.
Our Response: The Service agrees with the statement that
consultations have occurred on private land in the past and will likely
occur in the future. However, consultation with the Service is not done
directly with the private landowner; it is done with the responsible
Federal agency (action agency) involved in the Federal permit, license,
or funding. Where a landowner 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) of
the Act would apply, but even in the event of a destruction or adverse
modification finding, the obligation of the Federal action agency and
the landowner is not to restore or recover the species. Instead, it is
to implement reasonable and prudent alternatives to avoid destruction
or adverse modification of critical habitat. 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.)), but even where the action is
likely to destroy or adversely modify critical habitat, the Service
works with the agency and landowners to amend the project to enable it
to proceed without adversely affecting critical habitat. Most Federal
projects are likely to go forward, but some may be modified to minimize
adverse effects to the species and its critical habitat.
Summary of Changes From Revised Proposed Rule
We reviewed the above-described site-specific comments related to
critical habitat for this subspecies, completed our analysis of areas
considered for exclusion under section 4(b)(2) of the Act and for
exemptions under section 4(a)(3) of the Act, reviewed our analysis of
the PBFs essential to the long-term conservation of the black
pinesnake, reviewed the application of our criteria for identifying
critical habitat across the range of this subspecies to refine our
designation, and completed the economic analysis of the designation as
proposed. This final rule incorporates changes to our proposed critical
habitat rule based on the comments that we received, and have responded
to in this document, and considers efforts to conserve the black
pinesnake.
As a result, our final designation of critical habitat reflects the
following changes from the March 11, 2015, proposed rule (80 FR 12846)
and the October 11, 2018, revisions to the proposed designation (83 FR
51418):
Primary Constituent Elements (PCEs) are referred to as
Physical and Biological Features (PBFs) in our final rule.
Based on information we received from peer reviewers, we
removed the
[[Page 11246]]
reference to territoriality in the subspecies; although there is some
evidence that black pinesnakes may exhibit territoriality, it has not
been demonstrated definitively.
The habitat management activity of clearcutting was
removed from the list of activities seen as threats to the black
pinesnake and its habitat. While we recognize that some clearcut
harvesting may have a negative impact on black pinesnake habitat, at
other times it is a necessary management tool to restore a forest to a
condition suitable for pinesnakes and other native wildlife. This is
consistent with the language in our final listing rule.
We have refined our description of PBF 1 to remove the
characterization of ``open canopy'' pine forest as a specific
percentage and have instead relied on the percentage metrics for mid-
story and groundcover (within an open-canopied pine forest) to best
define the habitat structure important to the subspecies.
We have revised PBF 2 and removed the reference to
topographic features, specifically the elevation threshold of 150 ft
(46 m) or greater. PBF 2 now only references refugia sites since the
elevation threshold was determined to be more of an observation rather
than a habitat requirement.
Throughout the descriptions of PBFs, we removed specific
characterization of these features within longleaf pine forests.
Although longleaf pine is the preferred canopy species for the long-
term conservation of the black pinesnake (see the final listing rule
published in the Federal Register on October 6, 2015 (80 FR 60468)), we
recognize that it is primarily the structure of the forest that
provides for the PBFs, and this structure is not exclusive to longleaf
pine forests. However, these features must occur within areas
historically dominated by longleaf pine.
Within Unit 3 (Camp Shelby), we excluded the Camp Shelby
Impact Area (4,647 ac [1,880 ha]), as proposed in our original critical
habitat rule (80 FR 12846, March 11, 2015), and upon further assessment
of this area excluded additional acreage known as the Camp Shelby
Impact Area Buffer Zone for a total exclusion of 14,862 ac (6,014 ha)
of Camp Shelby lands under section 4(b)(2) of the Act (see Exclusions
Based on Impacts on National Security and Homeland Security under
Exclusions, below).
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 does not allow the government
or public to access private lands. Such designation does not require
implementation of restoration, recovery, or enhancement measures by
non-Federal landowners. Where a landowner requests Federal agency
funding or authorization for an action that may affect a listed species
or critical habitat, the Federal agency would be required to consult
with the Service under section 7(a)(2) of the Act. However, even if the
Service were to conclude that the proposed activity would result in
destruction or adverse modification of the critical habitat, the
Federal action agency and the landowner are not required to abandon the
proposed activity, or to restore or recover the species; instead, they
must implement ``reasonable and prudent alternatives'' to avoid
destruction or adverse modification of critical habitat.
Under the first prong of the Act's definition of critical habitat,
areas within the geographical area occupied by the species at the time
it was listed are included in a critical habitat designation if they
contain physical or biological features (1) which are essential to the
conservation of the species and (2) which may require special
management considerations or protection. For these areas, critical
habitat designations identify, to the extent known using the best
scientific and commercial data available, those physical or biological
features that are essential to the conservation of the species (such as
space, food, cover, and protected habitat). In identifying those
physical or biological features within an area, we focus on the
specific features that support the life-history needs of the species,
including but not limited to, water characteristics, soil type,
geological features, 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.
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. For example, an area currently occupied by the species but
that was not occupied at the time of listing may be essential to the
conservation of the species and may be included in the critical habitat
designation.
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)),
[[Page 11247]]
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 species status assessment (SSA) document and
information developed during the listing process for the species.
Additional information sources may include any generalized conservation
strategy, criteria, or outline that may have been developed for the
species, the recovery plan for the species, articles in peer-reviewed
journals, conservation plans developed by States and counties,
scientific status surveys and studies, biological assessments, other
unpublished materials, or experts' opinions or personal knowledge.
Habitat is dynamic, and species may move from one area to another
over time. We recognize that critical habitat designated at a
particular point in time may not include all of the habitat areas that
we may later determine are necessary for the recovery of the species.
For these reasons, a critical habitat designation does not signal that
habitat outside the designated area is unimportant or may not be needed
for recovery of the species. Areas that are important to the
conservation of the species, both inside and outside the critical
habitat designation, will continue to be subject to: (1) Conservation
actions implemented under section 7(a)(1) of the Act, (2) regulatory
protections afforded by the requirement in section 7(a)(2) of the Act
for Federal agencies to ensure their actions are not likely to
jeopardize the continued existence of any endangered or threatened
species, and (3) section 9 of the Act's prohibitions on taking any
individual of the species, including taking caused by actions that
affect habitat. 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 this
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 these planning
efforts calls for a different outcome.
On August 27, 2019, we published a final rule in the Federal
Register (84 FR 45020) to amend our regulations concerning the
procedures and criteria we use to designate and revise critical
habitat. That rule became effective on September 26, 2019, but, as
stated in that rule, the amendments it sets forth apply to ``rules for
which a proposed rule was published after September 26, 2019.'' We
published our proposed critical habitat designation for the black
pinesnake on March 11, 2015 (80 FR 12846); therefore, the amendments
set forth in the August 27, 2019, final rule at 84 FR 45020 do not
apply to this final designation of critical habitat for the black
pinesnake.
Physical or Biological Features
In accordance with section 3(5)(A)(i) of the Act and regulations at
50 CFR 424.12(b), in determining which areas within the geographical
area occupied by the species at the time of listing to designate as
critical habitat, we consider the physical or biological features
(PBFs) that are essential to the conservation of the species and which
may require special management considerations or protection. For
example, physical features might include gravel of a particular size
required for spawning, alkali soil for seed germination, protective
cover for migration, or susceptibility to flooding or fire that
maintains necessary early-successional habitat characteristics.
Biological features might include prey species, forage grasses,
specific kinds or ages of trees for roosting or nesting, symbiotic
fungi, or a particular level of nonnative species consistent with
conservation needs of the listed species. The features may also be
combinations of habitat characteristics and may encompass the
relationship between characteristics or the necessary amount of a
characteristic needed to support the life history of the species. In
considering whether features are essential to the conservation of the
species, the Service 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.
We derive the specific PBFs essential for the black pinesnake from
studies of the subspecies and other similar species' habitat, ecology,
and life history as described below. Additional information can be
found in the final listing rule published in the Federal Register on
October 6, 2015 (80 FR 60468) and the proposed critical habitat rule
published in the Federal Register on March 11, 2015 (80 FR 12846). We
have determined that the following PBFs are essential for the black
pinesnake:
Space for Individual and Population Growth and for Normal Behavior
Telemetry studies and previous records indicate that the black
pinesnake prefers an open canopy, a reduced midstory, and a dense
herbaceous cover typical of a classic longleaf pine forest (see the
``Habitat'' and ``Life History'' sections of the final listing rule).
An abundant herbaceous groundcover is typical of those areas
characterized by a more open-canopied condition, as a byproduct of the
increased amount of sunlight reaching the forest floor. As an ectotherm
(an organism that regulates its body temperature (i.e.,
thermoregulates) primarily by exchanging heat with its surroundings),
the black pinesnake requires this open condition to provide
thermoregulatory opportunities, and possibly to provide proper
incubation temperatures for nests.
Studies of black pinesnakes have supported this subspecies'
preference for a relatively open canopy and reduced mid-story shrub
cover (Duran 1998b, pp. 4-8; Baxley et al. 2011, p. 154). Values for
these landscape features reflecting habitat structure have been
estimated for the black pinesnake by looking to habitat conditions
described for the threatened gopher tortoise (Gopherus polyphemus), a
species sharing the same habitat within the same geographic range in
the longleaf pine ecosystem. Management plans for the tortoise include
targets for open-canopied upland longleaf pine forest with shrub cover
of <10 percent, and a herbaceous groundcover of at least 40 to 50
percent (Florida Fish and Wildlife Conservation Commission (FWCC) 2012,
p. 42; U.S. Forest Service 2014, p. 14; Service 2014, p. 1). These same
metrics are all indicative of the forest
[[Page 11248]]
structure in suitable black pinesnake habitat as well.
Longleaf pine ecosystems have historically been maintained with
fire, as it is necessary for exposing bare mineral soil for seed
germination, increasing nutrient content in forage species, and
reducing competition of hardwood species (DeBerry and Pashley 2008, pp.
20-21). Prescribed burning during the growing season (late spring to
early summer) is more effective at controlling mid-story hardwood
vegetation, thereby promoting a more abundant herbaceous groundcover;
however, some understory plants respond positively to fires in the
dormant season as well (Knapp et al. 2009, p. 2). Therefore, fire
regimes should optimally incorporate variability in their seasonality
and intensity, as a heterogeneous fire regime is likely to maximize
plant biodiversity (Knapp et al. 2009, p. 3). Management of upland
longleaf pine forests should include a fire return interval of 1 to 3
years (FWCC 2012, p. 42; U.S. Forest Service 2014, p. 14), primarily
conducted in the growing season but with variable seasonality and
intensity in the fire regime to promote the open-canopied condition and
abundant, diverse forage species that sustain the prey base (small
mammals) for black pinesnakes.
A broad distribution of home ranges has been estimated from various
telemetry studies, from a mean Minimum Convex Polygon (MCP) (a
mathematical tool for determining home range boundaries by connecting
the outer location points) value of 106 acres (ac) (43 hectares (ha))
for adult female pinesnakes (Duran 1998a, p. 19) to a mean MCP value of
551 ac (223 ha) for adult male pinesnakes (Baxley and Qualls 2009, p.
287). The maximum home range reported for an individual black pinesnake
in the literature is 979 ac (396 ha) for an adult male, and the maximum
distance between consecutive locations in a telemetry study (reported
as a straight-line distance) was 1.3 miles (2.1 kilometers) (Baxley and
Qualls 2009, pp. 287-288). Examination of MCP areas for black
pinesnakes occupying the same general area shows very little overlap of
home ranges, potentially providing some evidence for territoriality
(Duran 1998a, p. 15) although more research is needed.
The minimum amount of habitat necessary to support a viable black
pinesnake population (known as the minimum reserve area) has not
previously been determined, and estimating those parameters can be
quite challenging, primarily based on the elusive nature of the
subspecies (Wilson et al. 2011, pp. 42-43). We estimated a minimum
black pinesnake reserve area by modeling the total area covered by two
partially overlapping, circular activity ranges whose radius equals the
maximum known movement distance for the subspecies (1.3 miles (2.1 km);
see discussion under Criteria Used To Identify Critical Habitat). The
resulting area of 5,000 ac (2,023 ha) is considered to be a minimum
population reserve area for the black pinesnake, as long as the area is
not highly fragmented (see discussion under Criteria Used to Identify
Critical Habitat). Fragmentation by roads, urbanization, or
incompatible habitat conversion continues to be a major threat
affecting the subspecies (see Factor E. Other Natural or Manmade
Factors Affecting Its Continued Existence in the final listing rule).
We corroborated this value of minimum reserve area using a method
previously used for Florida pinesnakes (P.m. mugitus). Miller (2008,
pp. 27-28) calculated a minimum reserve area of approximately 7,413 ac
(3,000 ha) by overlaying the non-overlapping home ranges of 50 Florida
pinesnakes, using this population number because it has been previously
proposed as a minimum effective population size for many vertebrate
species (Franklin 1980, p. 147). Our analysis using this same
population size (50) was adjusted to use partially overlapping polygons
(instead of non-overlapping) that were approximately 150 ac (40.5 ha)
in size, representing the mean home range for black pinesnakes
described in the literature (Duran 1998a, p. 19; Yager et al. 2005, p.
27). This modeling exercise using varying degrees of overlap between
the polygons yielded total estimates between 4,500 to 6,000 ac (1,619
to 2,428 ha), thereby supporting our initial estimate of a 5,000-acre
minimum reserve area.
For further comparison we investigated the population requirements
of another large-bodied, wide-ranging snake with expansive home ranges
that is also a longleaf pine ecosystem specialist, the threatened
eastern indigo snake (Drymarchon couperi; listed as Drymarchon corais
couperi). Moler (1992, p. 185) recommended that large tracts of land
(>=2,500 ac (1,012 ha)) should be protected in order to have a high
probability of sustaining populations of eastern indigo snakes long
term. Sytsma et al. (2012, pp. 39-40) estimated a reserve area of
10,000 ac (4,047 ha) to be sufficiently large to support a small
population of eastern indigo snakes. Although the eastern indigo
snake's home ranges are larger than the black pinesnake's, these
studies support the need for sizeable areas to support large, wide-
ranging snake species sensitive to landscape fragmentation. Thus, based
on these estimates of eastern indigo snake reserve area, and the
available long-distance movement data and home range sizes for the
black pinesnake, we believe that 5,000 ac (2,023 ha) of suitable
habitat is an appropriate estimate of the minimum reserve area for a
population of black pinesnakes.
Food, Water, Air, Light, Minerals, or Other Nutritional or
Physiological Requirements
Black pinesnakes consume a variety of food, including nestling
rabbits (Sylvilagus aquaticus), bobwhite quail (Colinus virginianus)
and their eggs, and eastern kingbirds (Tyrannus tyrannus) (Vandeventer
and Young 1989, p. 34; Yager et al. 2005, p. 28); however, rodents
represent the most common type of prey. The majority of documented prey
items are hispid cotton rats (Sigmodon hispidus), various mice species
(Peromyscus spp.), and to a lesser extent eastern fox squirrels
(Sciurus niger) (Rudolph et al. 2002, p. 59; Yager et al. 2005, p. 28).
The hispid cotton rat was the most frequently trapped small mammal
within black pinesnake home ranges (Duran 1998a, p. 34), and the core
home ranges of telemetered black pinesnakes had higher mammal abundance
(especially hispid cotton rats) compared with areas on the periphery of
the snakes' home ranges (Baxley and Qualls 2009, p. 291).
To provide the refugia and food needed to support the rodent prey
base of black pinesnakes, the habitat must have an abundant herbaceous
groundcover. Bluestem grasses (Andropogon and Schizachyrium sp.)
typically represent the dominant groundcover species of the open-
canopied longleaf pine habitat within the geographic range of the black
pinesnake, and bluestem grass stems are a primary food of the hispid
cotton rat (Miller and Miller 2005, p. 202). Black pinesnakes more
frequently occupy forested habitats with significantly higher cover of
herbaceous understory vegetation and avoid areas with significantly
higher percentages of leaf litter (Duran 1998a, p. 11; Baxley et al.
2011, p. 161; Smith 2011, pp. 86 and 100).
Therefore, based on the information above, we identify open-
canopied pine forest habitat, historically dominated by longleaf pine
and maintained by frequent fires, a reduced midstory (<10 percent), and
a diverse and abundant native herbaceous groundcover (>40 percent) to
be the PBFs necessary for the conservation of the black pinesnake.
[[Page 11249]]
These pine forests should be primarily unfragmented and occupy at least
5,000 ac (2,023 ha) in area.
Cover or Shelter
Black pinesnakes spend a majority of their time below ground (Duran
1998a, p. 12; Yager et al. 2005, p. 27; Baxley and Qualls 2009, p.
288). The subterranean environments most commonly used by black
pinesnakes are burned-out or rotted-out pine stump holes (Duran 1998a,
p. 12; Yager et al. 2005, p. 27; Baxley and Qualls 2009, p. 288). Where
pine stumps have become limited, black pinesnakes may use gopher
tortoise and nine-banded armadillo (Dasypus novemcinctus) burrows more
frequently; however, the large diameters of these burrows might allow
access to a wide array of potential predators (Rudolph et al. 2007, p.
563).
Rudolph et al. (2007, pp. 560-565) excavated five black pinesnake
winter refugia (overwintering sites) used for significant periods of
time from late fall through early spring. They were found to be located
exclusively in chambers formed by the decay and burning of longleaf
pine stumps and root tunnels, at depths of 3.5 to 14 inches (in) (9 to
35 centimeters (cm)) below the surface (Rudolph et al. 2007, pp. 560-
561). There is evidence for site fidelity towards specific winter
refugia sites in the genus Pituophis, specifically for northern
pinesnakes. Burger et al. (2012, p. 600) documented hibernacula use by
northern pinesnakes over a 26-year period in New Jersey, and they
determined that even when known hibernacula do not get used for a year,
those hibernacula have a 37 percent chance of being used the following
year. Data on black pinesnake habitat use document site fidelity in
this subspecies as well: Black pinesnakes have been shown to return to
the same general location during monitoring and even to the same stump
hole (Yager et al. 2006, pp. 34-36; Baxley and Qualls 2009, p. 288).
These data on microhabitat use reinforce the importance of locating and
protecting known refugia, regardless of the seasonality of their use.
Therefore, based on the information above, we identify the presence
of naturally burned-out or rotted-out pine stumps and their associated
root systems within historically longleaf-dominated pine forests, to be
a PBF for this subspecies.
Sites for Breeding, Reproduction, or Rearing (or Development) of
Offspring
Very little information on breeding and egg-laying of wild black
pinesnakes is available. Lyman et al. (2007, pp. 40-42) documented
mating activities at the entrance to armadillo burrows, and Lee (2007,
p. 93) described mating in a pair of black pinesnakes above ground, but
in the vicinity of a rotted-out pine root system that the pair
subsequently occupied. The only documented natural nest for the
subspecies is a clutch of six recently hatched black pinesnake eggs
found 29 in (74 cm) below the soil surface at the end of a juvenile
gopher tortoise burrow (burrow width: 2.5 in (6 cm)) in Perry County,
Mississippi (Lee et al. 2011, p. 301). The microhabitat within the
tortoise burrow likely provides a suitable microclimate for egg
incubation in warm climate areas (Lee et al. 2011, p. 301). Female
northern pinesnakes excavate tunnels and nest chambers for egg
deposition (Burger and Zappalorti 1992, p. 331), but it is unknown
whether female black pinesnakes excavate their own nests or only use
and modify existing tunnels.
Since there is only one documented natural black pinesnake nest, it
is unknown whether the subspecies exhibits nest site fidelity; however,
nest site fidelity has been described for other Pituophis species and
subspecies. Burger and Zappalorti (1992, pp. 333-335) conducted an 11-
year study of nest site fidelity of northern pinesnakes in New Jersey
and documented the exact same nest site being used for 11 years in a
row, evidence of old eggshells in 73 percent of new nests, and
recapture of 42 percent of female snakes at prior nesting sites.
In addition to the stump holes and associated root systems commonly
used by adult black pinesnakes (Duran 1998a, p. 12; Yager et al. 2005,
p. 27; Baxley and Qualls 2009, p. 288), yearling and young juvenile
black pinesnakes frequently use small mammal burrows, specifically
eastern mole (Scalopus aquaticus) tunnels, as retreat sites (Lyman et
al. 2007, pp. 39-41). Because of this documented use and modification
of existing burrow and tunnel systems, it is necessary for black
pinesnakes to have access to areas with sandy soils for ease of
excavation.
Appropriate soils have been described for the gopher tortoise and
are recognized as one of their key habitat requirements, as they allow
for burrow excavation and nest development (Ernst et al. 1994, p. 466).
Gopher tortoises typically occur where soils have high sand content,
low clay content, and little to no stones or gravel; the soils are
often well-drained, and are deep to a water table (Service 2012, p. 3).
When sufficient sunlight reaches the forest floor, sandy soils also
promote herbaceous groundcover (component of PBF 1) as food for rodents
(primary prey of the black pinesnake), and provide the appropriate
environment for egg incubation and hatching (Service 2012, p. 3).
Because black pinesnakes share a requirement for sandy soils with the
gopher tortoise, and the two occur within the same habitat,
characteristics of suitable gopher tortoise soils can also be used to
describe appropriate black pinesnake soils. These soil characteristics
include: (1) No flooding or ponding; (2) <15 percent medium and coarse
gravel fragments; (3) >60 in (152 cm) depth to seasonal high water
table (elevation to which the ground or surface water can be expected
to rise due to a normal or wet season); (4) >60 in (152 cm) depth to
the hardpan (dense layer of soil impervious to plant roots and water);
(5) textural components equaling >30 percent sand and <35 percent clay;
and (6) a slope <15 percent (Service 2012, p. 6). The association of
black pinesnakes using these soil types is corroborated by Duran
(1998b, p. 15), which showed that snakes spent most of their time on
well-drained soils determined to be appropriate for gopher tortoises.
Therefore, based on the information above, we identify sandy, well-
drained soils characteristic of historically longleaf-dominated upland
pine forest to be a PBF for this subspecies. These specific soil series
and related soil associations have the following characteristics: No
flooding or ponding; <15 percent medium and coarse gravel fragments;
>60 in (152 cm) depth to seasonal high water table; >60 in (152 cm)
depth to the hardpan; textural components equaling >30 percent sand and
<35 percent clay; and a slope <15 percent.
Summary of Physical or Biological Features
We have determined the following PBFs for the black pinesnake:
(1) PBF 1: Tract size and habitat structure. A pine forest,
historically dominated by longleaf pine and maintained by frequent
fire, primarily having the following characteristics:
(a) An open canopy that sustains a reduced woody mid-story (<10
percent cover) and abundant, diverse, native herbaceous groundcover (at
least 40 percent cover); and
(b) Minimum of 5,000 ac (2,023 ha) of mostly unfragmented habitat.
(2) PBF 2: Refugia sites. Naturally burned-out or rotted-out pine
stumps and their associated root system tunnels, in pine forests
historically dominated by longleaf pine.
(3) PBF 3: Soils. Deep, sandy, well-drained soils characteristic of
longleaf pine forests:
(a) No flooding or ponding;
[[Page 11250]]
(b) <15 percent medium and coarse gravel fragments;
(c) >60 in (152 cm) depth to seasonal high water table;
(d) >60 in (152 cm) depth to the hardpan;
(e) Textural components equaling >30 percent sand and <35 percent
clay; and
(f) A slope <15 percent.
Additional information can be found in the final listing rule and
the proposed critical habitat designation for the black pinesnake.
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 that are essential to the conservation of
the species and which may require special management considerations or
protection.
All areas designated as critical habitat require some level of
management to address the current and future threats to the black
pinesnake and to maintain the PBFs. Special management of the upland
longleaf pine forest would be needed to ensure an open canopy, reduced
mid-story, and abundant herbaceous groundcover (PBF 1); underground
refugia for snakes to occupy (PBF 2); and relatively unfragmented
tracts of pine forests (PBF 1).
A detailed discussion of activities affecting the black pinesnake
and its habitat can be found in the final listing rule published in the
Federal Register on October 6, 2015 (83 FR 51418). The features
essential to the conservation of this subspecies may require special
management considerations or protection to reduce threats posed by:
Land use conversion, primarily urban development and conversion to
agriculture and pine plantations; timber management practices such as
disking, bedding, and stumping involving whole root ball removal that
may cause significant subsurface disturbance; fire suppression and low
fire frequencies; random effects of drought or floods; encroachment of
invasive species; fragmentation from new roads or development; road
mortality; and creation of utility pipelines and powerlines.
Management activities that could ameliorate these threats include
(but are not limited to): Maintaining critical habitat areas as open
pine habitat (preferably longleaf pine); conducting forestry management
using frequent prescribed burning (1 to 3 years) with seasonal
variability; avoiding intensive site preparation that would disturb or
destroy pine stumps or stump holes; avoiding the practice of bedding
when planting trees; reducing planting densities to create or maintain
an open canopied forest with abundant herbaceous groundcover;
maintaining forest underground structure such as gopher tortoise
burrows and small mammal burrows; and retaining large tracts of
unfragmented pine forest by protecting sites from development and new
road construction. More information on the special management
considerations for each critical habitat unit is provided in the
individual unit descriptions below.
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. As discussed below, we are not
designating any areas outside the geographical area occupied by the
species because we have determined that occupied areas are sufficient
for the conservation of the species.
Areas Occupied at the Time of Listing
We began our determination of which areas to designate as critical
habitat for the black pinesnake with an assessment of the critical
life-history components of the subspecies, as they relate to habitat.
We reviewed the available information pertaining to historical and
current distributions, life histories, and habitat requirements of this
subspecies. We focused on the identification of large tracts of
remaining unfragmented open pine habitat in our analysis because they
are requisite sites for population survival and conservation and their
disappearance in the environment is one of the primary reasons that the
black pinesnake is declining. Our sources included surveys, unpublished
reports, and peer-reviewed scientific literature prepared by the
Alabama Department of Conservation and Natural Resources; Alabama
Natural Heritage Program; Mississippi Department of Wildlife,
Fisheries, and Parks Natural Heritage Program; and black pinesnake
researchers. Other sources are Service data and Geographic Information
System (GIS) data (such as species occurrence data, elevation contours,
soils, transportation, urban areas, National Wetland Inventory, 2011
National Land Cover Database, aerial imagery, ownership maps, and U.S.
Geological Survey (USGS) Terrestrial Ecosystems data).
For estimation of activity ranges of black pinesnakes, we used a
modified methodology of establishing species occurrence areas, which
was informed by the methodology the New Jersey Department of
Environmental Protection (NJDEP) uses for northern pinesnakes. These
areas are derived by placing circular buffers around documented
locations, in order to approximate typical activity ranges (NJDFW 2009,
p. 17). There are unproven assumptions that underlie this method, such
as that pinesnakes have circular activity ranges, and that the
occurrence location represents the center of that individual's range;
however, given the lack of representative telemetry data for many
areas, this is one approach to estimate activity ranges.
We placed circular buffers around recent black pinesnake location
points (post-1990) from the sources listed above, with a radius
equaling the maximum known movement distance (1.3 miles (2.1 km)) to
approximate the activity range of each snake (3,400 ac (1,376 ha)). The
1990 date was used as it coincides with dates chosen by black pinesnake
researchers who conducted habitat assessments at what were considered
recently and historically occupied locations (Duran and Givens 2001,
pp. 5-9). Using GIS, we located all areas where at least two black
pinesnake activity ranges overlapped, and identified those as potential
populations. Outside of these activity ranges, if the area was forested
and met the soils criteria, that area was considered contiguous habitat
and included in potential population boundaries.
We identified 11 populations using this method: 6 in Mississippi
and 5 in Alabama. These populations were then assessed in regard to
impacts from nearby fragmentation sources such as major roads, wetlands
and open water, incompatible land use (such as agricultural
conversion), and urban development.
Soils determined to be suitable habitat for the gopher tortoise
were used as a surrogate to determine suitable soils for the black
pinesnake, as these species both occupy deep, sandy soils of upland
longleaf pine forest. A team of biologists and soil scientists from the
Service and the Natural Resources Conservation Service, with input from
staff from the U.S. Forest Service, developed a model to classify soils
throughout the gopher
[[Page 11251]]
tortoise's federally listed range (Service 2012, pp. 1-37). These
specific soil characteristics are detailed in the Physical or
Biological Features for the Black Pinesnake section, above.
To analyze potential impacts from roads and exclude areas around
roads that do not provide quality habitat for the black pinesnake, a
transportation layer was used with GIS, specifically examining Class 1
and 2 roads. Class 1 roads are hard-surface highways, including
Interstate and U.S. numbered highways, primary State routes, and all
controlled access highways; Class 2 roads include secondary State
routes, primary county routes, and other highways that connect
principal cities and towns. Both of these road classifications have a
high probability of causing permanent black pinesnake population
fragmentation and were excluded. Population boundaries were buffered at
least 100 meters from all Class 1 and 2 roads in order to exclude not
just the roadways themselves, but also to exclude the area capturing
rights-of-way, residences, and businesses along these major roads.
Major wetland areas and streams were avoided in determining population
boundaries, and these generally were consistent with changes in
elevation. To analyze the fragmentation effects from incompatible land
uses (including but not limited to urbanization), recent aerial imagery
and the 2011 National Land Cover Database (NLCD) were used. By
selecting the evergreen forest layers from NLCD, it was possible to
delineate large tracts of remaining pine forested habitat, and
concurrent analysis from the aerial imagery further removed areas with
agricultural fields, housing developments, and urban areas.
We calculated that the total area covered by two partially
overlapping activity ranges (5,000 ac (2,023 ha)) would be considered a
minimum population reserve area, as long as the area was not highly
fragmented. This is not to say that two snakes are considered a viable
population, but that this area estimate should be considered a minimum
value. As was discussed in Space for Individual and Population Growth
and for Normal Behavior (above), this estimate of minimum reserve area
was corroborated by modeling 50 polygons (150 acres in size to reflect
mean black pinesnake home range size) at various levels of overlap,
which resulted in a similar reserve area estimate of 5,000 acres.
Once all the above analyses were complete, the level of
fragmentation in each population was assessed. If fragmentation within
a population boundary limited the suitable habitat to the point where
less than 5,000 ac (2,023 ha) of contiguous forested habitat was
available, that population was no longer considered potentially viable
and was removed from critical habitat consideration.
Using the above-described process, 8 of the 11 populations examined
met the criteria for consideration as critical habitat: all 6 of the
populations in Mississippi and 2 of the 5 in Alabama. Five of the six
Mississippi populations occur at least partially on the De Soto
National Forest, the largest of which is located almost exclusively on
the Camp Shelby Special Use Permit area, and the sixth occurs primarily
on the Marion County Wildlife Management Area (WMA). All six
populations meet the criteria of appropriate size; contiguous, pine-
dominated, forested habitat; soils; and minimal fragmentation. The
Service has determined that these sites contain the PBFs that are
essential for the conservation of the black pinesnake.
Both of the Alabama populations that met the criteria to be
considered critical habitat are located in Clarke County and include a
population primarily located on lands previously identified as the
Scotch WMA and a population located at the Fred T. Stimpson SOA. SOAs
are State-owned properties, typically smaller than Wildlife Management
Areas in acreage, that offer a different hunting format to reduce
pressure and increase the quality of the hunt. Three other populations,
in Washington and Mobile Counties, each have two black pinesnake
records from the last 25 years, but due to urban and agricultural
fragmentation no longer contain the PBFs.
The critical habitat designation does not include all forested
areas known to have been occupied by the subspecies historically;
instead, it focuses on occupied areas within the current range that
have retained the necessary PBFs that will allow for the maintenance
and expansion of existing populations. Further, as discussed in the
Critical Habitat section above, we recognize that designation of
critical habitat might not include all habitat areas that we may
eventually determine are necessary for the recovery of the subspecies
and that for this reason, a critical habitat designation does not
signal that habitat outside the designated area is unimportant or may
not promote the recovery of the subspecies.
Areas Not Occupied at the Time of Listing
We are not designating any areas outside the geographical areas
occupied by the black pinesnake at the time of listing. The units
within the area occupied by the subspecies at the time of listing are
representative of the current geographical range and include both the
core population areas of black pinesnakes, as well as remaining
peripheral population areas. We determined that there was sufficient
area for the conservation of the subspecies within the occupied areas
determined above.
When determining critical habitat boundaries within this final
rule, 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 for the black pinesnake. The
scale of the maps we prepared under the parameters for publication
within the Code of Federal Regulations may not reflect the exclusion of
such developed lands; nor all lands covered under the Camp Shelby
Integrated Natural Resources Management Plan (INRMP), which are
exempted from critical habitat designation (see Application of Section
4(a)(3) of the Act under Exemptions, below); nor all lands within the
Camp Shelby Impact Area Buffer Zone, which are excluded from critical
habitat designation (see Exclusions Based on Impacts on National
Security and Homeland Security under Exclusions, below). Thus, any such
lands inadvertently left inside critical habitat boundaries shown on
the maps of this rule have been excluded by text in the rule and are
not designated as critical habitat. Therefore, a Federal action
involving these lands will 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.
Eight units, one of which was divided into two subunits, were
designated. All eight units contain all of the physical or biological
features necessary to support life-history functions essential to the
conservation of the black pine snake, namely: Unfragmented tracts of
pine forest of sufficient size and structure (PBF 1); suitable
underground refugia sites (PBF 2); and deep, sandy soils (PBF 3).
The critical habitat designation is defined by the map or maps, as
modified by any accompanying regulatory text, presented at the end of
this document in the rule portion. 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
[[Page 11252]]
the public on http://www.regulations.gov at Docket No. FWS-R4-ES-2014-
0065, on our internet sites http://www.fws.gov/mississippiES/, and at
the field office responsible for the designation (see FOR FURTHER
INFORMATION CONTACT above).
Final Critical Habitat Designation
We are designating approximately 324,679 ac (131,393 ha) in eight
units (one unit divided into two subunits) as critical habitat for the
black pinesnake. Those eight units are: (1) Ovett, (2) Piney Woods
Creek, (3) Cypress Creek, (4A) Maxie, (4B) Maxie, (5) Howison, (6)
Marion County WMA, (7) Jones Branch, and (8) Fred T. Stimpson SOA.
Table 1 provides the location, approximate area, and land ownership
of each critical habitat unit.
Table 1--Critical Habitat Units for Black Pinesnake
[Area estimates reflect all land within critical habitat unit boundaries]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Ownership *
Unit Counties ---------------------------------------------------------------------- Total area
Federal State Private
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MISSISSIPPI
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1--Ovett........................... Jones, Wayne.......... 40,639 ac (16,446 ha). ..................... 6,540 ac (2,647 ha).. 47,179 ac (19,093 ha)
2--Piney Woods Creek............... Perry, Wayne.......... 17,744 ac (7,181 ha).. ..................... 4,645 ac (1,880 ha).. 22,389 ac (9,061 ha)
3--Cypress Creek................... Forrest, George, 115,315 ac (46,666 ha) 1,768 ac (716 ha).... 14,357 ac (5,810 ha). 131,440 ac (53,192
Greene, Perry. ha)
4A--Maxie.......................... Forrest, Stone........ 8,914 ac (3,607 ha)... ..................... 6,303 ac (2,551 ha).. 15,217 ac (6,158 ha)
4B--Maxie.......................... Forrest, Perry, Stone. 28,232 ac (11,425 ha). ..................... 16,079 ac (6,507 ha). 44,311 ac (17,932 ha)
5--Howison......................... Stone, Harrison....... 9,430 ac (3,816 ha)... ..................... 3,519 ac (1,424 ha).. 12,949 ac (5,240 ha)
6--Marion County WMA............... Marion................ ...................... 5,587 ac (2,261 ha).. 6,270 ac (2,537 ha).. 11,857 ac (4,798 ha)
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ALABAMA
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7--Jones Branch.................... Clarke................ ...................... ..................... 33,395 ac (13,515 ha) 33,395 ac (13,515 ha)
8--Fred T. Stimpson SOA............ Clarke................ ...................... 3,843 ac (1,555 ha).. 2,100 ac (850 ha).... 5,943 ac (2,405 ha)
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Total Area..................... ...................... 220,273 ac (89,141 ha) 11,197 ac (4,531 ha). 93,208 ac (37,720 ha) 324,679 ac (131,393
ha)
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* Notes: Area sizing may not sum due to rounding. Also, no lands owned by local government agencies are being designated as critical habitat.
We present brief descriptions of all units, and reasons why they
meet the definition of critical habitat for the black pinesnake, below.
Unit 1: Ovett--Jones and Wayne Counties, Mississippi
Unit 1 encompasses approximately 47,179 ac (19,093 ha) on Federal
and private land in Jones and Wayne Counties, Mississippi. This unit is
located between the Bogue Homo River and Thompson Creek, is
approximately 2.0 mi (3.2 km) northeast of Ovett, and is mostly within
the boundary of the Chickasawhay Ranger District of the De Soto
National Forest (DNF). It is located just east of State Highway 15,
west of Salem Road, north of the intersection of State Highway 15 and
County Road 205, and approximately 1.3 mi (2.1 km) south of the
intersection of Freedom Road and Forest Road.
The majority of this unit (40,639 ac (16,446 ha)) is on Federal
lands within the DNF, with the remainder of the unit (6,540 ac (2,647
ha)) on private land.
There are records of eight black pinesnakes located within Unit 1
since 1990. Many of these are located on the higher ridges within the
unit boundary, but are within close enough proximity to each other
(with contiguous habitat between) for all of them to belong to the same
breeding population. Habitat management on the section of this unit
owned by the U.S. Forest Service (86 percent) is performed under the
Revised Land and Resource Management Plan for National Forests in
Mississippi (U.S. Forest Service 2014, 207 pp.). This forest plan
contains objectives for the threatened gopher tortoise and endangered
red-cockaded woodpecker (Picoides borealis), both of which occur on
Unit 1. These objectives include restoring and opening up canopy
conditions in areas with sandy soils and in mature and old-growth pine
forests and woodlands, with 1- to 3-year fire intervals; however, the
management practices outlined in this plan do not specifically target
all of the habitat requirements of the black pinesnake.
Threats to the black pinesnake and its habitat in Unit 1 that may
require special management considerations or protection of the PBFs
include: Fire suppression and low fire frequencies; detrimental
forestry practices that could cause significant subsurface disturbance
such as disking, bedding, or whole root ball stump removal; land use
conversion and fragmentation, primarily urban development and
conversion to agriculture and pine plantations; utility easements; road
mortality; and encroachment of invasive species.
Unit 2: Piney Woods Creek--Wayne and Perry Counties, Mississippi
Unit 2 encompasses approximately 22,389 ac (9,061 ha) on Federal
and private land located primarily in Wayne County, Mississippi, with a
small portion extending into Perry County, Mississippi. This unit is
located between Thompson Creek and Piney Woods Creek, is approximately
4.0 mi (6.4 km) west of Clara, and is mostly within the boundary of the
Chickasawhay Ranger District of the DNF. It is located 2.3 mi (3.7 km)
north of the intersection of Camp Eight Road and Will Best Road, and
0.4 mi (0.6 km) southeast of the intersection of Clara-Strengthford
Road and Clara-Strengthford Reservoir Road.
The majority of this unit (17,744 ac (7,181 ha)) is on Federal
lands within the DNF, with the remainder of the Unit (4,645 ac (1,880
ha)) on private land.
There are records of five black pinesnakes located within Unit 2
since 1990. Many of these are located on the higher ridges within the
unit boundary, but are within close enough proximity to each other
(with contiguous habitat between) for all of them to belong to the same
breeding population. Habitat management on the section of this unit
owned by the U.S. Forest Service (79 percent) is performed under the
Revised Land and Resource Management Plan for National Forests in
Mississippi (U.S. Forest Service 2014, 207 pp.) (see discussion under
Unit 1, above).
Threats to the black pinesnake and its habitat in Unit 2 that may
require special management considerations or protection of the PBFs
include: Fire suppression and low fire frequencies; detrimental
forestry practices that could cause significant subsurface disturbance
[[Page 11253]]
such as disking, bedding, or whole root ball stump removal; land use
conversion and fragmentation, primarily urban development and
conversion to agriculture and pine plantations; gas, water, electrical
power, and sewer easements; road mortality; and encroachment of
invasive species.
Unit 3: Cypress Creek--Forrest, Perry, George, and Greene Counties,
Mississippi
Unit 3 is the largest of all the units, encompassing approximately
131,440 ac (53,192 ha) on Federal, State, and private land in Forrest,
Perry, George, and Greene Counties, Mississippi. This unit is located
north of Black Creek (Cypress Creek runs into part of the unit, but is
not a barrier to gene flow), and is approximately 3.0 mi (4.8 km) east
of McLaurin, 1.8 mi (2.9 km) south of New Augusta, and 4.6 mi (7.4 km)
northwest of Benndale. Unit 3 is mostly within the installation
boundary of Camp Shelby on the De Soto Ranger District of the DNF, and
is bordered by State Highways 26 and 57 and U.S. Highways 49 and 98.
The majority of this unit (115,315 ac (46,666 ha)) is on Federal
lands, with another 1,768 ac (716 ha) on State lands; and the remainder
(14,357 ac (5,810 ha)) on private land. This unit contains 4,054 ac
(1,641 ha) of State- and Department of Defense (DoD)-owned lands that
are covered under the Camp Shelby INRMP, which are exempted from
critical habitat designation (see Application of Section 4(a)(3) of the
Act under Exemptions, below). The unit also contains a total of 14,862
ac (6,014 ha) of USFS-owned land within the Camp Shelby Impact Area and
its associated buffer zone, which are excluded under section 4(b)(2) of
the Act (see Exclusions Based on Impacts on National Security and
Homeland Security under Exclusions, below).
There are over 100 records of black pinesnakes located within Unit
3 since 2004, as compiled by The Nature Conservancy's Camp Shelby Field
Office. Many of these are located on the higher ridges within the unit
boundary, but are within close enough proximity to each other (with
contiguous habitat between) for all of them to belong to the same
breeding population. Habitat management on the section of this unit
owned by the U.S. Forest Service is performed under the Revised Land
and Resource Management Plan for National Forests in Mississippi (U.S.
Forest Service 2014, 207 pp.). In addition to containing objectives for
the threatened gopher tortoise and endangered red-cockaded woodpecker,
both of which occur on Unit 3 (see discussion under Unit 1, above), it
also includes objectives for the endangered dusky gopher frog (Rana
sevosa), which has three critical habitat units totaling 961.8 ac
(389.2 ha), also located within Unit 3. Forest plan objectives for the
dusky gopher frog include upland forest management to restore and
improve open-canopied conditions compatible with black pinesnake
habitat requirements.
Threats to the black pinesnake and its habitat in Unit 3 that may
require special management considerations or protection of the PBFs
include: Fire suppression and low fire frequencies; detrimental
forestry practices that could cause significant subsurface disturbance
such as disking, bedding, or whole root ball stump removal; land use
conversion and fragmentation, primarily urban development and
conversion to agriculture and pine plantations; gas, water, electrical
power, and sewer easements; road mortality; and encroachment of
invasive species.
Unit 4: Maxie--Forrest, Perry, and Stone Counties, Mississippi
Unit 4 encompasses a total of approximately 59,528 ac (24,090 ha)
on Federal and private land in Forrest, Perry, and Stone Counties,
Mississippi. Located south of Black Creek and 3.0 mi (4.8 km) north of
Wiggins, this unit is bisected into two subunits (4A and 4B) by U.S.
Highway 49. Both subunits are buffered from U.S. Highway 49 by at least
328 ft (100 m). The close proximity of black pinesnake records with
adjacent suitable habitat would have made Unit 4 a single unit
following the criteria for designation of critical habitat if not for
the presence of U.S. Highway 49, which is a significant source of
fragmentation and is potentially restricting gene flow between the two
subunits.
Subunit 4A is located between Double Branch and U.S. Highway 49 in
Forrest and Stone Counties, Mississippi. It is 0.3 mi (4.8 km)
northwest of Bond and 0.5 mi (0.8 km) southwest of Maxie, and is
located mostly within the boundary of the De Soto Ranger District of
the DNF. Most of this subunit (8,914 ac (3,607 ha)) is on Federal lands
within the DNF, with the remainder of the subunit (6,303 ac (2,551 ha))
on private land. There are records of two black pinesnakes located
within subunit 4A since 1990. These are located on the eastern edge of
the subunit, but have contiguous habitat with the rest of the area.
Subunit 4B is located between Black Creek and U.S. Highway 49 in
Forrest, Perry, and Stone Counties, Mississippi. It is directly
adjacent to Maxie on the western border, and is located mostly within
the boundary of the De Soto Ranger District of the DNF. Most of this
subunit (28,232 ac (11,425 ha)) is on Federal lands within the DNF,
with the remainder of the subunit (16,079 ac (6,507 ha)) on private
land. There are records of four black pinesnakes located within subunit
4B since 1990. These are located on the higher ridges of the subunit,
but have contiguous habitat with the rest of the area.
Habitat management on the section of these subunits owned by the
U.S. Forest Service (86 percent) is performed under the Revised Land
and Resource Management Plan for National Forests in Mississippi (U.S.
Forest Service 2014, 207 pp.). This forest plan contains objectives for
the threatened gopher tortoise, which occurs on both subunits of Unit
4. These objectives include restoring and opening up canopy conditions
in areas with sandy soils with 1- to 3-year fire intervals; however,
the management practices outlined in this plan do not specifically
target the habitat requirements of the black pinesnake. Subunit 4B also
contains two units designated as critical habitat for the endangered
dusky gopher frog, totaling 598.6 ac (242.2 ha) (see discussion of Unit
3, above, for more about forest plan objectives for the gopher frog).
Threats to the black pinesnake and its habitat in Unit 4 that may
require special management considerations or protection of the PBFs
include: Fire suppression and low fire frequencies; detrimental
forestry practices that could cause significant subsurface disturbance
such as disking, bedding, or whole root ball stump removal; land use
conversion and fragmentation, primarily urban development and
conversion to agriculture and pine plantations; gas, water, electrical
power, and sewer easements; road mortality; and encroachment of
invasive species.
Unit 5: Howison--Stone and Harrison Counties, Mississippi
Unit 5 encompasses approximately 12,949 ac (5,240 ha) on Federal
and private land in Harrison and Stone Counties, Mississippi. This unit
is located between Tuxachanie Creek and U.S. Highway 49, approximately
0.4 mi (0.6 km) east of Howison and 1.3 mi (2 km) southeast of McHenry,
and this unit is mostly within the boundary of the De Soto Ranger
District of the DNF. The unit is bordered on the northern edge by E.
McHenry Road and on the western edge by U.S. Highway 49 (buffered from
the highway by at least 328 ft (100 m)).
The majority of this unit (9,430 ac (3,816 ha)) is on Federal lands
within the DNF, with the remainder of the unit
[[Page 11254]]
on private lands (3,519 ac (1,424 ha)) lands.
There are records of seven black pinesnakes located within Unit 5
since 1990. Many of these are located on the higher ridges within the
unit boundary, but are within close enough proximity of each other
(with contiguous habitat between) for all of them to belong to the same
breeding population. Habitat management on the section of this unit
owned by the U.S. Forest Service is performed under the Revised Land
and Resource Management Plan for National Forests in Mississippi (U.S.
Forest Service 2014, 207 pp.). This forest plan contains objectives for
the threatened gopher tortoise, which occurs on Unit 5 (see discussion
for Unit 4, above).
Threats to the black pinesnake and its habitat in Unit 5 that may
require special management considerations or protection of the PBFs
include: Fire suppression and low fire frequencies; detrimental
forestry practices that could cause significant subsurface disturbance
such as disking, bedding, or whole root ball stump removal; land use
conversion and fragmentation, primarily urban development and
conversion to agriculture and pine plantations; gas, water, electrical
power, and sewer easements; road mortality; and encroachment of
invasive species.
Unit 6: Marion County WMA--Marion County, Mississippi
Unit 6 encompasses approximately 11,856 ac (4,798 ha) on State and
private land in Marion County, Mississippi. This unit is located
between the Upper Little Creek and Lower Little Creek, 7.0 mi (11 km)
southeast of Columbia. It is located 0.8 mi (1.3 km) north of State
Highway 13, and 2.6 mi (4.2 km) south of U.S. Highway 98. Approximately
half of Unit 6 is within the Marion County WMA.
The unit is divided between State lands (5,587 ac (2,261 ha)) and
private lands (6,270 ac (2,537 ha)).
There are records of two black pinesnakes located within Unit 6
since 1990. These are both located on the WMA, although there is
contiguous suitable habitat across the remainder of the unit.
Regulations on the WMA include prohibitions of wildlife harassment;
however, there are no habitat management activities occurring at the
WMA that specifically target the habitat requirements of the black
pinesnake.
Threats to the black pinesnake and its habitat in Unit 6 that may
require special management considerations or protection of the PBFs
include: Fire suppression and low fire frequencies; detrimental
forestry practices that could cause significant subsurface disturbance
such as disking, bedding, or whole root ball stump removal; land use
conversion and fragmentation, primarily urban development and
conversion to agriculture and pine plantations; gas, water, electrical
power, and sewer easements; road mortality; and encroachment of
invasive species.
Unit 7: Jones Branch--Clarke County, Alabama
Unit 7 encompasses approximately 33,395 ac (13,515 ha) of private
land in Clarke County, Alabama. This unit is bordered by Salitpa Creek
to the south, Tallahatta Creek to the north, and Harris Creek to the
west. It is located approximately 2.7 mi (4.3 km) southeast of Campbell
and 1.1 mi (1.8 km) north of the intersection of Old Mill Pond Road and
Reedy Branch Road.
There are records of five black pinesnakes located within Unit 7
since 1994, including one as recently as 2015. Many of these are
located on the higher ridges within the unit boundary, but are within
close enough proximity to each other (with contiguous habitat between)
for all of them to belong to the same breeding population. Most of this
unit is managed by Scotch Land Management, LLC; however, there are no
management practices on this unit that specifically target the habitat
requirements of the black pinesnake.
Threats to the black pinesnake and its habitat in Unit 7 that may
require special management considerations or protection of the PBFs
include: Fire suppression and low fire frequencies; detrimental
forestry practices that could cause significant subsurface disturbance
such as disking, bedding, or whole root ball stump removal; land use
conversion and fragmentation, primarily urban development and
conversion to agriculture and pine plantations; gas, water, electrical
power, and sewer easements; road mortality; and encroachment of
invasive species.
Unit 8: Fred T. Stimpson SOA--Clarke County, Alabama
Unit 8 encompasses approximately 5,943 ac (2,405 ha) on State and
private land in Clarke County, Alabama. This unit is located between
Sand Hill Creek and the Tombigbee River, is approximately 1 mi (1.6 km)
north of Carlton, and is 1.0 mi (1.6 km) south of the intersection of
County Road 15 and Christian Vall Road. The southern two-thirds of this
unit is on the Fred T. Stimpson SOA. Over 60 percent of the unit (3,843
ac (1,555 ha)) is on State lands, with the remainder of the unit (2,100
ac (850 ha)) on private land.
There are records of two black pinesnakes located within Unit 8
since 1992. These are both located on the SOA, although there is
contiguous suitable habitat across the remainder of the unit. There are
no habitat management practices outlined at the site that specifically
target the habitat requirements of the black pinesnake.
Threats to the black pinesnake and its habitat in Unit 8 that may
require special management considerations or protection of the PBFs
include: Fire suppression and low fire frequencies; detrimental
forestry practices that could cause significant subsurface disturbance
such as disking, bedding, or whole root ball stump removal; land use
conversion and fragmentation, primarily urban development and
conversion to agriculture and pine plantations; gas, water, electrical
power, and sewer easements; road mortality; and encroachment of
invasive species.
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 that is likely to
jeopardize the continued existence of any species listed under the Act
or result in the destruction or adverse modification of critical
habitat.
We published a final regulation with a new definition of
destruction or adverse modification on August 27, 2019 (84 FR 45020).
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
[[Page 11255]]
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 or authorized, do not require section 7 consultation.
As a result of section 7 consultation, we document compliance with
the requirements of section 7(a)(2) through our issuance of:
(1) A concurrence letter for Federal actions that may affect, but
are not likely to adversely affect, listed species or critical habitat;
or
(2) A biological opinion for Federal actions that may affect and
are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is
likely to jeopardize the continued existence of a listed species and/or
destroy or adversely modify critical habitat, we provide reasonable and
prudent alternatives to the project, if any are identifiable, that
would avoid the likelihood of jeopardy and/or destruction or adverse
modification of critical habitat. We define ``reasonable and prudent
alternatives'' (at 50 CFR 402.02) as alternative actions identified
during consultation that:
(1) Can be implemented in a manner consistent with the intended
purpose of the action,
(2) Can be implemented consistent with the scope of the Federal
agency's legal authority and jurisdiction,
(3) Are economically and technologically feasible, and
(4) Would, in the Director's opinion, avoid the likelihood of
jeopardizing the continued existence of the listed species and/or avoid
the likelihood of destroying or adversely modifying critical habitat.
Reasonable and prudent alternatives can vary from slight project
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
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 sometimes may need to request reinitiation of 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.
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. Activities that may destroy or
adversely modify critical habitat are those that result in a direct or
indirect alteration that appreciably diminishes the value of critical
habitat as a whole for the conservation of the black pinesnake. 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 destroy or
adversely modify such habitat, or that may be affected by such
designation.
Activities that may affect critical habitat, when carried out,
funded, or authorized by a Federal agency, should result in
consultation for the black pinesnake. These activities include, but are
not limited to:
(1) Forestry management actions in pine habitat that would
significantly alter the suitability of black pinesnake habitat. Such
activities include, but are not limited to: Silvicultural activities
such as disking and bedding that involve significant subsurface
disturbance, or stumping involving whole root ball removal; conversion
to densely stocked pine plantations; and chemical applications
(pesticides or herbicides) that are either unlawful or that are not
directly aimed at hazardous fuels reduction, mid-story hardwood
control, or noxious weed control. These activities could destroy or
alter the pine forest habitats and refugia necessary for the growth and
development of black pinesnakes, and may reduce populations of the
snake's primary prey (rodents), either through direct extermination or
through loss of the forage necessary to sustain the prey base.
(2) Actions that would significantly fragment black pinesnake
populations. Such activities include, but are not limited to:
Conversion of timber land to other uses (agricultural, urban/
residential development) and construction of new structures. These
activities could lead to degradation or elimination of forest habitat,
limit or prevent breeding opportunities between black pinesnakes, limit
access to familiar refugia or nesting sites within individual home
ranges, and increase the frequency of road mortality from road
crossings.
Exemptions
Application of Section 4(a)(3) of the Act
The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a)
required each military installation that includes land and water
suitable for the conservation and management of natural resources to
complete an integrated natural resources management plan (INRMP) by
November 17, 2001. An INRMP integrates implementation of the military
mission of the installation with stewardship of the natural resources
found on the base. Each INRMP includes:
(1) An assessment of the ecological needs on the installation,
including the need to provide for the conservation of listed species;
(2) A statement of goals and priorities;
(3) A detailed description of management actions to be implemented
to provide for these ecological needs; and
(4) A monitoring and adaptive management plan.
Among other things, each INRMP must, to the extent appropriate and
applicable, provide for fish and wildlife management; fish and wildlife
habitat enhancement or modification; wetland protection, enhancement,
and restoration where necessary to support fish and wildlife; and
enforcement of applicable natural resource laws.
The National Defense Authorization Act for Fiscal Year 2004 (Pub.
L. 108-136) amended the Act to limit areas eligible for designation as
critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16
U.S.C. 1533(a)(3)(B)(i)) now provides that the Secretary shall not
designate as critical habitat any lands or other geographic 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.
We consult with the military on the development and implementation
of INRMPs for installations with listed
[[Page 11256]]
species. We analyzed one INRMP developed by military installations
located within the range of the critical habitat designation for the
black pinesnake to determine if it met the criteria for exemption from
critical habitat under section 4(a)(3) of the Act. The following area
consists of Department of Defense lands with a completed, Service-
approved INRMP within the critical habitat designation.
Approved INRMP
Camp Shelby Joint Forces Training Center (Camp Shelby), 4,054 ac (1,641
ha)
Camp Shelby is located in Forrest, George, and Perry Counties, near
the town of Hattiesburg, Mississippi, and contains habitat with
features essential to the conservation of the black pinesnake. The
primary mission of Camp Shelby is to train U.S. Army soldiers (National
Guard and Reserve) for combat and combat-related missions. Training
activities at Camp Shelby primarily include troop bivouacking, wheeled
vehicle maneuvers, artillery firing exercises, and tank training
maneuvers.
Camp Shelby is composed of property belonging in four different
categories: Department of Defense (DoD), State, United States Forest
Service (USFS), and private land. The main part of Camp Shelby's
training area belongs to the USFS and is operated under a special use
permit (permit) from the USFS granted in 2007 for 20 years. The DoD and
State lands are managed by the Mississippi Army National Guard (MSARNG)
in support of the military mission, and the Camp Shelby INRMP addresses
integrative management on these lands only (MSARNG 2014, p. 13). These
DoD and State lands, included in the INRMP, with habitat features
essential to the conservation of the black pinesnake, total
approximately 4,054 ac (1,641 ha). We have examined the INRMP and
determined that it outlines conservation measures for the black
pinesnake, as well as management plans for important upland habitats at
Camp Shelby. Conservation measures outlined in the INRMP for the black
pinesnake at Camp Shelby include: Research on life history, habitat
requirements, and habitat use; monitoring; prescribed burning and
longleaf pine restoration programs, including increasing the frequency
of growing season burns, reducing canopy closure and basal area, and
restoring the natural fire regime; protecting and maintaining downed
deadwood and pine stumps (when not identified as a safety hazard); and
implementation of education programs for users of Camp Shelby (geared
towards minimizing the negative impacts of vehicular mortality on the
black pinesnake and other species) (MSARNG 2014, pp. 92-94). The INRMP
will continue to be reviewed annually to monitor the effectiveness of
the plan, and be reviewed every 5 years to develop revisions and
updates as necessary.
Based on the above considerations, and in accordance with section
4(a)(3)(B)(i) of the Act, we have determined that the identified lands
are subject to the Camp Shelby INRMP and that conservation efforts
identified in the INRMP will provide a benefit to the black pinesnake.
Therefore, DoD and State lands within this installation, which are
covered under the INRMP, are exempt from critical habitat designation
under section 4(a)(3) of the Act. We are not including approximately
4,054 ac (1,641 ha) of habitat in this final critical habitat
designation because of this exemption.
Exclusions
Consideration of Impacts Under Section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that the Secretary shall
designate and make revisions to critical habitat on the basis of the
best available scientific data after taking into consideration the
economic impact, national security impact, and any other relevant
impact of specifying any particular area as critical habitat. The
Secretary may exclude an area from critical habitat if 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 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 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.
When identifying the benefits of inclusion for an area, we consider
the additional regulatory benefits that area would receive due to the
protection from destruction of adverse modification as a result of
actions with a Federal nexus; the educational benefits of mapping
essential habitat for recovery of the listed species; and any benefits
that may result from a designation due to State or Federal laws that
may apply to critical habitat.
When identifying the benefits of exclusion, we consider, among
other things, whether exclusion of a specific area is likely to result
in conservation or the continuation, strengthening, or encouragement of
partnerships. In the case of the black pinesnake, the benefits of
critical habitat include public awareness of the presence of black
pinesnake and the importance of habitat protection, and, where a
Federal nexus exists, increased habitat protection for the black
pinesnake due to the protection from destruction or adverse
modification of critical habitat. Additionally, continued
implementation of an ongoing management plan that provides equal to or
more conservation than a critical habitat designation would reduce the
benefits of including that specific area in the critical habitat
designation.
We evaluate the existence of a conservation plan when considering
the benefits of inclusion. We consider a variety of factors, including
but not limited to, whether the plan is finalized; how it provides for
the conservation of the essential physical or biological features;
whether there is a reasonable expectation that the conservation
management strategies and actions contained in a management plan will
be implemented into the future; whether the conservation strategies in
the plan are likely to be effective; and whether the plan contains a
monitoring program or adaptive management to ensure that the
conservation measures are effective and can be adapted in the future in
response to new information.
After identifying the benefits of inclusion and the benefits of
exclusion, we carefully weigh the two sides to evaluate whether the
benefits of exclusion outweigh those of inclusion. If our analysis
indicates that the benefits of exclusion outweigh the benefits of
inclusion, we then determine whether exclusion would result in
extinction of the species. If exclusion of an area from critical
habitat will result in extinction, we will not exclude it from the
designation.
As discussed below, based on the information provided by entities
seeking exclusion, as well as additional public comments received, we
determined that certain lands were appropriate for exclusion from this
final designation pursuant to section 4(b)(2) of the Act. Specifically,
we are excluding the Camp Shelby Impact Area and the associated buffer
zone (14,862 ac [6,014 ha]), located within Unit 3, from designation of
critical habitat for the black pinesnake (see discussion under
Exclusions Based on Impacts on National Security and Homeland Security,
below).
[[Page 11257]]
Exclusions Based on Economic 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. In order to consider economic impacts, we prepared
an incremental effects memorandum (IEM) and screening analysis, which,
together with our narrative and interpretation of effects, constitutes
our draft economic analysis (DEA) of the proposed critical habitat
designation and related factors (IEc 2014). The analysis, dated May 2,
2014, was made available for public review from March 11, 2015, through
May 11, 2015 (80 FR 12846), and again from October 11, 2018, through
November 13, 2018 (83 FR 51418). The DEA addressed probable economic
impacts of critical habitat designation for the black pinesnake.
Following the close of the comment periods, we reviewed and evaluated
all information submitted during the comment periods that may pertain
to our consideration of the probable incremental economic impacts of
this critical habitat designation. Information relevant to the probable
incremental economic impacts of critical habitat designation for the
black pinesnake is summarized below and available in the final economic
analysis (also referred to below as the screening analysis) for the
black pinesnake (IEc 2014a), available at http://www.regulations.gov.
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 black pinesnake in the May 2,
2014, IEM we identified probable incremental economic impacts
associated with the following categories of activities: (1) Federal
lands management (U.S. Forest Service); (2) forest management; (3)
agriculture; (4) development; (5) silviculture/timber; (6)
transportation activities; and (7) utilities. We considered each
industry or category individually. Additionally, we considered whether
the activities have any Federal involvement. Critical habitat
designation does not affect activities that do not have any Federal
involvement; designation of critical habitat only affects activities
conducted, funded, permitted, or authorized by Federal agencies. In
areas where the black pinesnake is present, Federal agencies would be
required to consult with the Service under section 7 of the Act on
activities they fund, permit, or implement that may affect the
federally threatened subspecies, and consultations to avoid the
destruction or adverse modification of critical habitat would be
incorporated into that consultation process.
In our IEM, we attempted to clarify the distinction between the
effects that would result from the subspecies being listed and those
attributable to the critical habitat designation (i.e., difference
between the jeopardy and adverse modification standards) for the black
pinesnake's critical habitat. The following specific circumstances
assisted in our evaluation: (1) The essential PBFs identified for
critical habitat are the same features essential for the life
requisites of the subspecies, and (2) any actions that would result in
sufficient harm or harassment to constitute jeopardy to the black
pinesnake would also likely adversely affect the essential physical and
biological features of critical habitat. The IEM outlines our rationale
concerning this limited distinction between baseline conservation
efforts and incremental impacts of the designation of critical habitat
for this subspecies. This evaluation of the incremental effects has
been used as the basis to evaluate the probable incremental economic
impacts of this critical habitat designation.
The critical habitat designation for the black pinesnake consists
of eight units, one of which is divided into two subunits, encompassing
approximately 324,679 ac (131,393 ha) in Mississippi and Alabama.
Included lands are under Federal, State, and private ownership, and all
are within the area occupied by the black pinesnake at the time of
listing. Federal land is predominant in Units 1 through 5. Federal
lands make up from 58 to 90 percent of the acreage in these units,
which account for approximately 68 percent of the total critical
habitat acreage. Privately owned land is present in all eight units and
ranges from 10 percent to a high of 100 percent in one unit. Private
lands account for approximately 29 percent of the total critical
habitat acreage. Approximately 14,862 ac (6,014 ha) of the originally
proposed critical habitat designation in one unit has been excluded
under section 4(b)(2) of the Act due to a national security concern
(see Exclusions Based on Impacts on National Security and Homeland
Security, below).
All lands in the critical habitat designation for the black
pinesnake are currently occupied by the subspecies. In these areas any
actions that may affect the subspecies or its habitat would also affect
designated critical habitat, and it is unlikely that any additional
conservation efforts would be recommended to address the adverse
modification standard over and above those recommended as necessary to
avoid jeopardizing the continued existence of the black pinesnake.
Therefore, only administrative costs are expected in the critical
habitat designation. While this additional analysis will require time
and resources by both the Federal action agency and the Service, we
conclude that, in most circumstances, these costs would predominantly
be administrative in nature and would not be significant.
The entities most likely to incur incremental costs are parties to
section 7 consultations, including Federal action agencies and, in some
cases, third parties, most frequently State agencies or municipalities.
Activities we expect will be subject to consultations that may involve
private entities as third parties are residential and commercial
development that may occur on private lands; however, cost to private
entities within these sectors is expected to be minor as most of the
critical habitat is in Federal ownership (68 percent) and only 29
percent of the lands are privately owned. According to a review of
consultation records, the additional administrative cost of addressing
adverse modification during the section 7 consultation process ranges
from approximately $410 to $9,000 per consultation. Based on the
project activity identified by relevant action agencies and comparison
to the consultation history for species that co-occur or share habitat
with the black pinesnake, the number of future formal consultations is
likely to be five or fewer in the year immediately following the final
designation. In addition, up to 60 informal consultations and five
technical assists could occur annually following the designation. Thus,
the incremental administrative burden resulting from the designation is
likely to be less than $190,000 in this first year, the year with the
highest anticipated costs; therefore, the costs would not be
significant.
In summary, the probable incremental economic impacts of the black
pinesnake critical habitat designation are expected to be limited to
additional administrative efforts as well as minor costs of
conservation efforts resulting from a small number of future section 7
consultations. This finding is based on the following factors:
(1) All critical habitat is occupied by the subspecies; thus, the
presence of the subspecies results in significant baseline protection
under the Act.
[[Page 11258]]
(2) Project modifications requested by the Service to avoid
jeopardy to the subspecies would be the same as those likely to avoid
adverse modification of critical habitat.
(3) Critical habitat would be unlikely to increase the number of
consultations as a result of the awareness by Federal agencies of the
need to consult for the listed subspecies, as well as the past
involvement of key action agencies in consultations for co-occurring
species.
(4) The designation also receives baseline protection from the
presence of two other federally listed species (gopher tortoise and
red-cockaded woodpecker) that have habitat needs similar to those of
the pinesnake.
(5) The designation also receives baseline protection from overlap
with designated critical habitat for the dusky gopher frog.
A supplemental document to the DEA, prepared by IEc (2014b),
investigated possible effects on the value of private lands within
critical habitat from the public perception that the designation posed
restrictions on the use of these lands. Land ownership data suggested
that the designation intersected about 65,000 acres of privately owned
lands. Due to existing data limitations regarding the probability that
such effects will occur and the likely degree to which property values
will be incrementally affected by this designation (above and beyond
possible perception effects resulting from the presence of co-occurring
listed species, including the pinesnake, gopher tortoise, red-cockaded
woodpecker, and dusky gopher frog, as well as its critical habitat), we
are unable to estimate the magnitude of perception-related costs
resulting from this designation.
Based on the above-described consideration of the economic impacts
of the critical habitat designation, the Secretary is not exercising
his discretion to exclude any areas from this designation of critical
habitat for the black pinesnake based on economic impacts.
A copy of the IEM and screening analysis with supporting documents
may be obtained by contacting the Mississippi Field Office (see
ADDRESSES) or by downloading from the field office's website at http://www.fws.gov/mississippiES/ or the internet at http://www.regulations.gov.
Exclusions Based on Impacts to National Security and Homeland Security
Section 4(a)(3)(B)(i) of the Act (see discussion above) may not
cover all DoD lands or areas that pose potential national-security
concerns (e.g., a DoD installation that is in the process of revising
its INRMP for a newly listed species or a species previously not
covered). If a particular area is not covered under section
4(a)(3)(B)(i), national-security or homeland-security concerns are not
a factor in the process of determining what areas meet the definition
of ``critical habitat.'' Nevertheless, when designating critical
habitat under section 4(b)(2) of the Act, the Service must consider
impacts on national security, including homeland security, on lands or
areas not covered by section 4(a)(3)(B)(i). Accordingly, we will always
consider for exclusion from the designation areas for which DoD,
Department of Homeland Security (DHS), or another Federal agency has
requested exclusion based on an assertion of national-security or
homeland-security concerns.
We cannot, however, 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,
it must provide 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 the
agency provides a reasonably specific justification, 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.
Camp Shelby Joint Forces Training Center Impact Area and Buffer Zone
After review of public comments and additional consideration, we
are excluding from critical habitat designation for the black pinesnake
the Camp Shelby Joint Forces Training Center Impact Area (Impact Area)
and its associated buffer zone, occupying a portion (14,862 ac (1,880
ha)) of Unit 3 in Perry County, Mississippi, under section 4(b)(2) of
the Act. In the paragraphs below, we provide a detailed analysis of our
decision to exclude this land.
The Impact Area of Camp Shelby Joint Forces Training Center (Camp
Shelby) is a 4,647-ac (1,880-ha) area operated by the MSARNG for
training and maneuver exercises in an area of the De Soto National
Forest within Unit 3 located in Perry County, Mississippi. The MSARNG
uses this area under a permit from the U.S. Forest Service, who is the
primary landowner and manager within the installation boundary. The
Impact Area, which is located in the center of Camp Shelby and in the
northern portion of Unit 3, has been used for artillery training for
decades. As a result, access of any kind is prohibited in this impact
area due to the high risk of encountering unexploded ordnance.
Surrounding the impact area is a buffer zone delineated by the
following roads: Grapevine Road on the west; South Tank Trail on the
south; Red Hill Road on the east; and Davis Range Road on the north.
All roads leading into this buffer zone are gated and locked, with
restricted public access and only allowed through coordination with
Camp Shelby Range Control. This buffer zone (14,862 ac (6,014 ha)
including the impact area) contains most of the artillery ranges on the
installation; therefore, much of this landscape burns almost annually
due to range fires. Portions of the acreage within this area overlap
with those lands covered under the Camp Shelby INRMP (see Approved
INRMP under the Exemptions section, above).
Benefits of Inclusion
We are not able to demonstrate any benefit to including this area
in the critical habitat designation for the black pinesnake. Access
into this area is restricted for human safety and to maintain effective
military training; therefore, the educational benefit associated with
identifying specific areas as critical habitat as a means to provide
the public with areas of potential conservation value is not realized
here. Furthermore, because of the restricted access, there are likely
no
[[Page 11259]]
habitat-altering activities taking place in this area at the scale that
would affect the physical and biological features essential to the
conservation of this subspecies. To the contrary, due to the nature of
military use in this area, it experiences frequent fires, which promote
optimal conditions for the black pinesnake.
Benefits of Exclusion
The benefits of excluding approximately 14,862 ac (6,014 ha) of
U.S. Forest Service lands that encompass the Impact Area and its
associated buffer zone of Camp Shelby are significant. Foremost, access
into this area is restricted due to the high risk of encountering
unexploded ordnance and to maintain safety and security of military
operations; thus, there is limited opportunity to implement habitat
management. However, as stated above, the area experiences frequent
fires due to the concentration of artillery ranges there, and this is
the preferred management technique for maintaining optimal habitat
conditions for the black pinesnake. In addition, the black pinesnake
receives secondary conservation benefits from management of adjacent
lands for the threatened gopher tortoise. Lands within the Impact Area
and its associated buffer zone encompass a large percentage of the area
used for artillery training on Camp Shelby, providing soldiers with
essential combat skills that they use on the battlefield. We believe
that excluding these U.S. Forest Service lands on Camp Shelby from
critical habitat designation would alleviate any potential impacts that
a designation of critical habitat could have on MSARNG and the
military's ability to maintain national security.
Benefits of Exclusion Outweigh the Benefits of Inclusion
Though access to the Impact Area and its associated buffer zone is
restricted, an analysis of GIS and aerial imagery determined that this
area contains the physical and biological features essential to the
conservation of the black pinesnake, thereby meeting the definition of
critical habitat under the Act. This area is also contiguous with other
critical habitat with known occurrences for the black pinesnake. In
making our decision to exclude the Impact Area and its associated
buffer zone, we considered several factors: Restricted access due to a
human safety issue; the apparent maintenance of physical and biological
factors essential to the conservation of the subspecies from frequent
burning due to the nature of the artillery ranges in the area;
protection from habitat loss associated with land conversion; and
potential impacts to national security associated with a critical
habitat designation. We determined there are significant benefits to
excluding these lands from critical habitat designation and were unable
to demonstrate a benefit to including these lands in the designation.
Therefore, we have determined that the benefits of exclusion of
approximately 14,862 ac (6,014 ha) of the Impact Area and its
associated buffer zone of Camp Shelby from the critical habitat
designation outweigh the benefits of including these lands.
Exclusion Will Not Result in Extinction of the Subspecies
The exclusion of this portion (14,862 ac (6,014 ha)) from the total
critical habitat designation in Unit 3 (135,494 ac (54,833 ha)) will
have minimal to no adverse effect on the subspecies. Adjacent lands
contain habitat for the black pinesnake and are part of the
designation. Maintenance of appropriate habitat for the black pinesnake
with frequent fires is likely to continue in this area due to the use
of this area for artillery training. The jeopardy standard of section 7
of the Act and routine implementation of conservation measures through
the section 7 process provide additional assurances that the subspecies
will not become extinct as a result of this exclusion. Thus, it is our
determination that the exclusion of the Camp Shelby Impact Area and its
associated buffer zone lands from the final designation of critical
habitat for the black pinesnake will not result in the extinction of
the subspecies.
Based on this analysis, under section 4(b)(2) of the Act, the
Secretary has exercised his discretion to exclude the Camp Shelby
Impact Area and its associated buffer zone within Unit 3 from the final
critical habitat designation as a result of impacts to national
security.
Exclusions Based on 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 there are
permitted conservation plans covering the species in the area such as
HCPs, safe harbor agreements, or candidate conservation agreements with
assurances, or whether there are non-permitted conservation agreements
and partnerships that would be encouraged by designation of, or
exclusion from, critical habitat. In addition, we look at the existence
of tribal conservation plans and partnerships 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 final rule, we have determined that there are
currently no permitted conservation plans or other non-permitted
conservation agreements or partnerships for the black pinesnake, and
the final designation does not include any tribal lands or tribal trust
resources. We anticipate no impact on tribal lands, partnerships,
permitted or non-permitted plans or agreements from this critical
habitat designation. Accordingly, the Secretary is not exercising his
discretion to exclude any areas from this final designation based on
other relevant impacts.
Required Determinations
Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) will review all significant rules. The Office
of Information and Regulatory Affairs has determined that this rule is
not significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while
calling for improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The Executive order directs agencies to consider regulatory approaches
that reduce burdens and maintain flexibility and freedom of choice for
the public where these approaches are relevant, feasible, and
consistent with regulatory objectives. E.O. 13563 emphasizes further
that regulations must be based on the best available science and that
the rulemaking process must allow for public participation and an open
exchange of ideas. We have developed this rule in a manner consistent
with these requirements.
Executive Order 13771
This rule is not an E.O. 13771 (``Reducing Regulation and
Controlling Regulatory Costs'') (82 FR 9339, February 3, 2017)
regulatory action because this rule is not significant under E.O.
12866.
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
[[Page 11260]]
Enforcement Fairness Act of 1996 (SBREFA; 5 U.S.C. 801 et seq.),
whenever an agency is required to publish a notice of rulemaking for
any proposed or final rule, it must prepare and make available for
public comment a regulatory flexibility analysis that describes the
effects of the rule on small entities (i.e., small businesses, small
organizations, and small government jurisdictions). However, no
regulatory flexibility analysis is required if the head of the agency
certifies the rule will not have a significant economic impact on a
substantial number of small entities. The SBREFA amended the RFA to
require Federal agencies to provide a certification statement of the
factual basis for certifying that the rule will not have a significant
economic impact on a substantial number of small entities.
According to the Small Business Administration, small entities
include small organizations such as independent nonprofit
organizations; small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents; and small businesses (13 CFR 121.201). Small businesses
include manufacturing and mining concerns with fewer than 500
employees, wholesale trade entities with fewer than 100 employees,
retail and service businesses with less than $5 million in annual
sales, general and heavy construction businesses with less than $27.5
million in annual business, special trade contractors doing less than
$11.5 million in annual business, and agricultural businesses with
annual sales less than $750,000. To determine if potential economic
impacts to these small entities are significant, we considered the
types of activities that might trigger regulatory impacts under this
designation as well as types of project modifications that may result.
In general, the term ``significant economic impact'' is meant to apply
to a typical small business firm's business operations.
The Service's current understanding of the requirements under the
RFA, as amended, and following recent court decisions, is that Federal
agencies are only required to evaluate the potential incremental
impacts of rulemaking on those entities directly regulated by the
rulemaking itself, and therefore, not required 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 will be directly regulated by this designation. There
is no requirement under RFA to evaluate the potential impacts to
entities not directly regulated. Moreover, Federal agencies are not
small entities. Therefore, because no small entities are directly
regulated by this rulemaking, the Service certifies that the final
critical habitat designation will not have a significant economic
impact on a substantial number of small entities.
During the development of this final rule we reviewed and evaluated
all information submitted during the comment period that may pertain to
our consideration of the probable incremental economic impacts of this
critical habitat designation. Based on this information, we affirm our
certification that this final critical habitat designation will not
have a significant economic impact on a substantial number of small
entities, and a 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. OMB has provided guidance for implementing this
Executive order that outlines nine outcomes that may constitute ``a
significant adverse effect'' when compared to not taking the regulatory
action under consideration.
The economic analysis finds that none of these criteria are
relevant to this analysis. Thus, based on information in the economic
analysis, energy-related impacts associated with black pinesnake
conservation activities within critical habitat are not expected. As
such, the designation of critical habitat is not expected to
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 findings:
(1) This rule will not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute, or regulation
that would impose an enforceable duty upon State, local, or tribal
governments, or the private sector, and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or tribal governments'' with two
exceptions. It excludes ``a condition of Federal assistance.'' It also
excludes ``a duty arising from participation in a voluntary Federal
program,'' unless the regulation ``relates to a then-existing Federal
program under which $500,000,000 or more is provided annually to State,
local, and tribal governments under entitlement authority,'' if the
provision would ``increase the stringency of conditions of assistance''
or ``place caps upon, or otherwise decrease, the Federal Government's
responsibility to provide funding,'' and the State, local, or tribal
governments ``lack authority'' to adjust accordingly. At the time of
enactment, these entitlement programs were: Medicaid; Aid to Families
with Dependent Children work programs; Child Nutrition; Food Stamps;
Social Services Block Grants; Vocational Rehabilitation State Grants;
Foster Care, Adoption Assistance, and Independent Living; Family
Support Welfare Services; and Child Support Enforcement. ``Federal
private sector mandate'' includes a regulation that ``would impose an
enforceable duty upon the private sector, except (i) a condition of
Federal assistance or (ii) a duty arising from participation in a
voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal Government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not destroy or adversely modify critical
habitat under section 7. While non-Federal entities that receive
Federal funding, assistance, or permits, or that otherwise require
approval or authorization from a Federal agency for an action, may be
indirectly impacted by the designation of critical habitat, the legally
binding duty to avoid destruction or adverse modification of critical
habitat rests squarely on the Federal agency. Furthermore, to the
extent that non-Federal entities are indirectly impacted because they
receive Federal assistance or participate
[[Page 11261]]
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 will significantly or uniquely
affect small governments because it would not produce a Federal mandate
of $100 million or greater in any year; that is, it is not a
``significant regulatory action'' under the Unfunded Mandates Reform
Act. The designation of critical habitat imposes no obligations on
State or local governments. By definition, Federal agencies are not
considered small entities, although the activities they fund or permit
may be proposed or carried out by small entities. Consequently, we do
not believe that the critical habitat designation would significantly
or uniquely affect small government entities. As such, a Small
Government Agency Plan is not required.
Takings--Executive Order 12630
In accordance with E.O. 12630 (Government Actions and Interference
with Constitutionally Protected Private Property Rights), we have
analyzed the potential takings implications of designating critical
habitat for the black pinesnake in a takings implications assessment.
The Act does not authorize the Service to regulate private actions on
private lands or confiscate private property as a result of critical
habitat designation. Designation of critical habitat does not affect
land ownership, or establish any closures, or restrictions on use of or
access to the designated areas. Furthermore, the designation of
critical habitat does not affect landowner actions that do not require
Federal funding or permits, nor does it preclude development of habitat
conservation programs or issuance of incidental take permits to permit
actions that do require Federal funding or permits to go forward.
However, Federal agencies are prohibited from carrying out, funding, or
authorizing actions that would destroy or adversely modify critical
habitat. A takings implications assessment has been completed and
concludes that this designation of critical habitat for the black
pinesnake does not pose significant takings implications for lands
within or affected by the designation.
Federalism--Executive Order 13132
In accordance with E.O. 13132 (Federalism), this rule does not have
significant federalism effects. A federalism assessment is not
required. In keeping with Department of the Interior and Department of
Commerce policy, we requested information from, and coordinated
development of this critical habitat designation with, appropriate
State resource agencies in Alabama and Mississippi. We did not receive
written comments from Alabama or Mississippi specifically on the
critical habitat designation. From a federalism perspective, the
designation of critical habitat directly affects only the
responsibilities of Federal agencies. The Act imposes no other duties
with respect to critical habitat, either for States and local
governments, or for anyone else. As a result, the rule does not have
substantial direct effects either on the States, or on the relationship
between the National Government and the States, or on the distribution
of powers and responsibilities among the various levels of government.
The designation may have some benefit to these governments because the
areas that contain the features essential to the conservation of the
species are more clearly defined, and the physical and biological
features of the habitat necessary to the conservation of the species
are specifically identified. This information does not alter where and
what federally sponsored activities may occur. However, it may assist
these local governments in long-range planning (because these local
governments no longer have to wait for case-by-case section 7
consultations to occur).
Where State and local governments require approval or authorization
from a Federal agency for actions that may affect critical habitat,
consultation under section 7(a)(2) would be required. While non-Federal
entities that receive Federal funding, assistance, or permits, or that
otherwise require approval or authorization from a Federal agency for
an action, may be indirectly impacted by the designation of critical
habitat, the legally binding duty to avoid destruction or adverse
modification of critical habitat rests squarely on the Federal agency.
Civil Justice Reform--Executive Order 12988
In accordance with Executive Order 12988 (Civil Justice Reform),
the Office of the Solicitor has determined that the rule does not
unduly burden the judicial system and that it meets the applicable
standards set forth in sections 3(a) and 3(b)(2) of the order. We are
designating critical habitat in accordance with the provisions of the
Act. To assist the public in understanding the habitat needs of the
species, the rule identifies the elements of physical or biological
features essential to the conservation of the black pinesnake. The
designated areas of critical habitat are presented on maps, and the
rule provides several options for the interested public to obtain more
detailed location information, if desired.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This rule does not contain 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 (42 U.S.C. 4321 et seq.)
It is our position that, outside the jurisdiction of the U.S. Court
of Appeals for the Tenth Circuit, we do not need to prepare
environmental analyses pursuant to the National Environmental Policy
Act in connection with designating critical habitat under the Act. We
published a notice outlining our reasons for this determination in the
Federal Register on October 25, 1983 (48 FR 49244). This position was
upheld by the U.S. Court of Appeals for the Ninth Circuit (Douglas
County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S.
1042 (1996)).
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994
(Government-to-Government Relations with Native American Tribal
Governments; 59 FR 22951), Executive Order 13175 (Consultation and
Coordination With Indian Tribal Governments), and the Department of the
Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. In accordance with
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species Act),
we readily acknowledge our responsibilities to work directly with
tribes in developing programs for healthy ecosystems, to acknowledge
that tribal lands are not subject to the same controls as Federal
public lands, to remain sensitive to Indian culture, and to make
information available to tribes. We determined that no tribal lands are
affected by the designation.
[[Page 11262]]
References Cited
A complete list of all references cited is available on the
internet at http://www.regulations.gov and upon request from the black
pinesnake (see FOR FURTHER INFORMATION CONTACT).
Authors
The primary authors of this rulemaking are the staff members of the
Mississippi Field Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Regulation Promulgation
Accordingly, we amend part 17, subchapter B of chapter I, title 50
of the Code of Federal Regulations, as set forth below:
PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; 4201-4245, unless
otherwise noted.
0
2. Amend Sec. 17.11(h) by revising the entry for ``Pinesnake, black''
under ``REPTILES'' in the List of Endangered and Threatened Wildlife to
read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
----------------------------------------------------------------------------------------------------------------
Listing citations and
Common name Scientific name Where listed Status applicable rules
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Reptiles
* * * * * * *
Pinesnake, black................ Pituophis Wherever found.... T 80 FR 60468, 10/6/2015;
melanoleucus 50 CFR 17.42(h) \4d\;
lodingi. 50 CFR 17.95(c).\CH\
* * * * * * *
----------------------------------------------------------------------------------------------------------------
* * * * *
0
3. In Sec. 17.95, amend paragraph (c) by adding an entry for ``Black
Pinesnake (Pituophis melanoleucus lodingi)'' after the entry for ``St.
Croix Ground Lizard (Ameiva polops)'' to read as follows:
Sec. 17.95 Critical habitat--fish and wildlife.
* * * * *
(c) * * *
Black Pinesnake (Pituophis melanoleucus lodingi)
(1) Critical habitat units are depicted for Forrest, George,
Greene, Harrison, Jones, Marion, Perry, Stone, and Wayne Counties,
Mississippi, and Clarke County, Alabama, on the maps in this entry.
(2) Within these areas, the physical or biological features
essential to the conservation of black pinesnake consist of the
following components:
(i) Tract size and habitat structure. A pine forest, historically
dominated by longleaf pine and maintained by frequent fire, primarily
having the following characteristics:
(A) An open canopy that sustains a reduced woody mid-story (<10
percent cover) and abundant, diverse, native herbaceous groundcover (at
least 40 percent cover); and
(B) Minimum of 5,000 ac (2,023 ha) of mostly unfragmented habitat.
(ii) Refugia sites. Naturally burned-out or rotted-out pine stumps
and their associated root system tunnels, in pine forests historically
dominated by longleaf pine.
(iii) Soils. Deep, sandy, well-drained soils characteristic of
longleaf pine forests:
(A) No flooding or ponding;
(B) <15 percent medium and coarse gravel fragments;
(C) >60 in (152 cm) depth to seasonal high water table;
(D) >60 in (152 cm) depth to the hardpan;
(E) Textural components equaling >30 percent sand and <35 percent
clay; and
(F) A slope <15 percent.
(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
March 27, 2020. In addition, State and Department of Defense lands
covered under the Camp Shelby Integrated Natural Resources Management
Plan (INRMP) are not considered critical habitat in Unit 3; nor are
U.S. Forest Service lands within the Camp Shelby Impact Area Buffer
Zone.
(4) Critical habitat map units. Data layers defining map units were
developed from USGS 7.5' quadrangles, and critical habitat units were
then developed using Universal Transverse Mercator Zone 15N
coordinates. The maps in this entry, as modified by any accompanying
regulatory text, establish the boundaries of the critical habitat
designation. The coordinates or plot points or both on which each map
is based are available to the public at the Service's internet site at
http://www.fws.gov/mississippiES/, at http://www.regulations.gov at
Docket No. FWS-R4-ES-2014-0065, and at the field office responsible for
this designation. You may obtain field office location information by
contacting one of the Service regional offices, the addresses of which
are listed at 50 CFR 2.2.
(5) Note: Index map follows:
BILLING CODE 4333-15-P
[[Page 11263]]
[GRAPHIC] [TIFF OMITTED] TR26FE20.000
(6) Unit 1: Ovett--Jones and Wayne Counties, Mississippi.
(i) Unit 1 encompasses approximately 47,179 ac (19,093 ha) on
Federal and private land in Jones and Wayne Counties, Mississippi. The
majority of this unit (40,639 ac (16,446 ha)) is on Federal lands
within the De Soto National Forest, with the remainder of the unit
(6,540 ac (2,647 ha)) on private land. This unit is located between the
Bogue Homo River and Thompson Creek, is approximately 2.0 mi (3.2 km)
northeast of Ovett, and is mostly within the boundary of the
Chickasawhay Ranger District of the De Soto National Forest. It is
located just east of State Highway 15, west of Salem Road, north of the
intersection of State Highway 15 and County Road 205, and approximately
1.3 mi (2.1 km) south of
[[Page 11264]]
the intersection of Freedom Road and Forest Road.
(ii) Map of Units 1 (Ovett) and 2 (Piney Woods Creek) follows:
[GRAPHIC] [TIFF OMITTED] TR26FE20.001
(7) Unit 2: Piney Woods Creek--Perry and Wayne Counties,
Mississippi.
(i) Unit 2 encompasses approximately 22,389 ac (9,061 ha) on
Federal and private land located primarily in Wayne County,
Mississippi, with a small portion extending into Perry County,
Mississippi. The majority of this unit (17,744 ac (7,181 ha)) is on
Federal lands within the De Soto National Forest, with the remainder of
the Unit (4,645 ac (1,880 ha)) on private land. This unit is located
between Thompson Creek and Piney Woods Creek, is approximately 4.0 mi
(6.4 km) west of Clara, and is mostly within the boundary of the
Chickasawhay Ranger District of the De Soto National Forest. It is
located 2.3 mi (3.7 km) north of the intersection of Camp Eight Road
and Will Best Road, and 0.4 mi (0.6 km) southeast of the intersection
of Clara-Strengthford Road and Clara-Strengthford Reservoir Road.
[[Page 11265]]
(ii) Map of Unit 2 (Piney Woods Creek) is provided at paragraph
(6)(ii) of this entry.
(8) Unit 3: Cypress Creek--Greene, George, Forrest, and Perry
Counties, Mississippi.
(i) This unit is located north of Black Creek (Cypress Creek runs
into part of the unit, but is not a barrier to gene flow), and is
approximately 3.0 mi (4.8 km) east of McLaurin, 1.8 mi (2.9 km) south
of New Augusta, and 4.6 mi (7.4 km) northwest of Benndale. Unit 3 is
mostly within the installation boundary of Camp Shelby on the De Soto
Ranger District of the De Soto National Forest, and is bordered by
State Highways 26 and 57 and U.S. Highways 49 and 98. The majority of
this unit (115,315 ac (46,666 ha)) is on Federal lands, with another
1,768 ac (716 ha) on State lands, and the remainder (14,357 ac (5,810
ha)) on private land. This unit contains 4,054 ac (1,641 ha) of State-
and Department of Defense (DoD)-owned lands (covered under the Camp
Shelby INRMP) that are exempted from critical habitat designation; and
14,862 ac (6,014 ha) of U.S. Forest Service-owned lands excluded from
critical habitat designation.
(ii) Map of Units 3 (Cypress Creek) and 4 (Maxie) follows:
[GRAPHIC] [TIFF OMITTED] TR26FE20.002
[[Page 11266]]
(9) Unit 4: Maxie--Forrest, Perry, and Stone Counties, Mississippi.
(i) Subunit 4A--Forrest and Stone Counties, Mississippi. Subunit 4A
is located between Double Branch and U.S. Highway 49 in Forrest and
Stone Counties, Mississippi. It is 0.3 mi (4.8 km) northwest of Bond
and 0.5 mi (0.8 km) southwest of Maxie, and is located mostly within
the boundary of the De Soto Ranger District of the De Soto National
Forest. Most of this subunit (8,914 ac (3,607 ha)) is on Federal lands
within the De Soto National Forest, with the remainder of the subunit
(6,303 ac (2,551 ha)) on private land.
(ii) Subunit 4B--Forrest, Perry, and Stone Counties, Mississippi.
Subunit 4B is located between Black Creek and U.S. Highway 49 in
Forrest, Perry, and Stone Counties, Mississippi. It is directly
adjacent to Maxie on the western border, and is located mostly within
the boundary of the De Soto Ranger District of the De Soto National
Forest. Most of this subunit (28,232 ac (11,425 ha)) is on Federal
lands within the De Soto National Forest, with the remainder of the
subunit (16,079 ac (6,507 ha)) on private land.
(iii) Map of Unit 4 (Maxie) is provided at paragraph (8)(ii) of
this entry.
(10) Unit 5: Howison--Harrison and Stone Counties, Mississippi.
(i) Unit 5 encompasses approximately 12,949 ac (5,240 ha) on
Federal and private land in Harrison and Stone Counties, Mississippi.
The majority of this unit (9,430 ac (3,816 ha)) is on Federal lands
within the De Soto National Forest, with the remainder of the unit on
private lands (3,519 ac (1,424 ha)). This unit is located between
Tuxachanie Creek and U.S. Highway 49, approximately 0.4 mi (0.6 km)
east of Howison and 1.3 mi (2 km) southeast of McHenry. The unit is
bordered on the northern edge by E. McHenry Road and on the western
edge by U.S. Highway 49 (buffered from the highway by at least 328 ft
(100 m)).
(ii) Map of Unit 5 (Howison) follows:
[[Page 11267]]
[GRAPHIC] [TIFF OMITTED] TR26FE20.003
(11) Unit 6: Marion County Wildlife Management Area (WMA)--Marion
County, Mississippi.
(i) Unit 6 encompasses approximately 11,856 ac (4,798 ha) on State
and private land in Marion County, Mississippi. The unit is divided
between State lands (5,587 ac (2,261 ha)) and private lands (6,270 ac
(2,537 ha)). This unit is located between the Upper Little Creek and
Lower Little Creek, 7.0 mi (11 km) southeast of Columbia. It is located
0.8 mi (1.3 km) north of State Highway 13, and 2.6 mi (4.2 km) south of
U.S. Highway 98. Approximately half of Unit 6 is within the Marion
County Wildlife Management Area.
(ii) Map of Unit 6 (Marion County WMA) follows:
[[Page 11268]]
[GRAPHIC] [TIFF OMITTED] TR26FE20.004
(12) Unit 7: Jones Branch--Clarke County, Alabama.
(i) Unit 7 encompasses approximately 33,395 ac (13,515 ha) of
private land in Clarke County, Alabama. This unit is bordered by
Salitpa Creek to the south, Tallahatta Creek to the north, and Harris
Creek to the west. It is located approximately 2.7 mi (4.3 km)
southeast of Campbell and 1.1 mi (1.8 km) north of the intersection of
Old Mill Pond Road and Reedy Branch Road.
(ii) Map of Unit 7 (Jones Branch) follows:
[[Page 11269]]
[GRAPHIC] [TIFF OMITTED] TR26FE20.005
(13) Unit 8: Fred T. Stimpson Special Opportunity Area (SOA)--
Clarke County, Alabama.
(i) Unit 8 encompasses approximately 5,943 ac (2,405 ha) on State
and private land in Clarke County, Alabama. Over 60 percent of the unit
(3,843 ac (1,555 ha)) is on State lands, with the remainder of the unit
(2,100 ac (850 ha)) on private land. This unit is located between Sand
Hill Creek and the Tombigbee River, is approximately 1 mi (1.6 km)
north of Carlton, and is 1.0 mi (1.6 km) south of the intersection of
County Road 15 and Christian Vall Road. The southern two-thirds of this
unit is on the Fred T. Stimpson SOA.
(ii) Map of Unit 8 (Fred T. Stimpson SOA) follows:
[[Page 11270]]
[GRAPHIC] [TIFF OMITTED] TR26FE20.006
* * * * *
Dated: January 28, 2020.
Aurelia Skipwith,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2020-02281 Filed 2-25-20; 8:45 am]
BILLING CODE 4333-15-C