[Federal Register Volume 88, Number 118 (Wednesday, June 21, 2023)]
[Proposed Rules]
[Pages 40160-40189]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-12315]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R4-ES-2022-0179; FF09E21000 FXES1111090FEDR 234]
RIN 1018-BE93
Endangered and Threatened Wildlife and Plants; Endangered Species
Status for Southern Elktoe and Designation of Critical Habitat
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
list the southern elktoe (Alasmidonta triangulata), a freshwater mussel
species endemic to the Apalachicola-Chattahoochee-Flint Basin of
Alabama, Georgia, and Florida, as an endangered species and designate
critical habitat under the Endangered Species Act of 1973, as amended
(Act). This determination also serves as our 12-month finding on a
petition to list the southern elktoe. After a review of the best
available scientific and commercial information, we find that listing
the species is warranted. Accordingly, we propose to list the southern
elktoe as an endangered species under the Act. We also propose to
designate critical habitat for the southern elktoe under the Act. In
total, approximately 578 river miles (929 river kilometers) in Russell
County, Alabama; Calhoun, Franklin, Gadsden, Gulf, Jackson, and Liberty
Counties, Florida; and Baker, Coweta, Crawford, Decatur, Dooly,
Dougherty, Fayette, Harris, Macon, Meriwether, Mitchell, Peach, Pike,
Spalding, Sumter, Talbot, Taylor, and Upson Counties, Georgia, fall
within the boundaries of the proposed critical habitat designation. We
announce the availability of a draft economic analysis of the proposed
designation of critical habitat for southern elktoe. If we finalize
this rule as proposed, it would add this species to the List of
Endangered and Threatened Wildlife and extend the Act's protections to
the species and its critical habitat.
DATES: We will accept comments received or postmarked on or before
August 21, 2023. Comments submitted electronically using the Federal
eRulemaking Portal (see ADDRESSES, below) must be received by 11:59
p.m. eastern time on the closing date. We must receive requests for a
public hearing, in writing, at the address shown in FOR FURTHER
INFORMATION CONTACT by August 7, 2023.
ADDRESSES: You may submit comments by one of the following methods:
(1) Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov. In the Search box, enter FWS-R4-ES-2022-0179,
which is the docket number for this rulemaking. Then, click on the
Search button. On the resulting page, in the panel on the left side of
the screen, under the Document Type heading, check the Proposed Rule
box to locate this document. You may submit a comment by clicking on
``Comment.''
(2) By hard copy: Submit by U.S. mail to: Public Comments
Processing, Attn: FWS-R4-ES-2022-0179, U.S. Fish and Wildlife Service,
MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
We request that you send comments only by the methods described
above. We will post all comments on https://www.regulations.gov. This
generally means that we will post any personal information you provide
us (see Information Requested, below, for more information).
Availability of supporting materials: For the proposed critical
habitat designation, the coordinates or plot points or both from which
the maps are generated are included in the decision file and are
available at https://www.regulations.gov under Docket No. FWS-R4-ES-
2022-0179. The species status assessment (SSA) report is also available
in the docket on https://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Lourdes Mena, Florida Classification
and Recovery Division Manager, U.S. Fish and Wildlife Service, Florida
Ecological Services Field Office, 7915 Baymeadows Way, Suite 200,
Jacksonville, FL 32256-7517; telephone 904-731-3134. Individuals in the
United States who are deaf, deafblind, hard of hearing, or have a
speech disability may dial 711 (TTY, TDD, or TeleBraille) to access
telecommunications relay services. Individuals outside the United
States should use the relay services offered within their country to
make international calls to the point-of-contact in the United States.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. Under the Act, a species warrants
listing if it meets the definition of an endangered species (in danger
of extinction throughout all or a significant portion of its range) or
a threatened species (likely to become endangered within the
foreseeable future throughout all or a significant portion of its
range). If we determine that a species warrants listing, we must list
the species promptly and designate the species' critical habitat to the
maximum extent prudent and determinable. We have determined that the
southern elktoe meets the definition of an endangered species;
therefore, we are proposing to list it as such and proposing a
designation of its critical habitat. Both listing a species as an
endangered or threatened species and designating critical habitat can
be completed only by issuing a rule through the Administrative
Procedure Act rulemaking process (5 U.S.C. 551 et seq.).
What this document does. We propose to list the southern elktoe as
an endangered species, and we propose the designation of critical
habitat for the species.
The basis for our action. Under the Act, we may determine that a
species is an endangered or threatened species because of any of five
factors: (A) The present or threatened destruction, modification, or
curtailment of its habitat or range; (B) overutilization for
commercial, recreational, scientific, or educational purposes; (C)
disease or predation; (D) the inadequacy of existing regulatory
mechanisms; or (E) other natural or manmade factors affecting its
continued existence. The primary threat to the southern elktoe is
habitat loss and degradation (Factor A) resulting from increased
sedimentation, degraded water quality, insufficient water quantity, and
loss of habitat connectivity.
Section 4(a)(3) of the Act requires the Secretary of the Interior
(Secretary) to designate critical habitat concurrent with listing to
the maximum extent prudent and determinable. Section 3(5)(A) of the Act
defines critical habitat as (i) the specific areas within the
geographical area occupied by the species, at the time it is listed, on
which are found those physical or biological
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features (I) essential to the conservation of the species and (II)
which may require special management considerations or protections; and
(ii) specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination by the Secretary
that such areas are essential for the conservation of the species.
Section 4(b)(2) of the Act states that the Secretary must make the
designation on the basis of the best scientific data available and
after taking into consideration the economic impact, the impact on
national security, and any other relevant impacts of specifying any
particular area as critical habitat.
Information Requested
We intend that any final action resulting from this proposed rule
will be based on the best scientific and commercial data available and
be as accurate and as effective as possible. Therefore, we request
comments or information from other governmental agencies, Native
American Tribes, the scientific community, industry, or any other
interested parties concerning this proposed rule. We particularly seek
comments concerning:
(1) The species' biology, range, and population trends, including:
(a) Biological or ecological requirements of the species, including
habitat requirements for feeding, breeding, and sheltering;
(b) Genetics and taxonomy;
(c) Historical and current range, including distribution patterns;
(d) Historical and current population levels, and current and
projected trends; and
(e) Past and ongoing conservation measures for the species, its
habitat, or both.
(2) Factors that may affect the continued existence of the species,
which may include habitat modification or destruction, overutilization,
disease, predation, the inadequacy of existing regulatory mechanisms,
or other natural or manmade factors.
(3) Biological, commercial trade, or other relevant data concerning
any threats (or lack thereof) to this species and existing regulations
that may be addressing those threats.
(4) Additional information concerning the historical and current
status, range, distribution, and population size of this species,
including the locations of any additional populations of this species.
(5) Specific information on:
(a) The amount and distribution of southern elktoe habitat;
(b) Any additional areas occurring within the range of the species,
the Apalachicola, Chattahoochee, Flint, and Chipola river basins in
Georgia, Florida, and Alabama, that should be included in the
designation because they (i) are occupied at the time of listing and
contain the physical or biological features that are essential to the
conservation of the species and that may require special management
considerations, or (ii) are unoccupied at the time of listing and are
essential for the conservation of the species; and
(c) Special management considerations or protection that may be
needed in critical habitat areas we are proposing, including managing
for the potential effects of climate change; and
(d) To evaluate the potential to include areas not occupied at the
time of listing, we particularly seek comments regarding whether
occupied areas are adequate for the conservation of the species.
Additionally, please provide specific information regarding whether or
not unoccupied areas would, with reasonable certainty, contribute to
the conservation of the species and contain at least one physical or
biological feature essential to the conservation of the species. We
also seek comments or information regarding whether areas not occupied
at the time of listing qualify as habitat for the species.
(6) Land use designations and current or planned activities in the
subject areas and their possible impacts on proposed critical habitat.
(7) Any probable economic, national security, or other relevant
impacts of designating any area that may be included in the final
designation, and the related benefits of including or excluding
specific areas.
(8) Information on the extent to which the description of probable
economic impacts in the draft economic analysis is a reasonable
estimate of the likely economic impacts and any additional information
regarding probable economic impacts that we should consider.
(9) Whether any specific areas we are proposing for critical
habitat designation should be considered for exclusion under section
4(b)(2) of the Act, and whether the benefits of potentially excluding
any specific area outweigh the benefits of including that area under
section 4(b)(2) of the Act. If you think we should exclude any
additional areas, please provide information supporting a benefit of
exclusion.
(10) Whether we could improve or modify our approach to designating
critical habitat in any way to provide for greater public participation
and understanding, or to better accommodate public concerns and
comments.
Please include sufficient information with your submission (such as
scientific journal articles or other publications) to allow us to
verify any scientific or commercial information you include.
Please note that submissions merely stating support for, or
opposition to, the action under consideration without providing
supporting information, although noted, do not provide substantial
information necessary to support a determination. Section 4(b)(1)(A) of
the Act directs that determinations as to whether any species is an
endangered or a threatened species must be made solely on the basis of
the best scientific and commercial data available, and section 4(b)(2)
of the Act directs that the Secretary shall designate critical habitat
on the basis of the best scientific data available.
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in ADDRESSES. We request that you
send comments only by the methods described in ADDRESSES.
If you submit information via https://www.regulations.gov, your
entire submission--including any personal identifying information--will
be posted on the website. If your submission is made via a hardcopy
that includes personal identifying information, you may request at the
top of your document that we withhold this information from public
review. However, we cannot guarantee that we will be able to do so. We
will post all hardcopy submissions on https://www.regulations.gov.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection on https://www.regulations.gov.
Because we will consider all comments and information we receive
during the comment period, our final determinations may differ from
this proposal. Based on the information we receive (and any comments on
that new information), we may conclude that the species is threatened
instead of endangered, or we may conclude that the species does not
warrant listing as either an endangered species or a threatened
species. For critical habitat, our final designation may not include
all areas proposed, may include some additional areas that meet the
definition of critical habitat, or may exclude some areas if we find
the benefits of exclusion outweigh the benefits of inclusion and
exclusion will not result in the extinction of the species.
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Public Hearing
Section 4(b)(5) of the Act provides for a public hearing on this
proposal, if requested. Requests must be received by the date specified
in DATES. Such requests must be sent to the address shown in FOR
FURTHER INFORMATION CONTACT. We will schedule a public hearing on this
proposal, if requested, and announce the date, time, and place of the
hearing, as well as how to obtain reasonable accommodations, in the
Federal Register and local newspapers at least 15 days before the
hearing. We may hold the public hearing in person or virtually via
webinar. We will announce any public hearing on our website, in
addition to the Federal Register. The use of virtual public hearings is
consistent with our regulations at 50 CFR 424.16(c)(3).
Previous Federal Actions
On April 20, 2010, we received a petition from the Center for
Biological Diversity (CBD), Alabama Rivers Alliance, Clinch Coalition,
Dogwood Alliance, Gulf Restoration Network, Tennessee Forests Council,
and West Virginia Highlands Conservancy (referred to below as the CBD
petition) to list 404 aquatic, riparian, and wetland species, including
the southern elktoe, as endangered or threatened species under the Act.
On September 27, 2011, we published a 90-day finding that the petition
contained substantial information indicating listing may be warranted
for the species (76 FR 59836). This document serves as our 12-month
finding on the April 20, 2010, petition.
Peer Review
A species status assessment (SSA) team prepared an SSA report for
the southern elktoe. The SSA team was composed of Service biologists,
in consultation with other scientists with southern elktoe expertise.
The SSA report represents a compilation of the best scientific and
commercial data available concerning the status of the species,
including the impacts of past, present, and future factors (both
negative and beneficial) affecting the species.
In accordance with our joint policy on peer review published in the
Federal Register on July 1, 1994 (59 FR 34270), and our August 22,
2016, memorandum updating and clarifying the role of peer review of
listing actions under the Act, we solicited independent scientific
review of the information contained in the southern elktoe SSA report.
We sent the SSA report to four independent peer reviewers and received
responses from two. Results of this structured peer review process can
be found at https://regulations.gov. In preparing this proposed rule,
we incorporated the results of these reviews, as appropriate, into the
SSA report, which is the foundation for this proposed rule.
Summary of Peer Reviewer Comments
As discussed under Peer Review, above, we received comments from
two peer reviewers on the draft SSA report. We reviewed all comments we
received from the peer reviewers for substantive issues and new
information regarding the information contained in the SSA report. The
peer reviewers generally concurred with our methods and conclusions,
and provided additional information, clarifications, and suggestions
that were incorporated into the SSA report. No substantive changes to
our analysis and conclusions within the SSA report were deemed
necessary, and peer reviewer comments are addressed in version 1.1 of
the SSA report.
I. Proposed Listing Determination
Background
A thorough review of the taxonomy, life history, and ecology of the
southern elktoe (Alasmidonta triangulata) is presented in the SSA
report (version 1.1; Service 2022, pp. 17-25).
The southern elktoe (Alasmidonta triangulata; Lea 1858) is a
medium-sized freshwater mussel that reaches up to 70 millimeters (mm)
(2.8 inches (in)) in length. The southern elktoe has a moderately thin
and somewhat triangular shell. Adults are olive brown to black in
color, usually with obscured rays; juveniles are typically yellowish
brown to olive, often with dark green rays. The species can be
distinguished by its moderately to highly inflated shell, sharp
posterior ridge, and umbo (i.e., hinge area of shell which is elevated
well above the hinge line of the shell) (Williams et al. 2014, p. 132).
The southern elktoe is endemic to the Apalachicola, Chattahoochee,
and Flint River (ACF) basins of Alabama, Florida, and Georgia. Although
surveys since 2000 have documented the species as extant in all four
large river basins of the ACF Basin (Apalachicola River, Chipola River,
Chattahoochee River, and the Flint River), the southern elktoe is
considered very rare in distribution (Clench and Turner 1956, entire;
Brim Box and Williams 2000, entire). In the ACF Basin, the southern
elktoe inhabits permanently flowing creeks and rivers with natural
hydrologic regimes. The species most often occurs in areas with slow
current along stream margins and prefers deposition habitats consisting
of mixtures of silty mud, sand, and gravel. Unlike other freshwater
mussel species, the southern elktoe does not occur in dense beds
(Williams 2015, p. 3).
The southern elktoe, like other freshwater mussels, has a complex
life history involving an obligate parasitic larval life stage that is
dependent on a suitable host fish. During reproduction, males release
sperm into the water column, females take up the sperm, and the sperm
fertilizes eggs held in the female. The developing larvae (glochidia)
remain in the female's gill chamber until they mature and are ready to
be released. This reproductive strategy requires that adult mussels of
both sexes be in proximity to one another; additionally, fish host
presence must overlap with brooding mussels to allow infestation. A
reproductive study found that southern elktoe, like other Alasmidonta
species (e.g., A. arcula), use host fish species from the sucker
family, Catostomidae, as primary glochidial hosts (Fobian et al. 2018,
p. 9).
Adult freshwater mussels are suspension-feeders and filter
particles from the water column. Mussels may also obtain food by
deposit feeding using cilia on their foot to move food particles into
the shell. Mussel diets consist of a mixture of algae, bacteria,
detritus, and microscopic animals.
Little is known about growth or longevity of southern elktoe;
therefore, we rely on information for closely related species to help
summarize characteristics of this species. Species in the tribe
Andontini, which includes the southern elktoe, generally share the
following traits: moderate to high growth rate, moderate life span,
early maturity, and low to moderate fecundity. Typically, species of
Alasmidonta reach maximum ages of 10-18 years and mature at 2-3 years
(Haag and Rypel 2011, p. 239; Haag 2012, pp. 210-214).
Regulatory and Analytical Framework
Regulatory Framework
Section 4 of the Act (16 U.S.C. 1533) and the implementing
regulations in title 50 of the Code of Federal Regulations set forth
the procedures for determining whether a species is an endangered
species or a threatened species, issuing protective regulations for
threatened species, and designating critical habitat for endangered and
threatened species. In 2019, jointly with the National Marine Fisheries
Service, the Service issued a final rule that revised the regulations
in 50 CFR part 424 regarding how we add, remove, and reclassify
endangered and threatened
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species and the criteria for designating listed species' critical
habitat (84 FR 45020; August 27, 2019). On the same day, the Service
also issued final regulations that, for species listed as threatened
species after September 26, 2019, eliminated the Service's general
protective regulations automatically applying to threatened species the
prohibitions that section 9 of the Act applies to endangered species
(84 FR 44753; August 27, 2019).
The Act defines an ``endangered species'' as a species that is in
danger of extinction throughout all or a significant portion of its
range, and a ``threatened species'' as a species that is likely to
become an endangered species within the foreseeable future throughout
all or a significant portion of its range. The Act requires that we
determine whether any species is an endangered species or a threatened
species because of any of the following factors:
(A) The present or threatened destruction, modification, or
curtailment of its habitat or range;
(B) Overutilization for commercial, recreational, scientific, or
educational purposes;
(C) Disease or predation;
(D) The inadequacy of existing regulatory mechanisms; or
(E) Other natural or manmade factors affecting its continued
existence.
These factors represent broad categories of natural or human-caused
actions or conditions that could have an effect on a species' continued
existence. In evaluating these actions and conditions, we look for
those that may have a negative effect on individuals of the species, as
well as other actions or conditions that may ameliorate any negative
effects or may have positive effects.
We use the term ``threat'' to refer in general to actions or
conditions that are known to or are reasonably likely to negatively
affect individuals of a species. The term ``threat'' includes actions
or conditions that have a direct impact on individuals (direct
impacts), as well as those that affect individuals through alteration
of their habitat or required resources (stressors). The term ``threat''
may encompass--either together or separately--the source of the action
or condition or the action or condition itself.
However, the mere identification of any threat(s) does not
necessarily mean that the species meets the statutory definition of an
``endangered species'' or a ``threatened species.'' In determining
whether a species meets either definition, we must evaluate all
identified threats by considering the species' expected response and
the effects of the threats--in light of those actions and conditions
that will ameliorate the threats--on an individual, population, and
species level. We evaluate each threat and its expected effects on the
species, then analyze the cumulative effect of all of the threats on
the species as a whole. We also consider the cumulative effect of the
threats in light of those actions and conditions that will have
positive effects on the species, such as any existing regulatory
mechanisms or conservation efforts. The Secretary determines whether
the species meets the definition of an ``endangered species'' or a
``threatened species'' only after conducting this cumulative analysis
and describing the expected effect on the species now and in the
foreseeable future.
The Act does not define the term ``foreseeable future,'' which
appears in the statutory definition of ``threatened species.'' Our
implementing regulations at 50 CFR 424.11(d) set forth a framework for
evaluating the foreseeable future on a case-by-case basis. The term
``foreseeable future'' extends only so far into the future as we can
reasonably determine that both the future threats and the species'
responses to those threats are likely. In other words, the foreseeable
future is the period of time in which we can make reliable predictions.
``Reliable'' does not mean ``certain''; it means sufficient to provide
a reasonable degree of confidence in the prediction. Thus, a prediction
is reliable if it is reasonable to depend on it when making decisions.
It is not always possible or necessary to define foreseeable future
as a particular number of years. Analysis of the foreseeable future
uses the best scientific and commercial data available and should
consider the timeframes applicable to the relevant threats and to the
species' likely responses to those threats in view of its life-history
characteristics. Data that are typically relevant to assessing the
species' biological response include species-specific factors such as
lifespan, reproductive rates or productivity, certain behaviors, and
other demographic factors.
Analytical Framework
The SSA report documents the results of our comprehensive
biological review of the best scientific and commercial data regarding
the status of the species, including an assessment of the potential
threats to the species. The SSA report does not represent our decision
on whether the species should be proposed for listing as an endangered
or threatened species under the Act. However, it does provide the
scientific basis that informs our regulatory decisions, which involve
the further application of standards within the Act and its
implementing regulations and policies.
To assess southern elktoe's viability, we used the three
conservation biology principles of resiliency, redundancy, and
representation (Shaffer and Stein 2000, pp. 306-310). Briefly,
resiliency is the ability of the species to withstand environmental and
demographic stochasticity (for example, wet or dry, warm or cold
years), redundancy is the ability of the species to withstand
catastrophic events (for example, droughts, large pollution events),
and representation is the ability of the species to adapt to both near-
term and long-term changes in its physical and biological environment
(for example, climate conditions, pathogens). In general, species
viability will increase with increases in resiliency, redundancy, and
representation (Smith et al. 2018, p. 306). Using these principles, we
identified the species' ecological requirements for survival and
reproduction at the individual, population, and species levels, and
described the beneficial and risk factors influencing the species'
viability.
The SSA process can be categorized into three sequential stages.
During the first stage, we evaluated the individual species' life-
history needs. The next stage involved an assessment of the historical
and current condition of the species' demographics and habitat
characteristics, including an explanation of how the species arrived at
its current condition. The final stage of the SSA involved making
predictions about the species' responses to positive and negative
environmental and anthropogenic influences. Throughout all of these
stages, we used the best available information to characterize
viability as the ability of a species to sustain populations in the
wild over time. We use this information to inform our regulatory
decision.
The following is a summary of the key results and conclusions from
the SSA report; the full SSA report can be found at Docket No. FWS-R4-
ES-2022-0179 on https://www.regulations.gov.
Summary of Biological Status and Threats
In this discussion, we review the biological condition of the
species and its resources, and the threats that influence the species'
current and future condition, in order to assess the species' overall
viability and the risks to that viability.
[[Page 40164]]
Species Needs
We assessed the best available information for the southern elktoe
to identify the physical and biological needs to support individual
fitness at all life stages (Service 2022, pp. 11-15). When information
specific to the southern elktoe is not available, we rely on
generalized freshwater mussel literature, as well as information on six
other ACF Basin freshwater mussel species listed under the Act (fat
threeridge (Amblema neislerii), shinyrayed pocketbook (Hamiota
subangulata), Gulf moccasinshell (Medionidus penicillatus), oval pigtoe
(Pleurobema pyriforme), Chipola slabshell (Elliptio chipolaensis), and
purple bankclimber (Elliptoideus sloatianus); see 63 FR 12664; March
16, 1998). Note that the Ochlockonee moccasinshell (Medionidus
simpsonianus) was also included in that rule but does not occur in the
ACF Basin. In the remainder of this document, we will refer to the six
species collectively as ``the listed ACF mussels.''
Important habitat components for the southern elktoe, derived from
the listed ACF mussels, are permanently flowing water and
geomorphologically stable stream channels. Adequate flow levels are
required to deliver oxygen, enable passive reproduction, transport food
items to the sedentary juvenile and adult mussels, remove wastes and
fine sediments, and maintain good water quality. Further, to maintain
mussel populations over time, a natural flow regime (including
magnitude, frequency, duration, and seasonality of discharge) is
critical for the exchange of nutrients, movement and spawning
activities of fish hosts, and maintenance of instream habitats. The
southern elktoe is dependent upon stable stream channels with areas
with low shear stress so that sediments on the stream bottom remain
stable during high flow events.
Each life stage (fertilized egg, glochidia, juvenile, and adult)
has specific resource and life-history requirements that must be met to
survive. The primary requirements for all life stages of the southern
elktoe are flowing waters with a moderate temperature (generally, less
than 32 degrees Celsius ([deg]C)), adequate dissolved oxygen
(generally, greater than 5.0 milligrams per liter (mg/L)), and good
water quality. Early life stages are uniformly sensitive to many
chemical compounds including ammonia, heavy metals, pharmaceuticals,
and some commonly used pesticides and surfactants. In order for eggs to
be fertilized, they require mature males upstream from mature females
with suitable flows for fertilization to occur. Fertilized eggs require
low to moderate levels of suspended solids and appropriate spawning
temperatures. Glochidia require the presence of catostomid host fish
and suitable water levels to permit host-glochidia interactions.
Juvenile and adult needs are similar and include areas with low shear
stress, substrates consisting of stable sand and gravel free from
excessive silt, and the presence of adequate food availability
(bacteria, algae, diatoms, detritus) in the water column.
The southern elktoe requires the presence of host fishes to
complete its life cycle. In host fish trials, southern elktoe glochidia
primarily metamorphosed on species of the sucker family, Catostomidae
(Fobian et al. 2018, p. 9). Several species from the sucker family are
found in the ACF Basin, but detailed studies on local ecology or
population trends of species identified as probable host fishes for the
southern elktoe, or catostomids in general, are limited. Additionally,
stressors to southern elktoe such as habitat degradation, barriers to
movement, and altered flow regimes also negatively affect catostomids;
however, there is uncertainty regarding the extent to which host fish
availability may influence southern elktoe populations.
Connectivity among populations is also important for southern
elktoe viability. Although the species' capability to disperse is
evident through historical occurrence of a wide range of rivers and
streams, the fragmentation of populations by small and large
impoundments has resulted in isolation and only remnant patches of what
once was occupied contiguous river and stream habitat. Genetic exchange
occurs between and among mussel beds via sperm drift, host fish
movement, and movement of mussels during high flow events. For genetic
exchange to occur, connectivity must be maintained, and proximity of
male and female southern elktoes is essential. Most freshwater mussels,
including the southern elktoe, are found in mussel beds with other
species that vary in size and density, and elktoes have very sporadic
occurrences within these beds. These beds are often separated by stream
reaches in which mussels are absent or rare (Vaughn 2012, p. 983).
Because the species is often a component of these healthy mussel
assemblages within optimal mussel habitats, maintaining connectivity
between these populations is necessary for the species to maintain
resiliency over time.
Threats Analysis
The following discussions include evaluations of three main
influences on southern elktoe viability: (1) habitat degradation or
loss, (2) presence of host fish, and (3) nonnative species. Full
descriptions of each of the factors and their sources, including
specific examples where threats are impacting the species or its
habitat, are available in chapter 5 of the SSA report (Service 2022,
pp. 70-96). Potential impacts associated with other threats such as
disease, parasites, predation, sea level rise, and harvest/
overcollection were evaluated, but these threats were found to have
minimal effects on the viability of the species based on the best
available information and are not covered in detail here.
Habitat Degradation or Loss
Agriculture--The advent of intensive row crop agricultural
practices has been considered as a potential factor in freshwater
mussel decline and species extirpation in the eastern United States
(Peacock et al. 2005, p. 550). Based on the U.S. Geological Survey's
(USGS) National Land Cover Database (NLCD) 2016, approximately 20
percent of the ACF Basin is used for cropland. Agricultural influences
within the ACF Basin are most apparent in the lower areas of the
Chattahoochee (Alabama and Georgia), Flint (Georgia), and Chipola
Basins (Alabama and Florida), and in the northern areas of the
Apalachicola Basin (Florida).
Pumping groundwater for agricultural practices is contributing to
decreased spring outflows and lowered stream levels in the ACF Basin.
Agriculture is the largest source of water use in the ACF Basin,
accounting for 35 percent of all water withdrawals in 2010 (Lawrence
2016, p. 29). In the ACF Basin, spring-fed streams and small rivers may
experience 50 to 100 percent reductions in flows during droughts
(Georgia Water Coalition 2017, p. 3), and the additive effect of
groundwater withdrawals can exacerbate drought conditions during dry
years (Albertson and Torak 2002, p. 22; Mitra et al. 2016, entire). In
the lower Flint River basin, an extensive conversion to center pivot
irrigation systems increased groundwater withdrawals 100 percent
between 1970 and 1976 (Rugel et al. 2011, p. 2), and the Lower Flint
River experiences an approximate 20 percent decrease in median flow
levels because of irrigation during drought years (Singh et al. 2016,
p. 279).
[[Page 40165]]
During periods of drought, streams may cease to flow entirely, or
be reduced to isolated pools with high temperatures, low dissolved
oxygen (DO), low food resources, and concentrated contaminants.
Maintaining adequate water levels in streams is particularly important
during the reproductive season (e.g., October to March for southern
elktoe), as suitable water levels are required to permit host-glochidia
interactions. Within the Flint River basin, decreases in flow velocity
and DO have been highly correlated to mussel mortality (Johnson et al.
2001, p. 6). Drought-related responses could affect the long-term
viability of mussel populations in the lower Flint River basin by
hindering reproductive processes.
Agriculture in the ACF Basin also contributes to an increase in
contaminants and sediment entering streams and rivers. Contaminants
from agriculture can include excess nutrients from poultry farms and
livestock feedlots, and pesticides and fertilizers from row crop
agriculture (Couch et al. 1996, p. 52; Frick et al. 1998, p. 2).
Although moderate levels of siltation from sediment are common in many
ACF Basin streams, particularly in the Piedmont, livestock grazing in
riparian buffers adds excess sediment and alters stream hydrology by
increasing runoff and erosion (Agouridis 2005, p. 593, Couch et al.
1996, p. 7). The concentrations of contaminants and sediment input
associated with crop lands may negatively affect the viability of
southern elktoe populations, especially given the large extent of
agricultural activities within the southern elktoe's range (also see
Water Quality, below).
Development--With urban development, watersheds become more
impervious. Impervious surfaces result in increased and accelerated
storm-water runoff, which can alter stream sediment regimes by
increasing bank erosion and bed scouring (Brim Box and Mossa 1999, p.
103). Stream bank erosion and scouring contributes up to two-thirds of
the total sediment yield in urbanized watersheds (Trimble 1997, p.
1443). The increased and accelerated flows and incising associated with
storm-water runoff has been shown to lower mussel richness and
abundance through increased shear stress and bed mobilization (Allen
and Vaughn 2010, p. 390; Doyle et al. 2000, p. 177; Layzer and Madison
1995, p. 337).
Water quantity in urban areas is affected by water consumption and
runoff from impervious surfaces. Impervious surfaces and other areas
with reduced permeability, such as grass and barren land, can lead to
high flow events from rainfall, and the reduction in ground penetration
leads to reduced groundwater recharge and thus reduced baseflows during
dry periods (U.S. Army Corps of Engineers (USACE) 2016, pp. 2-13). In
addition, contamination of aquatic habitats by pesticides, excess
nutrients, heavy metals, pharmaceuticals, and organic pollutants is
widespread in urban areas and associated with point (e.g., wastewater
treatment plants) and nonpoint sources (Paul and Meyer 2001, pp. 341-
346). The widespread and pervasive extent of non-permitted, nonpoint
discharges in urban systems has been posited as a key factor in the
biological degradation frequently encountered in urban aquatic
environments (Duda et al. 1982, pp. 1144-1145; see Water Quality,
below).
Development and urbanization activities that may contribute to the
southern elktoe habitat degradation and loss is mostly concentrated
near Atlanta, Columbus, and Albany, Georgia, with Atlanta having a
larger influence than the two smaller cities. Although the Atlanta
metro region occupies a relatively small portion of the Chattahoochee
and Flint River headwaters, it has a large ecological footprint and
substantial downstream effects.
River Regulation--The ACF Basin includes rivers and streams with
both unregulated (natural) and regulated flow. The natural rivers
exhibit a relatively consistent seasonal pattern, responding to
precipitation and drought periods as expected with short periods of
high flows and sometimes prolonged periods of low flows, respectively.
Regulated streams exhibit an induced variable daily pattern, with daily
variations due to hydroelectric power generation, navigation releases,
lower flood peaks, and higher sustained minimum flows through dry
periods as the upstream reservoirs augment low flows. The alterations
in flow regimes that result from regulated rivers can have a direct
impact on freshwater mussels and their host fish. The timing and rates
of discharges from dams may interrupt the ability of the host fish to
become infected with glochidia, and the settlement of the juvenile
mussels once released.
Habitat fragmentation as a result of dam construction is one of the
primary causes of loss of mussel diversity (Haag and Williams 2014, pp.
47-48). Upstream effects resulting from dams include changes from
flowing water to still water habitats, increased depths and
sedimentation, decreased dissolved oxygen, and changes in fish
communities that can affect mussel reproductive success by separating
host fish from mussel populations (Neves et al. 1997, p. 63). Effects
downstream of dams include alterations in flow regime, scouring,
seasonal dissolved oxygen dips, reduced water temperatures, and changes
in fish community structure (Neves et al. 1997, p. 63).
Numerous small rivers and tributaries of the ACF Basin have been
transformed by dams and channel alterations (Hupp 2000, entire; Light
et al. 2006, pp. 29-46; Price et al. 2006, entire). Additionally, there
are 16 mainstem impoundments within the basin (Brim Box and Williams
2000, p. 4).
The impacts from navigational channels within the ACF Basin may
also contribute to loss of habitat for the southern elktoe and alter
habitats for host fish. A navigation channel is maintained on the
Apalachicola River for 172 kilometers (km) (107 miles (mi)) between the
Gulf Intracoastal Waterway and Jim Woodruff Lock and Dam; 249 km (155
mi) up the Chattahoochee River to Columbus, Georgia, and Phenix City,
Alabama; and 45 km (28 mi) up the Flint River to Bainbridge, Georgia.
The channelization that results from these navigation channels can
affect a stream's physical (e.g., erosion rates, depth, habitat
diversity, geomorphic stability, riparian canopy) and biological (e.g.,
species composition and abundance, biomass, growth rates)
characteristics.
Water Quality--As a group, mussels are often the first organisms to
respond to water quality impacts (Haag 2012, p. 355), with mussel early
life stages frequently showing the highest sensitivity to many chemical
compounds (Augspurger et al. 2007, p. 2025-2026). Contamination or
alteration to water chemistry can result from both point and nonpoint
sources, including spills, industrial sources, municipal effluents, and
runoff from agricultural and developed areas. These sources may
contribute to changes in dissolved oxygen (DO), sediment loading, and
the concentrations of nitrogen, phosphorus, ammonia, heavy metals,
pesticides, and pharmaceuticals in the affected waterways. Although
there are no current data for the tolerance levels of southern elktoe
to specific pollutants, there is some general information available on
the relationships and importance of these parameters to freshwater
mussels and aquatic life.
Ammonia is one of the most common and widespread pollutants found
in freshwaters, with nitrogen-based fertilizers and industrial and
domestic wastewater among the most significant sources of ammonia in
streams.
[[Page 40166]]
Freshwater mussels are sensitive to elevated concentrations of ammonia,
especially its un-ionized form (Augspurger et al. 2003, pp. 2571-2574;
Wang et al. 2007, pp. 2039-2046), and exposure to ammonia has been
linked to mussel recruitment failure when present in sediments (Strayer
and Malcom 2012, p. 1787). High nitrogen loads within the ACF Basin
correspond to sub-watersheds with high urban and row cropland uses,
including the metro Atlanta area of the far Upper Flint, and in
agricultural areas of the Lower Flint and Chipola Rivers.
In 2013, the Environmental Protection Agency (EPA) adopted final
national recommended ambient water quality criteria for the protection
of aquatic life from effects of ammonia in freshwater (see 78 FR 52192;
August 22, 2013), and in 2016, the Florida Department of Environmental
Protection adopted the chronic criteria for ammonia as both the acute
and chronic values, therefore improving the ammonia standard even
further for the conservation of freshwater mussels Statewide (EPA 2016,
entire). In 2017, Georgia also addressed ammonia toxicity in a new
National Pollutant Discharge Elimination System (NPDES) Permitting
Strategy to comply with the EPA's 2013 ammonia criteria (GADNR 2017,
entire). The new criteria recommendations consider the latest
freshwater toxicity information for ammonia, including toxicity studies
for sensitive unionid mussels and gill-breathing snails (EPA 2013,
entire). We do not currently have information on specific tolerance
levels for southern elktoe regarding un-ionized ammonia, but EPA's new
criteria represents the best general target for freshwater mussels.
Still, recent work suggests that even low levels of ammonia (e.g., 1.5
mg N/L (milligrams Nitrogen per Liter)), which are below thresholds set
in the 2013 criteria, can be toxic to some mussel species (Wang et al.
2017, pp. 791-792).
Agricultural and developed lands are associated with high loadings
of nutrients and silt and sediments in streams. Suspended sediment and
total phosphorus (TP; determined by parent-rock minerals, urban land,
manure from livestock, municipal wastewater, agricultural fertilizer,
and phosphate mining) are both highest toward the northern extent of
the ACF Basin, and areas of higher concentrations coincide with the
Upper Flint and Middle Chattahoochee southern elktoe populations. For
more information on the association between land use and nitrogen,
phosphorus, and suspended sediment loads by within the ACF Basin, see
chapter 5 of the SSA report (Service 2022, pp. 82-87).
Mussels may suffer lethal and nonlethal effects from low dissolved
oxygen levels and elevated stream temperatures (Fuller 1974, pp. 240-
245; Dimock and Wright 1993, pp. 188-190; Gagnon et al. 2004, p. 675),
and are particularly susceptible to these conditions during their early
life stages (Sparks and Strayer 1998, pp. 132-133; Pandolfo et al.
2010, p. 965; Archambault et al. 2013, p. 247). The amount of DO in
water can vary due to several factors including water temperature,
nutrient levels, and water velocity. Additionally, low flow levels that
result from drought conditions can expose mussels to low DO
concentrations and high water temperatures for extended periods (Haag
and Warren 2008, pp. 1174-1176).
Heavy metal exposure can cause substantial harm to mussels. These
inorganic pollutants enter aquatic systems via point and non-point
sources and are frequently associated with urban land-use, mining, and
industrial processes such as energy production. Many lab trials have
demonstrated that mussels are among the most sensitive aquatic
organisms to several metals, including nickel, copper, and zinc (Wang
et al. 2017, pp. 792, 795).
Pesticides are widespread contaminants that have been implicated in
mussel declines. Pesticides have been linked to freshwater mussel die-
offs (Fleming et al. 1995, pp. 877-879), and lab studies show that
sensitivity of mussel glochidia and juveniles to common pesticides can
be high but is variable and difficult to predict (Conners and Black
2004, pp. 362-371; Bringolf et al. 2007, pp. 2089-2093; Wang et al.
2017, p. 792).
An emerging category of contaminants of concern to aquatic species
is pharmaceuticals, including contraceptive medications,
antidepressants, and livestock growth hormones originating from
municipal, agricultural, and industrial wastewater sources.
Pharmaceuticals have been shown to bioaccumulate in mussels downstream
of wastewater treatment plants (De Solla et al. 2016, p. 489), and in
lab studies, acute pharmaceutical exposure has caused mortality of
glochidia (Gilroy et al. 2014, p. 543) and changes to mussel physiology
(Bringolf et al. 2010, pp. 1315-1317) and behavior (Hazelton et al.
2014, pp. 31-32).
Although specific physical and chemical tolerance ranges are not
known for the southern elktoe, numeric standards for most water quality
criteria important to mussels currently adopted by the States of
Alabama, Florida, and Georgia under the Clean Water Act (33 U.S.C. 1251
are sufficient to sustain elktoe. However, some standards (such as
those for chloride, potassium, and nickel) are toxic to mussels at
levels below the current criteria (Gibson et al. 2018, pp. 244-250;
Wang et al. 2017, p. 795). In addition, standards do not exist for some
mussel toxicants (for example, the surfactant sodium dodecyl sulfate)
(Gibson et al. 2016, p. 32), nor do any exist for any of the
pharmaceuticals listed above.
Changing Climate Conditions--Climate conditions that may influence
the southern elktoe include increasing water temperatures and changes
to precipitation patterns that may result in changes to hydrologic
conditions, including increased flooding, prolonged droughts, reduced
stream flows, and changes in salinity levels (Nobles and Zhang 2011,
pp. 147-148). Climate change may affect the frequency and duration of
both drought and floods, as well as alter normal temperature regimes.
Drought can cause dewatering of freshwater habitats and low flows,
which exacerbate water quality impairments (e.g., dissolved oxygen,
temperature, contaminants), whereas floods can cause excessive erosion,
destabilize banks and bed materials, and lead to increases in
sedimentation and suspended solids.
Long-term climate records suggest that decade-long ``mega-
droughts'' have occurred periodically during the past 1,000 years in
the southeastern United States, including in the ACF Basin (Stahle et
al. 2007, entire). This suggests that while the recently observed
droughts in 2006-2008 and 2010-2012 were exceptional based on our
recent (less than 100 years) period of record, they may not be
exceptional compared to historical episodes (Pederson et al. 2012, p.
2). However, projections for the ACF watershed indicate that future
droughts are likely to be more intense, replicating those historical
conditions more frequently (Yao and Georgakakos 2011, entire).
The Intergovernmental Panel on Climate Change's (IPCC) Fifth
Assessment Report (AR5), published in 2014, presents recent climate
findings based on a set of scenarios that use representative
concentration pathways (RCPs). The recently updated flow models in the
ACF Basin allow a closer look at predicted flows by river reach for a
range of hydrologic variables into the future (the future time period
is integrated over 2045-2075). These data indicate that streams and
rivers within southern elktoe occurrence could exhibit a range of
changes in flow conditions under future climates
[[Page 40167]]
(LaFontaine et al. 2019, entire). An analysis of conditions in the ACF
Basin through 2050 under RCP 4.5 and 8.5 predicts increases in
temperature (particularly summer and fall, (Neupane et al. 2018, p.
2232)), surface water runoff, and evapotranspiration, and decreases in
soil moisture and groundwater discharge; all patterns are more
pronounced under RCP 8.5 than RCP 4.5 (Neupane et al. 2018, p. 2236).
Despite the recognition of potential climate effects on ecosystem
processes, there is uncertainty about what the exact climate future for
the southeastern United States will be and how ecosystems and species
in this region will respond. The greatest threat from climate change
may come from synergistic effects. That is, factors associated with a
changing climate may act as risk multipliers by increasing the risk and
severity of more imminent threats, especially for rivers in wide
floodplains where stream channels have room to migrate (Elliot et al.
2014, pp. 67-68). As a result, impacts from land use change might be
exacerbated under even a mild to moderate climate future. A suite of
potential hydrological impacts to waters of the southeastern United
States is possible under conditions of climate change, but climate
models generally predict increases in extreme rainfall events and
droughts of greater duration and intensity (Carter et al. 2018, pp.
745-746).
Presence of Host Fish
Host fish for southern elktoe are in the sucker family,
Catostomidae, including Moxostoma (Apalachicola redhorse, greater
jumprock, and blacktail redhorse) and Erimyzon (creek chubsucker and
lake chubsucker). Several species from the sucker family are found in
the ACF Basin, but detailed studies on local ecology or population
trends of species identified as probable host fishes for the southern
elktoe, or sucker fishes in general, are more limited. As such, there
is some uncertainty as to whether host fish availability is a limiting
factor for southern elktoe.
The primary stressors to sucker fishes in southeastern U.S. rivers
are identified as habitat degradation from urbanization and
agriculture, hydropower, and barriers to dispersal (Cooke et al. 2005,
p. 325), so it is important to consider that some of the same stressors
acting on southern elktoe at individual and watershed levels are also
acting on the host fishes. Generally, sucker fishes are large-bodied
fishes that move significant distances, particularly to reach spawning
locations. As a result, sucker fish species can disperse mussels
farther than smaller-bodied and less mobile fishes. However, we are
uncertain to the extent to which barriers may limit host fish movement
or affect dispersal and colonization capabilities of southern elktoe.
Nonnative Species
The invasive Asian clam (Corbicula fluminea) was first detected in
the eastern Gulf drainages in the early 1960s and was widespread within
the ACF Basin by the mid-1970s (Heard 1975, p. 3). Asian clam life
history enables fast colonization; it is hermaphroditic and can self-
fertilize, grows fast, reaches maturity in 3 to 6 months, and produces
large numbers of juveniles (Strayer 1999, p. 81; Haag 2012, p. 368).
These traits allow the species to quickly reach densities of hundreds
to thousands per square meter (Gardner et al. 1976, pp. 119-121), and
to thrive in disturbed habitats (Haag 2012, p. 370).
Although the Asian clam can inhabit a wide range of flow and
substrate conditions, densities are highest in areas with low flow
velocity and in substrates composed of sand or mixtures of mud, sand,
and gravel. Southern elktoe generally exhibits similar habitat
preferences as the Asian clam; therefore, Asian clams may reach high
abundances in areas inhabited by southern elktoe (Gardner et al. 1976,
p. 122; McDowell and Byers 2019, p. 6). Additionally, Asian clams have
one of the highest filtration rates per biomass, compared to native
mussels and fingernail clams (sphaeriids) (McMahon and Bogan 2001, pp.
331-429), thereby potentially competing for food resources. Asian clams
may also negatively affect mussels by ingesting mussel sperm,
glochidia, or newly metamorphosed juvenile mussels (Strayer 1999, pp.
81-85; Modesto et al. 2019, pp. 159-162). Although the specific
interaction between Asian clams and native mussels is not well
understood, there is sufficient evidence to conclude that Asian clams
can negatively affect native mussel populations (Haag 2012, p. 370).
Current Condition
There are six populations of southern elktoe, and each generally
corresponds with river sub-basins where southern elktoe occur: Middle
Chattahoochee, Upper Flint, Lower Flint, Ichawaynochaway, Apalachicola,
and Chipola. The Middle Chattahoochee and Lower Flint sub-basins (HUC8
watersheds) were slightly modified for population-level analyses of
current and future condition by extending the boundaries to align with
major system barriers (dams) that are relevant to the species because
they form barriers for host fishes. While no significant barriers to
the southern elktoe's host fishes occur between the Lower Flint and
Ichawaynochaway sub-basins, or between the Apalachicola and Chipola
sub-basins, factors that influence southern elktoe populations vary
among those sub-basins, making it most appropriate to analyze each
separately when considering current and future condition. Below, we
describe occurrence records for each of the six southern elktoe
populations.
Middle Chattahoochee
Historical collection records in the Middle Chattahoochee portion
of the southern elktoe's range are from the mainstem Chattahoochee
River near Columbus, Georgia; the Mulberry Creek system (Mulberry and
Ossahatchie Creeks), Georgia; and the Uchee Creek System (Uchee and
Little Uchee Creeks), Alabama. The species is known from 12 localities
(sites); however, there has been only one collection record since 2000
in this sub-basin.
Upper Flint River
The historical southern elktoe distribution in the Upper Flint
River includes the Flint River from Lake Blackshear upstream to
Spalding County, Georgia, and the following tributaries: Patsiliga,
Potato, White Oak, Line, and Whitewater Creeks. Southern elktoe has
been documented at a total of 20 locations in this sub-basin; however,
since 2000, southern elktoe has been observed at only one of these
locations (Patsiliga Creek).
Ichawaynochaway Creek
Southern elktoe was not known from the Ichawaynochaway sub-basin
prior to 2000, so there are no historical records for this population.
In 2019, one live southern elktoe was found near the confluence of
Chickasawhatchee Creek and Ichawaynochaway Creek in Baker County,
Georgia. This site is part of Elmodel Wildlife Management Area and is
managed by the State of Georgia.
Lower Flint River
The species is known from six localities in the Lower Flint River,
four of which have observations since 2000. The species is historically
known from Hutchinson Ferry (1953, 1954) and U.S. Highway 27 in
Bainbridge (1954, 1956); however, Woodruff Dam was completed in 1954,
and these sites on the lower Flint River are now in the upper reaches
of Seminole Reservoir (Lake Seminole), all in the state of Georgia. In
2011, the southern elktoe was observed at four locations in the Flint
River about 10.5
[[Page 40168]]
km (6.5 mi) north-northeast of Bainbridge. Presently, this reach is
considered to harbor the most individuals known from its current
rangewide distribution. Collection records from 2011-2017 noted at
least 34 individuals of various sizes, some under 30 millimeters (mm)
(1.2 inches (in)) in length, indicating the presence of multiple age
classes and successful recruitment (Wisniewski et al. 2014, p. 37).
Apalachicola River
Prior to 2000, the southern elktoe was documented in the
Apalachicola River near Chattahoochee, Florida. Currently, southern
elktoe is considered rare in the Apalachicola River; one shell was
collected in 2006, and one live individual each in 2010, 2012, and
2015. The lack of collections in Apalachicola River may be due in part
to limited river access points and deeper habitats.
Chipola River
The southern elktoe appears to be relatively more abundant in the
Chipola River in Florida; a total 18 live individuals and one shell
were observed at 10 locations during 2013-2018. A recent quantitative
study examining freshwater mussel distribution in the Apalachicola and
lower Chipola Rivers collected six southern elktoe from the lower
Chipola (Kaeser et al. 2019, p. 662).
Resiliency, Redundancy, and Representation
To assess resilience of southern elktoe, we developed population-
level metrics associated with aspects of population dynamics that
characterize freshwater mussel populations that are used in existing
recovery criteria for other ACF Basin listed mussel species, including
persistence within watersheds over both long- and short-term time
frames, evidence of stable or increasing trends, and evidence of
reproduction/recruitment. Presumed average lifespan of an individual
elktoe is approximately 10 years; therefore, we interpret multiple
collections through time in the same watershed as persistence, which
implies conditions are appropriate for recruitment, growth, and
survival. Also given this presumed lifespan of southern elktoe, we are
confident that the species is still present in a watershed if it has
been collected since 2010. Detection of small juvenile (less than 25
mm) mussels is challenging and biased by visual sampling methods. Given
mussels of this size are hard to detect, we considered observation of
southern elktoe less than 50 mm as evidence of recruitment in the
previous 1 to 3 years. We also evaluated trends in land use/land cover
as surrogates for associated stressors from both urban and agricultural
development. We then combined the demographic and habitat indices into
an overall resilience index to reflect the presence and severity of
habitat stressors associated with those land use types within a
watershed that would likely negatively influence the viability of
southern elktoe populations.
Table 1--Overall Resilience Summary. See SSA Report for Details About Methodology and Calculations
[Service 2022, pp. 50-65]
----------------------------------------------------------------------------------------------------------------
Middle chat Upper flint Ichaway Lower flint Apalach Chipola
----------------------------------------------------------------------------------------------------------------
Demographic....................... 0.09 0.05 0.36 0.27 0.23 0.43
Habitat........................... 0.1 0.2 0.29 0.42 0.08 0.23
Overall........................... 0.09 (0) 0 0.26 0.07 (0) 0.23 0.33
----------------------------------------------------------------------------------------------------------------
During the defined current time period (since 2000), the overall
resilience indices (sum of all metrics) indicate that the Middle
Chattahoochee, Upper Flint River, and Lower Flint River populations
have extremely low resiliency and may be at risk of extirpation (Table
1). In the Middle Chattahoochee and Upper Flint Rivers, only isolated
individuals have been documented since 2000, and both populations had
limited evidence of recruitment. In the Lower Flint, individuals have
been collected in recent years, with evidence of recent recruitment.
However, elktoe persistence in this area over a longer time period is
not yet evident, and land use stressors are highest in this area;
therefore, there is extremely low current resilience for this
population. Resilience of the other three populations (Ichawaynochaway
Creek, Chipola River, and Apalachicola River) is categorized as poor.
Very few elktoes were recently observed in these populations: 4 in
Ichawaynochaway, 3 in Apalachicola, and 18 in Chipola. Although natural
rarity of southern elktoe does not mean the species is in danger of
extinction, small population size could lead to an increased chance of
extirpation due to a random event. Ultimately, the overall resilience
indices for all populations reflect land use patterns and stressors
affecting those areas. These stressors have not been abated and
continue to act on the species currently.
Based on best available data that we reviewed and synthesized in
the SSA report, the southern elktoe's current condition is
characterized by very low individual numbers within a restricted range,
and associated reductions in redundancy and representation from the
known historical distribution of the species. Southern elktoe was
documented as extant in each population during the defined current time
frame of 2000-2019. However, there is little redundancy as none of the
six populations is categorized above poor resilience; thus, the species
is extremely susceptible to catastrophic events. To assess the current
representation of southern elktoe, we used three metrics to estimate
and predict representative units that reflect the subspecies' adaptive
capacity: (1) river basin, (2) longitudinal gradient in the watershed
(ecoregions, hydrogeology, and water source/aquifers), and (3) habitat
variability (size, categories range from creek to great rivers). While
the species is still extant in all four river basins, there has been a
loss of representation along the longitudinal gradient, and the three
populations with poor resilience are all limited to large tributaries
(Ichawaynochaway Creek) and rivers (Chipola, Apalachicola), thus the
species has extremely limited representation across its range.
Future Conditions
To investigate future conditions, we predicted the southern
elktoe's response to plausible future scenarios reflecting different
environmental conditions and conservation efforts. The future scenarios
project threats into the future and then consider the impacts the
threats could have on the viability of the species. Based on our review
of factors currently affecting viability of southern elktoe, we focused
our evaluation of
[[Page 40169]]
future condition on habitat degradation and loss associated with two
prevalent land uses in the ACF Basin, agricultural and urban
development, and their associated stressors to water quality and
quantity. We interpreted projections for increases in agriculture and
urban development through 2050 as surrogates for the stressors that
would accompany increased water use for irrigation or municipal
sources, increased surface runoff, and increases in contaminants
specific to each sector (e.g., nutrients and pesticides for
agriculture, pollutants from urban land use). We used 2050 as our
future time horizon because it is within the time frame for which
climate and land use model projections exist and it encompasses at
least three generations of southern elktoe, which provides confidence
in predicting the species' response to threats.
We evaluated three future scenarios by modifying demographic
variables according to feasible future trajectories to cover a range of
possibilities from stable/increasing populations to loss of populations
with the lowest number of individuals documented during our current
time frame. We used land use/land cover models to forecast urban and
agricultural land uses within each sub-basin, and again we combined the
demographic and habitat indices into ``overall resilience'' for each
population. We assessed redundancy and representation in the same
manner as we did for current condition. Because we determined that the
current condition of southern elktoe is consistent with an endangered
species (see Determination of Southern Elktoe's Status, below), we are
not presenting the results of the future scenarios in this proposed
rule. Please refer to the SSA report (Service 2022, pp.103-113) for the
full analysis of future conditions and descriptions of the associated
scenarios.
We note that, by using the SSA framework to guide our analysis of
the scientific information documented in the SSA report, we have not
only analyzed individual effects on the species, but we have also
analyzed their potential cumulative effects. We incorporate the
cumulative effects into our SSA analysis when we characterize the
current and future condition of the species. To assess the current and
future condition of the species, we undertake an iterative analysis
that encompasses and incorporates the threats individually and then
accumulates and evaluates the effects of all the factors that may be
influencing the species, including threats and conservation efforts.
Because the SSA framework considers not just the presence of the
factors, but to what degree they collectively influence risk to the
entire species, our assessment integrates the cumulative effects of the
factors and replaces a standalone cumulative effects analysis.
Conservation Efforts
Multiple water resource planning and policy actions in Georgia and
Florida have been enacted to increase water quality and/or decrease
water consumption. The State of Georgia's regional water plans are
developed in accordance with the Georgia Comprehensive State-wide Water
Management Plan (State Water Plan), which was adopted by the General
Assembly in January 2008. The State Water Plan requires the preparation
of regional water development and conservation plans (regional water
plans) to manage water resources in a sustainable manner through 2050,
thus protecting instream habitat for the southern elktoe. Additionally,
the Metropolitan North Georgia Water Planning District has implemented
and expanded numerous conservation measures outlined in the 2017 Water
Management Plan. The State has also enacted a number of laws related to
water conservation, including the Water Stewardship Act of 2010, which
has decreased per capita water use in the District by 30 percent since
2000 (Metropolitan North Georgia Water Planning District 2017, pp. 5-
44).
In 1977, Georgia amended the Georgia Water Control Act of 1964 to
regulate wastewater discharges and required permits for municipal and
industrial users in excess of 100,000 gallons per day, but it did not
limit the volume of withdrawals. Not until 1988, when the Georgia Water
Quality Control Act (1964) and the Groundwater Use Act (1972) were
amended, did farm withdrawals of surface and groundwater in excess of
100,000 gallons per day require a permit. These State laws prevent
degradation of water quality, which is important to support southern
elktoe.
Georgia passed the Flint River Drought Protection Act (FRDPA) in
2000 with the goal of reducing surface water withdrawals during dry
periods, keeping more water in the ACF Basin, and mitigating tri-state
water resource friction. The FRDPA allowed the Georgia Environmental
Protection Division (GEPD) director to declare a drought in the Flint
River basin and enabled the State to pay farmers not to irrigate. The
process was used in 2001 and 2002; however, the GEPD concluded that the
cropland users with the highest water usage continued to irrigate. This
State law allows more water to remain in rivers during dry periods,
thus reducing the potential stress to southern elktoe during droughts.
The Florida Water Resources Act establishes all water in Florida as
a public resource that is managed by the Florida Department of
Environmental Protection and five water management districts. Each
district creates a regional water supply plan every 5 years. Florida
establishes minimum flow limits (MFLs) to identify the limit at which
withdrawals would be significantly harmful to the water resources or
ecology of an area, particularly those areas where southern elktoe
exist. Also, the Florida Legislature enacted the Surface Water
Improvement and Management (SWIM) Act in 1987 by to improve and manage
the water quality and natural systems of Florida's surface waters,
which include lakes, rivers, streams, estuaries, springs, and wetlands.
These laws that are intended to maintain flow and quality of the waters
also support the southern elktoe.
The presence of other listed mussels within the ACF Basin resulted
in designation of their critical habitat in 2007 (see 72 FR 64286;
November 15, 2007). As a result, Federal agencies have been required
under the Act's section 7 to coordinate with the Service to ensure
actions they carry out, fund, or authorize will not jeopardize species'
persistence or adversely modify critical habitat. This requirement has
indirectly offered some protection to southern elktoe throughout most
of its historical range; however, it is important to note that the most
recent known locations of southern elktoe collections during the
current time period in the Upper Flint population are not in any
species' designated critical habitat and do not benefit from this
collateral protection. Additionally, lands in conservation ownership in
the ACF Basin include the Apalachicola National Forest in the
Apalachicola, several spring habitats in the Chipola River Basin, and
Elmodel Wildlife Management Area in the Ichawaynochaway. These
conservation lands provide protection from development and other
stressors to the southern elktoe.
Determination of Southern Elktoe's Status
Section 4 of the Act (16 U.S.C. 1533) and its implementing
regulations (50 CFR part 424) set forth the procedures for determining
whether a species meets the definition of an endangered species or a
threatened species. The Act defines an ``endangered species'' as a
species in danger of extinction throughout all or a
[[Page 40170]]
significant portion of its range, and a ``threatened species'' as a
species likely to become an endangered species within the foreseeable
future throughout all or a significant portion of its range. The Act
requires that we determine whether a species meets the definition of an
endangered species or a threatened species because of any of the
following factors: (A) The present or threatened destruction,
modification, or curtailment of its habitat or range; (B)
overutilization for commercial, recreational, scientific, or
educational purposes; (C) disease or predation; (D) the inadequacy of
existing regulatory mechanisms; or (E) other natural or manmade factors
affecting its continued existence.
Status Throughout All of Its Range
After evaluating threats to the species and assessing the
cumulative effect of the threats under the Act's section 4(a)(1)
factors, we find that past and ongoing habitat degradation and loss,
including impaired water quality, decreased water quantity, and
barriers to host fish movement, have reduced habitat suitability
(Factor A) for the southern elktoe to such a degree that there is
little resiliency of the species throughout its range. Once known from
a variety of small stream to large river habitats, which supported the
ability to adapt to changing riverine conditions (representation),
currently the southern elktoe is restricted to larger rivers and
mainstem habitats within the ACF Basin. This reduction in range
represents significantly reduced representation and redundancy from
historical conditions. Stressors to the southern elktoe's habitat from
agricultural and urban land uses are present in all the southern
populations except the Apalachicola River. The Middle Chattahoochee,
Upper Flint River, and Lower Flint River populations have little
resiliency and may be at risk of extirpation. Resilience of the other
three populations--Ichawaynochaway Creek, Chipola River, and
Apalachicola River--is currently categorized as poor (i.e., has an
index between 0.2-0.39, see Table 1 above and Table 4.4. in SSA report
(Service 2022, p. 57).
While we anticipate that the threats will continue to act on the
species in the future, they are affecting the species such that it is
in danger of extinction now, and, therefore, we find that a threatened
species status is not appropriate. We find that the southern elktoe's
vulnerability to ongoing stressors is heightened to such a degree that
it is currently in danger of extinction as a result of its reduced
range and critically low numbers. Thus, after assessing the best
available information, we determine that southern elktoe is in danger
of extinction throughout all of its range.
Status Throughout a Significant Portion of Its Range
Under the Act and our implementing regulations, a species may
warrant listing if it is in danger of extinction or likely to become so
in the foreseeable future throughout all or a significant portion of
its range. We have determined that the southern elktoe is in danger of
extinction throughout all of its range and accordingly did not
undertake an analysis of any significant portion of its range. Because
the southern elktoe warrants listing as endangered throughout all of
its range, our determination does not conflict with the decision in
Center for Biological Diversity v. Everson, 435 F. Supp. 3d 69 (D.D.C.
2020) (Everson), which vacated the provision of the Final Policy on
Interpretation of the Phrase ``Significant Portion of Its Range'' in
the Endangered Species Act's Definitions of ``Endangered Species'' and
``Threatened Species'' (79 FR 37578; July 1, 2014) providing that if
the Service determines that a species is threatened throughout all of
its range, the Service will not analyze whether the species is
endangered in a significant portion of its range.
Determination of Status
Our review of the best available scientific and commercial
information indicates that the southern elktoe meets the Act's
definition of an endangered species. Therefore, we propose to list the
southern elktoe as an endangered species in accordance with sections
3(6) and 4(a)(1) of the Act.
Available Conservation Measures
Conservation measures provided to species listed as endangered or
threatened species under the Act include recognition as a listed
species, planning and implementation of recovery actions, requirements
for Federal protection, and prohibitions against certain practices.
Recognition through listing results in public awareness, and
conservation by Federal, State, Tribal, and local agencies, private
organizations, and individuals. The Act encourages cooperation with the
States and other countries and calls for recovery actions to be carried
out for listed species. The protection required by Federal agencies,
including the Service, and the prohibitions against certain activities
are discussed, in part, below.
The primary purpose of the Act is the conservation of endangered
and threatened species and the ecosystems upon which they depend. The
ultimate goal of such conservation efforts is the recovery of these
listed species, so that they no longer need the protective measures of
the Act. Section 4(f) of the Act calls for the Service to develop and
implement recovery plans for the conservation of endangered and
threatened species. The goal of this process is to restore listed
species to a point where they are secure, self-sustaining, and
functioning components of their ecosystems.
The recovery planning process begins with development of a recovery
outline made available to the public soon after a final listing
determination. The recovery outline guides the immediate implementation
of urgent recovery actions while a recovery plan is being developed.
Recovery teams (composed of species experts, Federal and State
agencies, nongovernmental organizations, and stakeholders) may be
established to develop and implement recovery plans. The recovery
planning process involves the identification of actions that are
necessary to halt and reverse the species' decline by addressing the
threats to its survival and recovery. The recovery plan identifies
recovery criteria for review of when a species may be ready for
reclassification from endangered to threatened (``downlisting'') or
removal from protected status (``delisting''), and methods for
monitoring recovery progress. Recovery plans also establish a framework
for agencies to coordinate their recovery efforts and provide estimates
of the cost of implementing recovery tasks. Revisions of the plan may
be done to address continuing or new threats to the species, as new
substantive information becomes available. The recovery outline, draft
recovery plan, final recovery plan, and any revisions will be available
on our website as they are completed (https://www.fws.gov/program/endangered-species), or from our Florida Ecological Services Field
Office (see FOR FURTHER INFORMATION CONTACT).
Implementation of recovery actions generally requires the
participation of a broad range of partners, including other Federal
agencies, States, Tribes, nongovernmental organizations, businesses,
and private landowners. Examples of recovery actions include habitat
restoration (e.g., restoration of native vegetation), research, captive
propagation and reintroduction, and outreach and education. The
recovery of many listed species cannot be accomplished solely on
Federal lands
[[Page 40171]]
because their range may occur primarily or solely on non-Federal lands.
To achieve recovery of these species requires cooperative conservation
efforts on private, State, and Tribal lands.
If this species is listed, funding for recovery actions will be
available from a variety of sources, including Federal budgets, State
programs, and cost-share grants for non-Federal landowners, the
academic community, and nongovernmental organizations. In addition,
pursuant to section 6 of the Act, the States of Alabama, Georgia, and
Florida would be eligible for Federal funds to implement management
actions that promote the protection or recovery of the southern elktoe.
Information on our grant programs that are available to aid species
recovery can be found at: https://www.fws.gov/service/financial-assistance.
Although the southern elktoe is only proposed for listing under the
Act at this time, please let us know if you are interested in
participating in recovery efforts for this species. Additionally, we
invite you to submit any new information on this species whenever it
becomes available and any information you may have for recovery
planning purposes (see FOR FURTHER INFORMATION CONTACT).
Section 7(a) of the Act requires Federal agencies to evaluate their
actions with respect to any species that is proposed or listed as an
endangered or threatened species and with respect to its critical
habitat, if any is designated. Regulations implementing this
interagency cooperation provision of the Act are codified at 50 CFR
part 402. Section 7(a)(4) of the Act requires Federal agencies to
confer with the Service on any action that is likely to jeopardize the
continued existence of a species proposed for listing or result in
destruction or adverse modification of proposed critical habitat. If a
species is listed subsequently, section 7(a)(2) of the Act requires
Federal agencies to ensure that activities they authorize, fund, or
carry out are not likely to jeopardize the continued existence of the
species or destroy or adversely modify its critical habitat. If a
Federal action may affect a listed species or its critical habitat, the
responsible Federal agency must enter into consultation with the
Service.
Examples of actions that may be subject to the section 7 processes
are land management or other landscape-altering activities on Federal
lands administered by the Service, U.S. Forest Service, and National
Park Service, as well as actions on State, Tribal, local, or private
lands that require a Federal permit (such as a permit from the U.S.
Army Corps of Engineers under section 404 of the Clean Water Act (33
U.S.C. 1251 et seq.) or a permit from the Service under section 10 of
the Act) or that involve some other Federal action (such as funding
from the Federal Highway Administration, Federal Aviation
Administration, or the Federal Emergency Management Agency). Federal
actions not affecting listed species or critical habitat--and actions
on State, Tribal, local, or private lands that are not federally
funded, authorized, or carried out by a Federal agency--do not require
section 7 consultation. Examples of Federal agency actions that may
require consultation for the southern elktoe could include: channel
dredging and maintenance, dam projects including flood control,
navigation, hydropower, bridge projects, stream restoration, and Clean
Water Act permitting; flow management and water storage (systemwide),
slough restoration project on Apalachicola River, expansion of
limestone mine on Chipola River; technical and financial assistance for
projects and the U.S. Forest Service (aquatic habitat restoration, fire
management plans, fire suppression, fuel reduction treatments, forest
plans, mining permits); renewable and alternative energy projects;
issuance of section 10 permits for enhancement of survival, habitat
conservation plans, and safe harbor agreements; National Wildlife
Refuge planning and refuge activities; Partners for Fish and Wildlife
program projects benefiting these species or other listed species,
Wildlife and Sportfish Restoration program sportfish stocking;
development of water quality criteria and permitting; and future river
crossings/bridge replacement and maintenance. Given the difference in
triggers for conferencing and consultation, Federal agencies should
coordinate with the local Service Field Office (see FOR FURTHER
INFORMATION CONTACT) with any specific questions.
The Act and its implementing regulations set forth a series of
general prohibitions and exceptions that apply to endangered wildlife.
The prohibitions of section 9(a)(1) of the Act, codified at 50 CFR
17.21, make it illegal for any person subject to the jurisdiction of
the United States to take (which includes harass, harm, pursue, hunt,
shoot, wound, kill, trap, capture, or collect; or to attempt any of
these) endangered wildlife within the United States or on the high
seas. In addition, it is unlawful to import; export; deliver, receive,
carry, transport, or ship in interstate or foreign commerce in the
course of commercial activity; or sell or offer for sale in interstate
or foreign commerce any species listed as an endangered species. It is
also illegal to possess, sell, deliver, carry, transport, or ship any
such wildlife that has been taken illegally. Certain exceptions apply
to employees of the Service, the National Marine Fisheries Service,
other Federal land management agencies, and State conservation
agencies.
We may issue permits to carry out otherwise prohibited activities
involving endangered wildlife under certain circumstances. Regulations
governing permits are codified at 50 CFR 17.22. With regard to
endangered wildlife, a permit may be issued for the following purposes:
for scientific purposes, to enhance the propagation or survival of the
species, and for incidental take in connection with otherwise lawful
activities. The statute also contains certain exemptions from the
prohibitions, which are found in sections 9 and 10 of the Act.
It is our policy, as published in the Federal Register on July 1,
1994 (59 FR 34272), to identify to the maximum extent practicable at
the time a species is listed those activities that would or would not
constitute a violation of section 9 of the Act. The intent of this
policy is to increase public awareness of the effect of a proposed
listing on proposed and ongoing activities within the range of the
species proposed for listing. At this time, we are unable to identify
specific activities that would not be considered to result in a
violation of section 9 of the Act because the southern elktoe occurs in
several riverine habitats across its range and it is likely that site-
specific conservation measures may be needed for activities that may
directly or indirectly affect the species.
Based on the best available information, the following activities
may potentially result in a violation of section 9 of the Act if they
are not authorized in accordance with applicable law; this list is not
comprehensive:
(1) Introduction of nonnative species that compete with or prey
upon the southern elktoe;
(2) Release of biological control agents that affect any life stage
of this species;
(3) Modification of the channel or water flow of any stream in
which the southern elktoe is known to occur; and
(4) Discharge of chemicals or fill material into any waters in
which the southern elktoe is known to occur.
[[Page 40172]]
II. 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 (that is,
range). Such areas may include those areas used throughout all or part
of the species' life cycle, even if not used on a regular basis (e.g.,
migratory corridors, seasonal habitats, and habitats used periodically,
but not solely by vagrant individuals).
Conservation, as defined under section 3 of the Act, means to use
and the use of all methods and procedures that are necessary to bring
an endangered or threatened species to the point at which the measures
provided pursuant to the Act are no longer necessary. Such methods and
procedures include, but are not limited to, all activities associated
with scientific resources management such as research, census, law
enforcement, habitat acquisition and maintenance, propagation, live
trapping, and transplantation, and, in the extraordinary case where
population pressures within a given ecosystem cannot be otherwise
relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the requirement that Federal agencies ensure, in consultation
with the Service, that any action they authorize, fund, or carry out is
not likely to result in the destruction or adverse modification of
critical habitat. The designation of critical habitat does not affect
land ownership or establish a refuge, wilderness, reserve, preserve, or
other conservation area. Such designation also does not allow the
government or public to access private lands. Such designation does not
require implementation of restoration, recovery, or enhancement
measures by non-Federal landowners. Where a landowner requests Federal
agency funding or authorization for an action that may affect a listed
species or critical habitat, the Federal agency would be required to
consult with the Service under section 7(a)(2) of the Act. However,
even if the Service were to conclude that the proposed activity would
likely result in destruction or adverse modification of the critical
habitat, the Federal action agency and the landowner are not required
to abandon the proposed activity, or to restore or recover the species;
instead, they must implement ``reasonable and prudent alternatives'' to
avoid destruction or adverse modification of critical habitat.
Under the first prong of the Act's definition of critical habitat,
areas within the geographical area occupied by the species at the time
it was listed are included in a critical habitat designation if they
contain physical or biological features (1) which are essential to the
conservation of the species and (2) which may require special
management considerations or protection. For these areas, critical
habitat designations identify, to the extent known using the best
scientific and commercial data available, those physical or biological
features that are essential to the conservation of the species (such as
space, food, cover, and protected habitat).
Under the second prong of the Act's definition of critical habitat,
we can designate critical habitat in areas outside the geographical
area occupied by the species at the time it is listed, upon a
determination that such areas are essential for the conservation of the
species.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific data available. Further, our Policy on
Information Standards Under the Endangered Species Act (published in
the Federal Register on July 1, 1994 (59 FR 34271)), the Information
Quality Act (section 515 of the Treasury and General Government
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)),
and our associated Information Quality Guidelines provide criteria,
establish procedures, and provide guidance to ensure that our decisions
are based on the best scientific data available. They require our
biologists, to the extent consistent with the Act and with the use of
the best scientific data available, to use primary and original sources
of information as the basis for recommendations to designate critical
habitat.
When we are determining which areas should be designated as
critical habitat, our primary source of information is generally the
information from the SSA report and information developed during the
listing process for the species. Additional information sources may
include any generalized conservation strategy, criteria, or outline
that may have been developed for the species; the recovery plan for the
species; articles in peer-reviewed journals; conservation plans
developed by States and counties; scientific status surveys and
studies; biological assessments; other unpublished materials; or
experts' opinions or personal knowledge.
Habitat is dynamic, and species may move from one area to another
over time. We recognize that critical habitat designated at a
particular point in time may not include all of the habitat areas that
we may later determine are necessary for the recovery of the species.
For these reasons, a critical habitat designation does not signal that
habitat outside the designated area is unimportant or may not be needed
for recovery of the species. Areas that are important to the
conservation of the species, both inside and outside the critical
habitat designation, will continue to be subject to: (1) Conservation
actions implemented under section 7(a)(1) of the Act; (2) regulatory
protections afforded by the requirement in section 7(a)(2) of the Act
for Federal agencies to ensure their actions are not likely to
jeopardize the continued existence of any endangered or threatened
species; and (3) the prohibitions found in section 9 of the Act.
Federally funded or permitted projects affecting listed species outside
their designated critical habitat areas may still result in jeopardy
findings in some cases. These protections and conservation tools will
continue to contribute to recovery of the species. Similarly, critical
habitat designations made on the basis of the best available
information at the time of designation will not control the direction
and substance of future recovery plans, habitat conservation plans
(HCPs), or other species conservation planning efforts if new
information available at the time of those planning efforts calls for a
different outcome.
Physical or Biological Features Essential to the Conservation of the
Species
In accordance with section 3(5)(A)(i) of the Act and regulations at
50 CFR 424.12(b), in determining which areas we will designate as
critical habitat from within the geographical area occupied
[[Page 40173]]
by the species at the time of listing, we consider the physical or
biological features that are essential to the conservation of the
species and which may require special management considerations or
protection. The regulations at 50 CFR 424.02 define ``physical or
biological features essential to the conservation of the species'' as
the features that occur in specific areas and that are essential to
support the life-history needs of the species, including, but not
limited to, water characteristics, soil type, geological features,
sites, prey, vegetation, symbiotic species, or other features. A
feature may be a single habitat characteristic or a more complex
combination of habitat characteristics. Features may include habitat
characteristics that support ephemeral or dynamic habitat conditions.
Features may also be expressed in terms relating to principles of
conservation biology, such as patch size, distribution distances, and
connectivity. For example, physical features essential to the
conservation of the species might include gravel of a particular size
required for spawning, alkaline soil for seed germination, protective
cover for migration, or susceptibility to flooding or fire that
maintains necessary early-successional habitat characteristics.
Biological features might include prey species, forage grasses,
specific kinds or ages of trees for roosting or nesting, symbiotic
fungi, or absence of a particular level of nonnative species consistent
with conservation needs of the listed species. The features may also be
combinations of habitat characteristics and may encompass the
relationship between characteristics or the necessary amount of a
characteristic essential to support the life history of the species.
In considering whether features are essential to the conservation
of the species, we may consider an appropriate quality, quantity, and
spatial and temporal arrangement of habitat characteristics in the
context of the life-history needs, condition, and status of the
species. These characteristics include, but are not limited to, space
for individual and population growth and for normal behavior; food,
water, air, light, minerals, or other nutritional or physiological
requirements; cover or shelter; sites for breeding, reproduction, or
rearing (or development) of offspring; and habitats that are protected
from disturbance.
Summary of Essential Physical or Biological Features
As described above under Summary of Biological Status and Threats,
the southern elktoe is a freshwater mussel that occurs in river and
streams. Occasional or regular interaction among individuals in
different reaches not interrupted by a barrier likely occurs, but in
general, interaction is strongly influenced by habitat fragmentation
and distance between occupied river or stream reaches. Once released
from their fish host, freshwater mussels are benthic, generally
sedentary aquatic organisms and closely associated with appropriate
habitat patches within a river or stream.
We derive the specific physical or biological features essential to
the conservation of the southern elktoe from studies of these species'
(or appropriate surrogate species') habitat, ecology, and life history.
The primary habitat elements that influence resiliency of the southern
elktoe include water quality, water quantity, substrate, habitat
connectivity, and the presence of host fish species to ensure
recruitment. Adequate flows ensure delivery of oxygen, enable
reproduction, deliver food to filter-feeding mussels, and reduce
contaminants and fine sediments from interstitial spaces. Stream
velocity is not static over time, and variations may be attributed to
seasonal changes (with higher flows in winter/spring and lower flows in
summer/fall), extreme weather events (e.g., drought or floods), or
anthropogenic influence (e.g., flow regulation via impoundments).These
features are also described above as resource needs under Summary of
Biological Status and Threats, and a full description is available in
the SSA report; the individuals' needs are summarized below in Table 2.
Table 2--Southern Elktoe's Resource Needs
------------------------------------------------------------------------
Resources needed to complete
Life stage life stage \1\
------------------------------------------------------------------------
All.................................... Flowing water.
Moderate water
temperature (in general
<=32[deg]C).
Adequate dissolved
oxygen (in general >=5.0 mg/
L).
Good water quality
with low concentrations of
toxicants (chlorine, un-
ionized ammonia, heavy metals,
salts, pesticides).
Fertilized eggs........................ Normal suspended solid
(brooding Oct-Feb)..................... levels.
Appropriate spawning
temperatures.
Mature males upstream
from mature females.
Suitable flows for
fertilization to occur.
Glochidia.............................. Presence of catostomid
Winter................................. host fish.
Suitable flows to
permit host-glochidia
interactions.
Juveniles.............................. Areas with low shear
Excystment from host fish to ~25 mm.... stress during high flows.
Appropriate substrates
(stable sand/gravel free from
excessive silt).
Suitable interstitial
water quality, including
moderate temperature and
adequate dissolved oxygen, and
absence of toxicants.
Adequate food
availability (bacteria, algae,
diatoms, detritus) in
sediment.
Suitable temperatures
to maximize growth (predation
risk declines as size
increases).
Limited predators to
juveniles (e.g., flatworms).
Adults................................. Areas with low shear
Greater than ~25 mm.................... stress during high flows.
Appropriate substrates
(stable sand/gravel free from
excessive silt).
Adequate food
availability (bacteria, algae,
diatoms, detritus) in water
column.
------------------------------------------------------------------------
\1\ These resource needs are common among North American freshwater
mussels; however, due to lack of species-specific research, parameters
specific to the southern elktoe are unavailable.
[[Page 40174]]
Additional information can be found in chapter 2 of the SSA report
(Service 2022, pp. 11-15), which is available on https://www.regulations.gov under Docket No. FWS-R4-ES-2022-0179. We have
determined that the following physical or biological features are
essential to the conservation of southern elktoe:
(1) Adequate flows, or a hydrologic flow regime (magnitude, timing,
frequency, duration, rate of change, and overall seasonality of
discharge over time), necessary to maintain benthic habitats where the
species is found and to maintain stream connectivity, specifically
providing for the exchange of nutrients and sediment for maintenance of
the mussel and fish host's habitat and food availability, maintenance
of spawning habitat for native fishes that could serve as host fish,
and the ability for newly transformed juveniles to settle and become
established in their habitats.
(2) Suitable substrates and connected instream habitats,
characterized by geomorphically stable stream channels and banks (i.e.,
channels that maintain lateral dimensions, longitudinal profiles, and
sinuosity patterns over time without an aggrading or degrading bed
elevation) with habitats that support the southern elktoe (e.g.,
slightly depositional habitats consisting of mixtures of silty mud,
sand, and gravel).
(3) Water and sediment quality necessary to sustain natural
physiological processes for normal behavior, growth, and viability of
all life stages. Water and sediment quality needs include appropriate
thermal and dissolved oxygen regimes (temperature generally not above
90 degrees Fahrenheit ([deg]F) (32 degrees Celsius ([deg]C)) and
dissolved oxygen generally greater than 5.0 mg/L) that are also low in
ammonia (generally not above 1.5 mg N/L), heavy metals, pharmaceutical
concentrations, salinity (generally not above 4 parts per million),
total suspended solids, and other pollutants.
(4) The presence and abundance of fish hosts necessary for
recruitment of the southern elktoe, specifically species of the sucker
family, Catostomidae, including the genera Moxostoma (Apalachicola
redhorse, greater jumprock, and blacktail redhorse) and Erimyzon (creek
chubsucker and lake chubsucker).
Special Management Considerations or Protection
When designating critical habitat, we assess whether the specific
areas within the geographical area occupied by the species at the time
of listing contain features which are essential to the conservation of
the species and which may require special management considerations or
protection.
The features essential to the conservation of the southern elktoe
may require special management considerations or protections to reduce
the following threats:
(1) Alteration of the natural flow regime (modifying the natural
hydrograph or seasonal flows), including (but not limited to) water
withdrawals that result in flow reduction and available water quantity,
or channelization that changes the natural stream flow pattern;
(2) Changes of the landscape, including (but not limited to) land
conversion for urban and agricultural use, infrastructure (pipelines,
roads, bridges, utilities), and water uses (ground water withdrawal,
water supply reservoirs, wastewater treatment, etc.);
(3) Significant degradation of water quality and nutrient pollution
from a variety of sources, such as stormwater runoff or wastewater from
municipal facilities;
(4) Impacts from invasive species;
(5) Incompatible land use activities that remove large areas of
forested wetlands or riparian areas or watershed/floodplain
disturbances that release sediments, pollutants, or nutrients into the
water;
(6) Installation or maintenance of dams, culverts, or pipes that
create a barrier to movement for the southern elktoe, or its host
fishes; and
(7) Changes and shifts in seasonal precipitation patterns as a
result of climate change.
Management activities that could ameliorate these threats include,
but are not limited to: use of best management practices designed to
reduce sedimentation, erosion, and bank destruction; protection of
riparian corridors and native woody vegetation; moderation of surface
and ground water withdrawals to maintain natural flow regimes; improved
stormwater management; and avoidance or minimization of other watershed
and floodplain disturbances that release sediments, pollutants, or
nutrients into the water.
Criteria Used To Identify Critical Habitat
As required by section 4(b)(2) of the Act, we use the best
scientific data available to designate critical habitat. In accordance
with the Act and our implementing regulations at 50 CFR 424.12(b), we
review available information pertaining to the habitat requirements of
the species and identify specific areas within the geographical area
occupied by the species at the time of listing and any specific areas
outside the geographical area occupied by the species to be considered
for designation as critical habitat. We are proposing to designate
critical habitat in areas within the geographical area occupied by the
species at the time of listing. The proposed critical habitat
designation includes the occupied rivers and streams within the current
range that we determined contain the physical and biological features
that are essential to the conservation of these species. These rivers
and streams contain known populations and have retained the physical or
biological features that could allow for the maintenance and expansion
of existing populations.
We also are proposing to designate specific areas outside the
geographical area occupied by the species because we have determined
that a designation limited to occupied areas would be inadequate to
ensure the conservation of the species. There are current records of
southern elktoe in the Upper Flint River Complex and the Middle
Chattahoochee system; however, the currently occupied reaches are
significantly reduced compared to historical distribution. Designating
only occupied areas in these two systems (which equates to one small
stream reach in each system and thus provides little redundancy for the
species) is not sufficient for the conservation of the species;
therefore, unoccupied reaches that had historical observations of the
species are included in the designation. The addition of these
unoccupied reaches will provide areas that support the southern
elktoe's life processes; thus, these unoccupied reaches are considered
habitat that contains all of the physical and biological features that
are essential to the conservation of the southern elktoe. Further,
these unoccupied areas are reasonably certain to contribute to the
conservation of the species, as they currently support other freshwater
mussel species and provide habitat for fish hosts that are essential
for the conservation of the southern elktoe.
Sources of data for this proposed critical habitat include
information from State agencies and survey reports throughout the
species' range (Service 2022, entire). We have also reviewed available
information that pertains to the habitat requirements of the species.
Sources of information on habitat requirements include information for
the six co-occurring listed mussels and other closely related species,
published peer-reviewed articles, agency reports, and data collected
during monitoring efforts.
[[Page 40175]]
In summary, for all areas within the geographic area occupied or
unoccupied by the species at the time of listing that we are proposing
as critical habitat, we delineated critical habitat unit boundaries
using the following criteria: the upstream boundary of a unit is the
first perennial tributary confluence or first permanent barrier to fish
passage (such as a dam) upstream of the upstream-most occurrence record
(either current or historical). The downstream boundary of a unit is
the mouth of the stream, the upstream extent of tidal influence, or the
upstream extent of an impoundment, whichever comes first, downstream of
the farthest downstream occurrence record. The lateral extent of each
unit includes the bankfull width of the stream. We consider portions of
the following rivers and streams to be appropriate for critical habitat
designation: Apalachicola River, Chipola River, Lower Flint River
Complex, Upper Flint River Complex, and Middle Chattahoochee (see
Proposed Critical Habitat Designation, below).
When determining proposed critical habitat boundaries, we made
every effort to avoid including developed areas such as lands covered
by buildings, pavement, and other structures because such lands lack
physical or biological features necessary for the southern elktoe. The
scale of the maps we prepared under the parameters for publication
within the Code of Federal Regulations may not reflect the exclusion of
such developed lands. Any such lands inadvertently left inside critical
habitat boundaries shown on the maps of this proposed rule have been
excluded by text in the proposed rule and are not proposed for
designation as critical habitat. Therefore, if the critical habitat is
finalized as proposed, a Federal action involving these lands would not
trigger section 7 consultation with respect to critical habitat and the
requirement of no adverse modification unless the specific action would
affect the physical or biological features in the adjacent critical
habitat.
We propose to designate as critical habitat lands that we have
determined are occupied at the time of listing (i.e., currently
occupied) and that contain one or more of the physical or biological
features that are essential to support life-history processes of the
species. We have determined that occupied areas are inadequate to
ensure the conservation of the species. Therefore, we have also
identified, and propose for designation as critical habitat, unoccupied
areas that are essential for the conservation of the species. Five
units are proposed for designation based on one or more of the physical
or biological features being present to support the southern elktoe's
life-history processes.
The proposed critical habitat designation is defined by the map or
maps, as modified by any accompanying regulatory text, presented at the
end of this document under Proposed Regulation Promulgation. We include
more detailed information on the boundaries of the critical habitat
designation in the preamble of this document. We will make the
coordinates or plot points or both on which each map is based available
to the public on https://www.regulations.gov at Docket No. FWS-R4-ES-
2022-0179.
Proposed Critical Habitat Designation
We are proposing to designate approximately 578 river mi (929 river
km) in five units as critical habitat for the southern elktoe. The
critical habitat areas we describe below constitute our current best
assessment of areas that meet the definition of critical habitat for
the species. Critical habitat includes only stream channels up to
bankfull height, where the stream base flow is contained within the
channel. The five units we propose as critical habitat are: (1)
Apalachicola River, (2) Chipola River, (3) Lower Flint River Complex,
(4) Upper Flint River Complex, and (5) Middle Chattahoochee. Table 3
shows the proposed critical habitat units and the approximate area of
each unit.
TABLE 3--Proposed Critical Habitat Units for Southern Elktoe
[Area estimates reflect all land within critical habitat unit boundaries]
----------------------------------------------------------------------------------------------------------------
Length of unit in river
Critical habitat unit Land ownership by type kilometers (miles) Occupied?
----------------------------------------------------------------------------------------------------------------
1. Apalachicola River................ Public and Private...... 142.8 (88.7)............ Yes.
2. Chipola River..................... Public and Private...... 131.3 (81.6)............ Yes.
3. Lower Flint River Complex......... Public and Private...... 165.9 (103.1)........... Yes.
4. Upper Flint River Complex......... ........................ Total: 396.6 (246.4).... .....................
4a: Patsiliga Creek.................. Private................. 36.2 (22.5)............. Yes.
4b: Upper Flint Tributaries.......... Public and Private...... 360.4 (223.9)........... No.
5. Middle Chattahoochee.............. ........................ Total 92.9 (57.7)....... .....................
5a: Uchee Creek...................... Private................. 36.7 (22.8)............. Yes.
5b: Little Uchee Creek............... Private................. 20.3 (12.6)............. No.
5c: Mulberry Creek................... Public and Private...... 35.9 (22.3)............. No.
Total............................ ........................ 929.5 (577.6)........... .....................
----------------------------------------------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.
We present brief descriptions of all units, and reasons why they
meet the definition of critical habitat for southern elktoe, below.
Unit 1: Apalachicola River
Unit 1 consists of 142.8 river km (88.7 mi) of the Apalachicola
River in Calhoun, Franklin, Gadsden, Gulf, Jackson, and Liberty
Counties, Florida; this unit is currently occupied and contains all the
physical and biological features essential to the conservation of the
species. The main stem of the Apalachicola River in Unit 1 extends from
near Prospect Bluff Historic Sites in Apalachicola National Forest at
river mile 20 (U.S. Army Corps of Engineers Navigable Waterway Mile
Markers) in Franklin County, Florida, upstream to the Jim Woodruff Lock
and Dam in Gadsden and Jackson Counties, Florida (the river is the
county boundary), including stream habitat up to bankfull height.
Riparian lands that border the unit include approximately 36.5
river km (22.7 mi) in public conservation and 41.9 river km (26 mi) in
combined public conservation and private ownership. The Nature
Conservancy's Apalachicola Bluffs and Ravines Preserve (included in
private ownership) protects rare steephead and other habitats along the
Apalachicola
[[Page 40176]]
River. General land use on adjacent riparian lands and the surrounding
HUC 8-level management unit includes forested or rural lands with more
limited threats than other units. Special management considerations
that may be required to maintain the physical and biological features
include, but are not limited to: use of best management practices
designed to reduce sedimentation, erosion, and bank destruction and
protection of riparian corridors and native woody vegetation.
Unit 2: Chipola River
Unit 2 consists of 131.3 river km (81.6 mi) of the Chipola River
(including the reach known as Dead Lake) in Calhoun, Gulf, and Jackson
Counties, Florida; this unit is currently occupied and contains all the
physical and biological features essential to the conservation of the
species. The main stem of the Chipola River in Unit 2 extends from its
confluence with the Apalachicola River in Gulf County, Florida,
upstream 131.3 km (81.6 mi) to approximately where the river flows
underground in Florida Caverns State Park in Jackson County, Florida,
including stream habitat up to bankfull height.
Riparian lands that border the unit include approximately 16.6
river km (10.3 mi) in public conservation and 19.3 river km (12 mi) in
combined public conservation and private ownership. Water quality and
quantity stressors from expansion of agricultural land use is a
possible future threat in this unit. Special management considerations
that may be required to maintain the physical and biological features
include, but are not limited to: use of best management practices
designed to reduce sedimentation, erosion, and bank destruction;
protection of riparian corridors and native woody vegetation;
moderation of surface and ground water withdrawals to maintain natural
flow regimes; and avoidance or minimization of other watershed and
floodplain disturbances that release sediments, pollutants, or
nutrients into the water.
Unit 3: Lower Flint River Complex
Unit 3 consists of 165.9 river km (103.1 mi) of the mainstem of the
Flint River between Lake Seminole (impounded by the Jim Woodruff Lock
and Dam) and the Flint River Dam (which impounds Lake Worth), and the
mainstems of two tributaries in Baker, Decatur, Dougherty, and Mitchell
Counties, Georgia; this unit is currently occupied and contains all the
physical and biological features essential to the conservation of the
species. The mainstem of the Flint River in Unit 3 extends from 1.3
river km (0.82 mi) downstream of U.S. Highway 84 in Decatur County,
Georgia (the approximate upstream extent of Lake Seminole), upstream
122.7 river km (76.3 mi) to the Flint River Dam in Dougherty County,
Georgia. Unit 3 includes 26.1 river km (16.2 mi) of the mainstem of
Ichawaynochaway Creek from its confluence with the Flint River upstream
to its confluence with Chickasawhatchee Creek, and 15.7 river km (9.7
mi) of the mainstem of Chickasawhatchee Creek from its confluence with
Ichawaynochaway Creek upstream to its confluence with Spring Creek in
Baker County, Georgia, including stream habitat up to bankfull height.
Riparian lands that border the unit include approximately 17.3
river km (10.8 mi) in public conservation and 28.5 river km (17.7 mi)
in combined public conservation and private ownership. Water quality
and quantity stressors from expansion of agricultural land use is a
future threat in this unit. Special management considerations that may
be required to maintain the physical and biological features include,
but are not limited to: use of best management practices designed to
reduce sedimentation, erosion, and bank destruction; protection of
riparian corridors and native woody vegetation; moderation of surface
and ground water withdrawals to maintain natural flow regimes; and
avoidance or minimization of other watershed and floodplain
disturbances that release sediments, pollutants, or nutrients into the
water.
Unit 4: Upper Flint River Complex
Unit 4 is comprised of two subunits; both subunits include stream
habitat up to bankfull height.
Subunit 4a includes 36.2 river km (22.5 mi) of Patsiliga Creek in
Taylor County, Georgia. This subunit is currently occupied by the
species and contains all the physical and biological features essential
to the conservation of the species.
Subunit 4b includes 360.4 river km (223.9 mi) of the mainstem Flint
River and four of its tributaries upstream of Lake Blackshear in
Coweta, Crawford, Dooly, Fayette, Macon, Meriwether, Peach, Pike,
Spalding, Sumter, Talbot, Taylor, and Upson Counties, Georgia. This
subunit is considered currently unoccupied by the species and contains
all the physical and biological features essential to the conservation
of the species. These unoccupied areas are essential to restore
historical redundancy for the species in the Upper Flint system and
provide connectivity to subunit 4a, thus enabling the southern elktoe
to sustain this population over time. We are reasonably certain that
the unit will contribute to the conservation of the species because it
currently sustains other freshwater mussels and the fish hosts that are
essential to southern elktoe viability. These unoccupied reaches are
considered habitat that contains all of the physical and biological
features that are essential to the conservation of the southern elktoe.
Riparian lands that border Unit 4 include approximately 12.7 river
km (7.9 mi) in public conservation and 64.7 river km (40.2) in combined
public conservation and private ownership. Water quality and quantity
stressors from urban land use is a primary threat in this unit. Special
management considerations that may be required to maintain the physical
and biological features include, but are not limited to: use of best
management practices designed to reduce sedimentation, erosion, and
bank destruction; protection of riparian corridors and native woody
vegetation; moderation of surface and ground water withdrawals to
maintain natural flow regimes; improved stormwater management; and
avoidance or minimization of other watershed and floodplain
disturbances that release sediments, pollutants, or nutrients into the
water.
Unit 5: Middle Chattahoochee
Unit 5 is comprised of three subunits:
Subunit 5a includes 36.7 river km (22.8 mi) of the mainstem of
Uchee Creek from its confluence with the Chattahoochee River upstream
to the confluence with Island Creek in Russell County, Alabama. This
subunit is currently occupied by the species and contains all of the
physical and biological features essential to the conservation of the
species. Because Fort Benning, which is located within this unit, has
an integrated natural resources management plan (INRMP) that provides
for conservation of the southern elktoe, we have not included 4 miles
of Uchee Creek in this proposed designation (see Application of Section
4(a)(3) of the Act, below).
Subunit 5b includes 20.3 river km (12.6 mi) of Little Uchee Creek
in Russell County, Alabama. This subunit is considered unoccupied,
although it is contiguous with the occupied habitat in Uchee Creek and
contains all the physical and biological features essential to the
conservation of the species.
Subunit 5c includes 35.9 river km (22.3 mi) of Mulberry Creek in
Harris County, Georgia. This subunit is considered currently unoccupied
and
[[Page 40177]]
contains all the physical and biological features essential to the
conservation of the species.
Subunits 5b and 5c, the two unoccupied subunits in Unit 5, are
essential to restore historical redundancy for the species in the
Middle Chattahoochee system, thus enabling the southern elktoe to
sustain itself in this system over time. We are reasonably certain that
the unit will contribute to the conservation of the species because it
currently sustains other freshwater mussels and the fish hosts that are
essential to southern elktoe viability. These unoccupied reaches are
considered habitat that contains all of the physical and biological
features that are essential to the conservation of the southern elktoe.
Riparian lands that border the unit include approximately 0.5 river km
(0.3 mi) in combined public conservation and private ownership; the
remainder is private. Water quality and quantity stressors from
expansion of agricultural land use is a future threat in this unit.
Special management considerations that may be required to maintain the
physical and biological features include, but are not limited to: use
of best management practices designed to reduce sedimentation, erosion,
and bank destruction; protection of riparian corridors and native woody
vegetation; moderation of surface and ground water withdrawals to
maintain natural flow regimes; improved stormwater management; and
avoidance or minimization of other watershed and floodplain
disturbances that release sediments, pollutants, or nutrients into the
water.
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that any action they fund, authorize, or carry out
is not likely to jeopardize the continued existence of any endangered
species or threatened species or result in the destruction or adverse
modification of designated critical habitat of such species. In
addition, section 7(a)(4) of the Act requires Federal agencies to
confer with the Service on any agency action which is likely to
jeopardize the continued existence of any species proposed to be listed
under the Act or result in the destruction or adverse modification of
proposed critical habitat.
We published a final rule revising the definition of destruction or
adverse modification on August 27, 2019 (84 FR 44976). Destruction or
adverse modification means a direct or indirect alteration that
appreciably diminishes the value of critical habitat as a whole for the
conservation of a listed species.
If a Federal action may affect a listed species or its critical
habitat, the responsible Federal agency (action agency) must enter into
consultation with us. Examples of actions that are subject to the
section 7 consultation process are actions on State, Tribal, local, or
private lands that require a Federal permit (such as a permit from the
U.S. Army Corps of Engineers under section 404 of the Clean Water Act
or a permit from the Service under section 10 of the Act) or that
involve some other Federal action (such as funding from the Federal
Highway Administration, Federal Aviation Administration, or the Federal
Emergency Management Agency). Federal actions not affecting listed
species or critical habitat--and actions on State, Tribal, local, or
private lands that are not federally funded, authorized, or carried out
by a Federal agency--do not require section 7 consultation.
Compliance with the requirements of section 7(a)(2) is documented
through our issuance of:
(1) A concurrence letter for Federal actions that may affect, but
are not likely to adversely affect, listed species or critical habitat;
or
(2) A biological opinion for Federal actions that may affect, and
are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is
likely to jeopardize the continued existence of a listed species and/or
destroy or adversely modify critical habitat, we provide reasonable and
prudent alternatives to the project, if any are identifiable, that
would avoid the likelihood of jeopardy and/or destruction or adverse
modification of critical habitat. We define ``reasonable and prudent
alternatives'' (at 50 CFR 402.02) as alternative actions identified
during consultation that:
(1) Can be implemented in a manner consistent with the intended
purpose of the action,
(2) Can be implemented consistent with the scope of the Federal
agency's legal authority and jurisdiction,
(3) Are economically and technologically feasible, and
(4) Would, in the Service Director's opinion, avoid the likelihood
of jeopardizing the continued existence of the listed species and/or
avoid the likelihood of destroying or adversely modifying critical
habitat.
Reasonable and prudent alternatives can vary from slight project
modifications to extensive redesign or relocation of the project. Costs
associated with implementing a reasonable and prudent alternative are
similarly variable.
Regulations at 50 CFR 402.16 set forth requirements for Federal
agencies to reinitiate consultation on previously reviewed actions.
These requirements apply when the Federal agency has retained
discretionary involvement or control over the action (or the agency's
discretionary involvement or control is authorized by law) and,
subsequent to the previous consultation: (a) if the amount or extent of
taking specified in the incidental take statement is exceeded; (b) if
new information reveals effects of the action that may affect listed
species or critical habitat in a manner or to an extent not previously
considered; (c) if the identified action is subsequently modified in a
manner that causes an effect to the listed species or critical habitat
that was not considered in the biological opinion or written
concurrence; or (d) if a new species is listed or critical habitat
designated that may be affected by the identified action.
In such situations, Federal agencies sometimes may need to request
reinitiation of consultation with us, but Congress also enacted some
exceptions in 2018 to the requirement to reinitiate consultation on
certain land management plans on the basis of a new species listing or
new designation of critical habitat that may be affected by the subject
Federal action. See 2018 Consolidated Appropriations Act, Public Law
115-141, Div, O, 132 Stat. 1059 (2018).
Application of the ``Destruction or Adverse Modification'' Standard
The key factor related to the destruction or adverse modification
determination is whether implementation of the proposed Federal action
directly or indirectly alters the designated critical habitat in a way
that appreciably diminishes the value of the critical habitat as a
whole for the conservation of the listed species. As discussed above,
the role of critical habitat is to support physical or biological
features essential to the conservation of a listed species and provide
for the conservation of the species.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe, in any proposed or final regulation that designates critical
habitat, activities involving a Federal action that may violate section
7(a)(2) of the Act by destroying or adversely modifying such habitat,
or that may be affected by such designation.
[[Page 40178]]
Activities that the Services may, during a consultation under
section 7(a)(2) of the Act, consider likely to destroy or adversely
modify critical habitat include, but are not limited to:
(1) Actions that would degrade or alter water quality. Such
activities could include, but are not limited to, polluted wastewater
discharge or spills from industrial, municipal, and mining facilities;
or polluted stormwater runoff or infiltration from agricultural lands
and urban areas. These activities could eliminate or reduce the habitat
necessary for the growth and reproduction of the southern elktoe and
its fish hosts.
(2) Actions that would alter flow regimes. Such activities could
include, but are not limited to, groundwater pumping and surface water
withdrawal or diversion, dam construction and operation, and land
clearing. These activities could eliminate or reduce the habitat
necessary for the growth and reproduction of the southern elktoe and
its fish hosts.
(3) Actions that would destroy or alter southern elktoe habitats.
Such activities could include, but are not limited to, installation or
maintenance of in-stream structures (such as dams, culverts, bridges,
boat ramps, retaining walls, and pipelines), dredging, impounding,
channelization, or modification of stream channels or banks, and
discharge of fill material. These activities could eliminate or reduce
the habitat necessary for the growth and reproduction of the southern
elktoe and its fish hosts.
(4) Actions that would cause silt and sediment to wash into stream
channels. Such activities could include, but are not limited to, road
and bridge construction, agricultural and mining activities, and
commercial and residential development. These activities could
eliminate or reduce the habitat necessary for the growth and
reproduction of the southern elktoe and its fish hosts.
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)) provides that the Secretary shall not
designate as critical habitat any lands or other geographical areas
owned or controlled by the Department of Defense, or designated for its
use, that are subject to an INRMP prepared under section 101 of the
Sikes Act (16 U.S.C. 670a), if the Secretary determines in writing that
such plan provides a benefit to the species for which critical habitat
is proposed for designation.
We consult with the military on the development and implementation
of INRMPs for installations with listed species. We analyzed INRMPs
developed by military installations located within the range of the
proposed critical habitat designation for the southern elktoe to
determine if they meet the criteria for exemption from critical habitat
under section 4(a)(3) of the Act. The following areas are Department of
Defense (DoD) lands with completed, Service-approved INRMPs within the
proposed critical habitat designation.
Approved INRMPs
U.S. Army Fort Benning, Georgia; 4 Stream Miles (6.4 km)
We have identified one area within the proposed critical habitat
designation that consists of DoD lands with a completed, Service-
approved INRMP. The Army Maneuver Center of Excellence Fort Benning
(Fort Benning) is located in Georgia and Alabama on 182,000 acres in
three counties: Muscogee and Chattahoochee Counties, Georgia, and
Russell County, Alabama. Fort Benning is federally owned land that is
managed by the U.S. Army and is subject to all Federal laws and
regulations. The Fort Benning INRMP covers fiscal years 2021-2026, and
it serves as the principal management plan governing all natural
resource activities on the installation. Among the goals and objectives
listed in the INRMP is habitat management for rare, threatened, and
endangered species, and the southern elktoe is included in this plan.
Management actions that benefit the southern elktoe include maintenance
or improvement of habitat quality in a portion of Uchee Creek by
mitigating (avoiding) adverse impacts of any action within the
watershed that could have effects on the quality of habitat in Uchee
Creek.
Four stream miles (6.4 km) of Unit 5 (Middle Chattahoochee) are
located within the area covered by this INRMP. Based on the above
considerations, and in accordance with section 4(a)(3)(B)(i) of the
Act, we have determined that the identified lands and streams are
subject to the Fort Benning INRMP and that conservation efforts
identified in the INRMP will provide a benefit to southern elktoe.
Therefore, the streams within this installation are exempt from
critical habitat designation under section 4(a)(3) of the Act. We are
not including approximately 4 stream miles (6.4 km) of habitat in this
proposed critical habitat designation because of this exemption.
Consideration of Impacts Under Section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that the Secretary shall
designate and make revisions to critical habitat on the basis of the
best available scientific data after taking into consideration the
economic impact, national security impact, and any other relevant
impact of specifying any particular area as critical habitat. The
Secretary may exclude an area from critical habitat based on economic
impacts, impacts on national security, or any other relevant impacts.
Exclusion decisions are governed by the regulations at 50 CFR 424.19
and the Policy Regarding Implementation of Section 4(b)(2) of the
Endangered Species Act (hereafter, the ``2016 Policy''; 81 FR 7226,
February 11, 2016), both of which were developed jointly with the
National Marine Fisheries Service (NMFS). We also refer to a 2008
Department of the Interior Solicitor's opinion entitled ``The
Secretary's Authority to Exclude Areas from a Critical Habitat
Designation under Section 4(b)(2) of the Endangered Species Act'' (M-
37016).
[[Page 40179]]
In considering whether to exclude a particular area from the
designation, we identify the benefits of including the area in the
designation, identify the benefits of excluding the area from the
designation, and evaluate whether the benefits of exclusion outweigh
the benefits of inclusion. If the analysis indicates that the benefits
of exclusion outweigh the benefits of inclusion, the Secretary may
exercise discretion to exclude the area only if such exclusion would
not result in the extinction of the species. In making the
determination to exclude a particular area, the statute on its face, as
well as the legislative history, are clear that the Secretary has broad
discretion regarding which factor(s) to use and how much weight to give
to any factor. In our final rules, we explain any decision to exclude
areas, as well as decisions not to exclude, to demonstrate that the
decision is reasonable. We describe below the process that we use for
taking into consideration each category of impacts and any initial
analyses of the relevant impacts.
Consideration of Economic Impacts
Section 4(b)(2) of the Act and its implementing regulations require
that we consider the economic impact that may result from a designation
of critical habitat. To assess the probable economic impacts of a
designation, we must first evaluate specific land uses or activities
and projects that may occur in the area of the critical habitat. We
then must evaluate the impacts that a specific critical habitat
designation may have on restricting or modifying specific land uses or
activities for the benefit of the species and its habitat within the
areas proposed. We then identify which conservation efforts may be the
result of the species being listed under the Act versus those
attributed solely to the designation of critical habitat for this
particular species. The probable economic impact of a proposed critical
habitat designation is analyzed by comparing scenarios both ``with
critical habitat'' and ``without critical habitat.''
The ``without critical habitat'' scenario represents the baseline
for the analysis, which includes the existing regulatory and socio-
economic burden imposed on landowners, managers, or other resource
users potentially affected by the designation of critical habitat
(e.g., under the Federal listing as well as other Federal, State, and
local regulations). Therefore, the baseline represents the costs of all
efforts attributable to the listing of the species under the Act (i.e.,
conservation of the species and its habitat incurred regardless of
whether critical habitat is designated). The ``with critical habitat''
scenario describes the incremental impacts associated specifically with
the designation of critical habitat for the species. The incremental
conservation efforts and associated impacts would not be expected
without the designation of critical habitat for the species. In other
words, the incremental costs are those attributable solely to the
designation of critical habitat, above and beyond the baseline costs.
These are the costs we use when evaluating the benefits of inclusion
and exclusion of particular areas from the final designation of
critical habitat should we choose to conduct a discretionary 4(b)(2)
exclusion analysis.
Executive Orders (E.O.s) 12866 and 13563 direct Federal agencies to
assess the costs and benefits of available regulatory alternatives in
quantitative (to the extent feasible) and qualitative terms. Consistent
with the E.O. regulatory analysis requirements, our effects analysis
under the Act may take into consideration impacts to both directly and
indirectly affected entities, where practicable and reasonable. If
sufficient data are available, we assess to the extent practicable the
probable impacts to both directly and indirectly affected entities.
Section 3(f) of E.O. 12866 identifies four criteria when a regulation
is considered a ``significant'' rulemaking, and requires additional
analysis, review, and approval if met. The criterion relevant here is
whether the designation of critical habitat may have an economic effect
of greater than $100 million in any given year (section 3(f)(1)).
Therefore, our consideration of economic impacts uses a screening
analysis to assess whether a designation of critical habitat for the
southern elktoe is likely to exceed the economically significant
threshold.
For this particular designation, we developed an incremental
effects memorandum (IEM) considering the probable incremental economic
impacts that may result from this proposed designation of critical
habitat. The information contained in our IEM was then used to develop
a screening analysis of the probable effects of the designation of
critical habitat for the southern elktoe (IEc 2021, entire). We began
by conducting a screening analysis of the proposed designation of
critical habitat in order to focus our analysis on the key factors that
are likely to result in incremental economic impacts. The purpose of
the screening analysis is to filter out particular geographic areas of
critical habitat that are already subject to such protections and are,
therefore, unlikely to incur incremental economic impacts. In
particular, the screening analysis considers baseline costs (i.e.,
absent critical habitat designation) and includes probable economic
impacts where land and water use may already be subject to conservation
plans, land management plans, best management practices, or regulations
that protect the habitat area as a result of the Federal listing status
of the species. Ultimately, the screening analysis allows us to focus
our analysis on evaluating the specific areas or sectors that may incur
probable incremental economic impacts as a result of the designation.
The presence of the listed species in occupied areas of critical
habitat means that any destruction or adverse modification of those
areas is also likely to jeopardize the continued existence of the
species. Therefore, designating occupied areas as critical habitat
typically causes little if any incremental impacts above and beyond the
impacts of listing the species. Therefore, the screening analysis
focuses on areas of unoccupied critical habitat. If there are any
unoccupied units in the proposed critical habitat designation, the
screening analysis assesses whether any additional management or
conservation efforts may incur incremental economic impacts. This
screening analysis combined with the information contained in our IEM
are what we consider to be our draft economic analysis (DEA) of the
proposed critical habitat designation for the southern elktoe; our DEA
is summarized in the narrative below.
As part of our screening analysis, we considered the types of
economic activities that are likely to occur within the areas likely
affected by the critical habitat designation. In our evaluation of the
probable incremental economic impacts that may result from the proposed
designation of critical habitat for the southern elktoe, first we
identified, in the IEM dated July 29, 2021, probable incremental
economic impacts associated with the following categories of
activities: (1) channel dredging and maintenance; dam projects
including flood control, navigation, hydropower, bridge projects,
stream restoration, and Clean Water Act permitting; flow management and
water storage (systemwide); slough restoration project on Apalachicola
River, and an expansion of a limestone mine on Chipola River; (2)
technical and financial assistance for projects, including aquatic
habitat restoration, fire management plans, fire suppression, fuel
reduction treatments, forest plans, and mining permits; (3) renewable
and alternative energy projects; (4) issuance of section 10 permits for
enhancement
[[Page 40180]]
of survival, habitat conservation plans, and safe harbor agreements;
(5) Federal lands management; (6) water quality permitting; (7) roadway
and bridge construction; (8) natural disaster management; and (9)
recreation (including sport fishing and sportfish stocking).
We considered each industry or category individually. Additionally,
we considered whether their activities have any Federal involvement.
Critical habitat designation generally will not affect activities that
do not have any Federal involvement; under the Act, designation of
critical habitat only affects activities conducted, funded, permitted,
or authorized by Federal agencies. If we list the species, in areas
where the southern elktoe is present, Federal agencies would be
required to consult with the Service under section 7 of the Act on
activities they fund, permit, or implement that may affect the species.
If, when we list the species, we also finalize this proposed critical
habitat designation, Federal agencies would be required to consider the
effects of their actions on the designated habitat, and if the Federal
action may affect critical habitat, our consultations would include an
evaluation of measures to avoid the destruction or adverse modification
of critical habitat.
In our IEM, we attempted to clarify the distinction between the
effects that would result from the species being listed and those
attributable to the critical habitat designation (i.e., difference
between the jeopardy and adverse modification standards) for the
southern elktoe's critical habitat. Because the designation of critical
habitat for southern elktoe is being proposed concurrently with the
listing, it has been our experience that it is more difficult to
discern which conservation efforts are attributable to the species
being listed and those which will result solely from the designation of
critical habitat. However, the following specific circumstances in this
case help to inform our evaluation: (1) The essential physical or
biological features identified for critical habitat are the same
features essential for the life requisites of the species, and (2) any
actions that would likely adversely affect the essential physical or
biological features of critical habitat would also likely adversely
affect the species itself. The IEM outlines our rationale concerning
this limited distinction between baseline conservation efforts and
incremental impacts of the designation of critical habitat for this
species. This evaluation of the incremental effects has been used as
the basis to evaluate the probable incremental economic impacts of this
proposed designation of critical habitat.
The proposed critical habitat designation for the southern elktoe
totals approximately 578 river miles (929 km), of which approximately
55 percent is currently occupied by the species. In these occupied
areas, any actions that may affect the species or its habitat would
also affect designated critical habitat, and it is unlikely that any
additional conservation efforts would be recommended to address the
adverse modification standard over and above those recommended as
necessary to avoid jeopardizing the continued existence of the southern
elktoe. Therefore, only administrative costs are expected in
approximately 55 percent of the proposed critical habitat designation.
While this additional analysis will require time and resources by both
the Federal action agency and the Service, it is believed that, in most
circumstances, these costs would predominantly be administrative in
nature and would not be significant.
The remaining approximately 259 mi (416 km) (45 percent of the
total proposed critical habitat designation) are currently unoccupied
by the species but are essential for the conservation of the species.
In these unoccupied areas, any conservation efforts or associated
probable impacts would be considered incremental effects attributed to
the critical habitat designation. Of the 259 mi (416 km) of unoccupied
critical habitat, approximately 74 percent overlaps with existing
designated critical habitat of other listed aquatic species. In these
areas, consultations would likely occur even absent the proposed
critical habitat designation for the southern elktoe.
A number of additional baseline conservation actions exist for the
species, including State water conservation plans and measures, as well
as best management practices for riparian activities for construction,
forestry, and agricultural activities. For example, the States'
Departments of Transportation report consultation road and bridge best
management practices that specifically intend to benefit water quality
in proposed critical habitat areas. Other conservation activities on
public lands include activities on Apalachicola National Forest in
Florida, tracts managed by the Northwest Florida Water Management
District in Florida, and the Elmodel Wildlife Management Area managed
by the State of Georgia. Conservation activity is also being conducted
by nonprofit organizations that would serve to directly or indirectly
benefit southern elktoe critical habitat on some private lands. Based
on the substantial baseline protections afforded to the southern elktoe
that are anticipated to occur in proposed critical habitat areas even
absent the designation of critical habitat for the species, we do not
foresee any incremental costs associated with project modifications
that would involve additional conservation efforts for the species.
When some incremental section 7 consultations costs are anticipated,
costs are likely to be limited to the additional administrative efforts
to consider adverse modification during the consultation process.
The probable incremental economic impacts of the proposed southern
elktoe critical habitat designation are expected to be limited to
additional administrative effort as well as minor costs of conservation
efforts resulting from a small number of future section 7
consultations. This is due to two factors: (1) A significant portion of
proposed critical habitat stream reaches are considered to be occupied
by the species (55 percent), and incremental economic impacts of
critical habitat designation, other than administrative costs, are
unlikely; and (2) in proposed areas that are not occupied by southern
elktoe, approximately 74 percent of the areas are already designated as
critical habitat for other listed aquatic species, so many of the
conservation efforts undertaken for those other listed aquatic species
would also provide substantial protections to critical habitat areas
for the southern elktoe even absent critical habitat designation. In
the remaining 26 percent of the areas, there are predicted to be fewer
than one formal and two informal consultations per year. The associated
costs are estimated to be $10,000 or less per consultation.
Accordingly, in order to reach the threshold of $100 million of
incremental administrative impacts in a single year, critical habitat
designation would have to result in more than 11,000 consultations in a
single year. However, based on consultation history areas across the
entirety of the proposed designation, we only anticipate one formal
consultation and six informal consultations per year. Thus, the annual
administrative burden is very unlikely to reach $100 million.
We are soliciting data and comments from the public on the DEA
discussed above, as well as on all aspects of this proposed rule and
our required determinations. During the development of a final
designation, we will consider the information presented in the DEA and
any additional information on economic impacts we receive during the
public comment period to determine whether any specific areas should be
[[Page 40181]]
excluded from the final critical habitat designation under authority of
section 4(b)(2) of the Act, our implementing regulations at 50 CFR
424.19, and the 2016 Policy. We may exclude an area from critical
habitat if we determine that the benefits of excluding the area
outweigh the benefits of including the area, provided the exclusion
will not result in the extinction of this species.
Consideration of National Security Impacts
Section 4(a)(3)(B)(i) of the Act may not cover all DoD lands or
areas that pose potential national-security concerns (e.g., a DoD
installation that is in the process of revising its INRMP for a newly
listed species or a species previously not covered). If a particular
area is not covered under section 4(a)(3)(B)(i), then national-security
or homeland-security concerns are not a factor in the process of
determining what areas meet the definition of ``critical habitat.''
However, the Service must still consider impacts on national security,
including homeland security, on those lands or areas not covered by
section 4(a)(3)(B)(i), because section 4(b)(2) requires the Service to
consider those impacts whenever it designates critical habitat.
Accordingly, if DoD, Department of Homeland Security (DHS), or another
Federal agency has requested exclusion based on an assertion of
national-security or homeland-security concerns, or we have otherwise
identified national-security or homeland-security impacts from
designating particular areas as critical habitat, we generally have
reason to consider excluding those areas.
However, we cannot automatically exclude requested areas. When DoD,
DHS, or another Federal agency requests exclusion from critical habitat
on the basis of national-security or homeland-security impacts, we must
conduct an exclusion analysis if the Federal requester provides
information, including a reasonably specific justification of an
incremental impact on national security that would result from the
designation of that specific area as critical habitat. That
justification could include demonstration of probable impacts, such as
impacts to ongoing border-security patrols and surveillance activities,
or a delay in training or facility construction, as a result of
compliance with section 7(a)(2) of the Act. If the agency requesting
the exclusion does not provide us with a reasonably specific
justification, we will contact the agency to recommend that it provide
a specific justification or clarification of its concerns relative to
the probable incremental impact that could result from the designation.
If we conduct an exclusion analysis because the agency provides a
reasonably specific justification or because we decide to exercise the
discretion to conduct an exclusion analysis, we will defer to the
expert judgment of DoD, DHS, or another Federal agency as to: (1)
Whether activities on its lands or waters, or its activities on other
lands or waters, have national-security or homeland-security
implications; (2) the importance of those implications; and (3) the
degree to which the cited implications would be adversely affected in
the absence of an exclusion. In that circumstance, in conducting a
discretionary section 4(b)(2) exclusion analysis, we will give great
weight to national-security and homeland-security concerns in analyzing
the benefits of exclusion.
In preparing this proposal, we have determined that the lands
within the proposed designation of critical habitat for southern elktoe
are not owned or managed by the DoD or DHS, and, therefore, we
anticipate no impact on national security or homeland security.
Consideration of Other Relevant Impacts
Under section 4(b)(2) of the Act, we consider any other relevant
impacts, in addition to economic impacts and impacts on national
security discussed above. To identify other relevant impacts that may
affect the exclusion analysis, we consider a number of factors,
including whether there are permitted conservation plans covering the
species in the area--such as HCPs, safe harbor agreements, or candidate
conservation agreements with assurances--or whether there are non-
permitted conservation agreements and partnerships that may be impaired
by designation of, or exclusion from, critical habitat. In addition, we
look at whether Tribal conservation plans or partnerships, Tribal
resources, or government-to-government relationships of the United
States with Tribal entities may be affected by the designation. We also
consider any State, local, social, or other impacts that might occur
because of the designation.
Summary of Exclusions Considered Under 4(b)(2) of the Act
We have not identified any areas to consider for exclusion from
critical habitat based on other relevant impacts. We have determined
that there are currently no HCPs or other management plans for the
southern elktoe, and the proposed designation does not include any
Tribal lands or trust resources or any lands for which designation
would have any economic or national security impacts. Therefore, we
anticipate no impact on Tribal lands, partnerships, or HCPs from this
proposed critical habitat designation and thus, as described above, we
are not considering excluding any particular areas on the basis of the
presence of conservation agreements or impacts to trust resources.
However, if through the public comment period we receive
information that we determine indicates that there are potential
economic, national security, or other relevant impacts from designating
particular areas as critical habitat, then as part of developing the
final designation of critical habitat, we will evaluate that
information and may conduct a discretionary exclusion analysis to
determine whether to exclude those areas under authority of section
4(b)(2) and our implementing regulations at 50 CFR 424.19. If we
receive a request for exclusion of a particular area and after
evaluation of supporting information we do not exclude, we will fully
describe our decision in the final rule for this action.
Required Determinations
Clarity of the Rule
We are required by Executive Orders 12866 and 12988 and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in ADDRESSES. To better help us
revise the rule, your comments should be as specific as possible. For
example, you should tell us the numbers of the sections or paragraphs
that are unclearly written, which sections or sentences are too long,
the sections where you feel lists or tables would be useful, etc.
Regulatory Planning and Review (Executive Orders 12866, 13563, and
14094)
Executive Order 14094 reaffirms the principles of E.O. 12866 and
E.O 13563 and states that regulatory analysis should facilitate agency
efforts to develop regulations that serve the public interest, advance
statutory objectives, and are consistent with E.O.
[[Page 40182]]
12866, E.O. 13563, and the Presidential Memorandum of January 20, 2021
(Modernizing Regulatory Review). Regulatory analysis, as practicable
and appropriate, shall recognize distributive impacts and equity, to
the extent permitted by law. E.O. 13563 emphasizes further that
regulations must be based on the best available science and that the
rulemaking process must allow for public participation and an open
exchange of ideas. We have developed this proposed rule in a manner
consistent with these requirements.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.),
as amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to
publish a notice of rulemaking for any proposed or final rule, it must
prepare and make available for public comment a regulatory flexibility
analysis that describes the effects of the rule on small entities
(i.e., small businesses, small organizations, and small government
jurisdictions). However, no regulatory flexibility analysis is required
if the head of the agency certifies the rule will not have a
significant economic impact on a substantial number of small entities.
The SBREFA amended the RFA to require Federal agencies to provide a
certification statement of the factual basis for certifying that the
rule will not have a significant economic impact on a substantial
number of small entities.
According to the Small Business Administration, small entities
include small organizations such as independent nonprofit
organizations; small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents; and small businesses (13 CFR 121.201). Small businesses
include manufacturing and mining concerns with fewer than 500
employees, wholesale trade entities with fewer than 100 employees,
retail and service businesses with less than $5 million in annual
sales, general and heavy construction businesses with less than $27.5
million in annual business, special trade contractors doing less than
$11.5 million in annual business, and agricultural businesses with
annual sales less than $750,000. To determine whether potential
economic impacts to these small entities are significant, we considered
the types of activities that might trigger regulatory impacts under
this designation as well as types of project modifications that may
result. In general, the term ``significant economic impact'' is meant
to apply to a typical small business firm's business operations.
Under the RFA, as amended, and as understood in light of recent
court decisions, Federal agencies are required to evaluate the
potential incremental impacts of rulemaking on those entities directly
regulated by the rulemaking itself; in other words, the RFA does not
require agencies to evaluate the potential impacts to indirectly
regulated entities. The regulatory mechanism through which critical
habitat protections are realized is section 7 of the Act, which
requires Federal agencies, in consultation with the Service, to ensure
that any action authorized, funded, or carried out by the agency is not
likely to destroy or adversely modify critical habitat. Therefore,
under section 7, only Federal action agencies are directly subject to
the specific regulatory requirement (avoiding destruction and adverse
modification) imposed by critical habitat designation. Consequently, it
is our position that only Federal action agencies would be directly
regulated if we adopt the proposed critical habitat designation. The
RFA does not require evaluation of the potential impacts to entities
not directly regulated. Moreover, Federal agencies are not small
entities. Therefore, because no small entities would be directly
regulated by this rulemaking, the Service certifies that, if made final
as proposed, the proposed critical habitat designation will not have a
significant economic impact on a substantial number of small entities.
In summary, we have considered whether the proposed designation
would result in a significant economic impact on a substantial number
of small entities. For the above reasons and based on currently
available information, we certify that, if made final, the proposed
critical habitat designation would not have a significant economic
impact on a substantial number of small business entities. Therefore,
an initial regulatory flexibility analysis is not required.
Energy Supply, Distribution, or Use--Executive Order 13211
Executive Order 13211 (Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use) requires
agencies to prepare Statements of Energy Effects when undertaking
certain actions. In our economic analysis, we did not find that this
proposed critical habitat designation would significantly affect energy
supplies, distribution, or use. No known hydropower, oil/gas leases,
power lines, or pipelines will be affected within or adjacent to
proposed critical habitat areas. Therefore, this action is not a
significant energy action, and no Statement of Energy Effects is
required.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following finding:
(1) This proposed rule would not produce a Federal mandate. In
general, a Federal mandate is a provision in legislation, statute, or
regulation that would impose an enforceable duty upon State, local, or
Tribal governments, or the private sector, and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or Tribal governments'' with two
exceptions. It excludes ``a condition of Federal assistance.'' It also
excludes ``a duty arising from participation in a voluntary Federal
program,'' unless the regulation ``relates to a then-existing Federal
program under which $500,000,000 or more is provided annually to State,
local, and Tribal governments under entitlement authority,'' if the
provision would ``increase the stringency of conditions of assistance''
or ``place caps upon, or otherwise decrease, the Federal Government's
responsibility to provide funding,'' and the State, local, or Tribal
governments ``lack authority'' to adjust accordingly. At the time of
enactment, these entitlement programs were: Medicaid; Aid to Families
with Dependent Children work programs; Child Nutrition; Food Stamps;
Social Services Block Grants; Vocational Rehabilitation State Grants;
Foster Care, Adoption Assistance, and Independent Living; Family
Support Welfare Services; and Child Support Enforcement. ``Federal
private sector mandate'' includes a regulation that ``would impose an
enforceable duty upon the private sector, except (i) a condition of
Federal assistance or (ii) a duty arising from participation in a
voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal Government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions are not likely to destroy or adversely modify
critical habitat under section 7. While non-Federal entities that
receive Federal
[[Page 40183]]
funding, assistance, or permits, or that otherwise require approval or
authorization from a Federal agency for an action, may be indirectly
impacted by the designation of critical habitat, the legally binding
duty to avoid destruction or adverse modification of critical habitat
rests squarely on the Federal agency. Furthermore, to the extent that
non-Federal entities are indirectly impacted because they receive
Federal assistance or participate in a voluntary Federal aid program,
the Unfunded Mandates Reform Act would not apply, nor would critical
habitat shift the costs of the large entitlement programs listed above
onto State governments.
(2) We do not believe that this proposed rule would significantly
or uniquely affect small governments because those governments will be
affected only to the extent that any programs having Federal funds,
permits, or other authorized activities must ensure their actions will
not adversely affect critical habitat. Therefore, a Small Government
Agency Plan is not required.
Takings--Executive Order 12630
In accordance with E.O. 12630 (Government Actions and Interference
with Constitutionally Protected Private Property Rights), we have
analyzed the potential takings implications of designating critical
habitat for southern elktoe in a takings implications assessment. The
Act does not authorize the Service to regulate private actions on
private lands or confiscate private property as a result of critical
habitat designation. Designation of critical habitat does not affect
land ownership, or establish any closures, or restrictions on use of or
access to the designated areas. Furthermore, the designation of
critical habitat does not affect landowner actions that do not require
Federal funding or permits, nor does it preclude development of habitat
conservation programs or issuance of incidental take permits to permit
actions that do require Federal funding or permits to go forward.
However, Federal agencies are prohibited from carrying out, funding, or
authorizing actions that would destroy or adversely modify critical
habitat. A takings implications assessment has been completed for the
proposed designation of critical habitat for southern elktoe, and it
concludes that, if adopted, this designation of critical habitat does
not pose significant takings implications for lands within or affected
by the designation.
Federalism--Executive Order 13132
In accordance with E.O. 13132 (Federalism), this proposed rule does
not have significant Federalism effects. A federalism summary impact
statement is not required. In keeping with Department of the Interior
and Department of Commerce policy, we requested information from, and
coordinated development of this proposed critical habitat designation
with, appropriate State resource agencies. From a federalism
perspective, the designation of critical habitat directly affects only
the responsibilities of Federal agencies. The Act imposes no other
duties with respect to critical habitat, either for States and local
governments, or for anyone else. As a result, the proposed rule does
not have substantial direct effects either on the States, or on the
relationship between the Federal Government and the States, or on the
distribution of powers and responsibilities among the various levels of
government. The proposed designation may have some benefit to these
governments because the areas that contain the features essential to
the conservation of the species are more clearly defined, and the
physical or biological features of the habitat necessary for the
conservation of the species are specifically identified. This
information does not alter where and what federally sponsored
activities may occur. However, it may assist State and local
governments in long-range planning because they no longer have to wait
for case-by-case section 7 consultations to occur.
Where State and local governments require approval or authorization
from a Federal agency for actions that may affect critical habitat,
consultation under section 7(a)(2) of the Act would be required. While
non-Federal entities that receive Federal funding, assistance, or
permits, or that otherwise require approval or authorization from a
Federal agency for an action, may be indirectly impacted by the
designation of critical habitat, the legally binding duty to avoid
destruction or adverse modification of critical habitat rests squarely
on the Federal agency.
Civil Justice Reform--Executive Order 12988
In accordance with E.O. 12988 (Civil Justice Reform), the Office of
the Solicitor has determined that the proposed rule would not unduly
burden the judicial system and that it meets the requirements of
sections 3(a) and 3(b)(2) of the Order. We have proposed designating
critical habitat in accordance with the provisions of the Act. To
assist the public in understanding the habitat needs of the species,
this proposed rule identifies the physical or biological features
essential to the conservation of the species. The proposed areas of
critical habitat are presented on maps, and the proposed rule provides
several options for the interested public to obtain more detailed
location information, if desired.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This proposed rule does not contain information collection
requirements, and a submission to the Office of Management and Budget
(OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et
seq.) is not required. We may not conduct or sponsor and you are not
required to respond to a collection of information unless it displays a
currently valid OMB control number.
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
Regulations adopted pursuant to section 4(a) of the Act are exempt
from the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et
seq.) and do not require an environmental analysis under NEPA. We
published a notice outlining our reasons for this determination in the
Federal Register on October 25, 1983 (48 FR 49244). This includes
listing, delisting, and reclassification rules, as well as critical
habitat designations. In a line of cases starting with Douglas County
v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), the courts have upheld this
position.
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 federally recognized
Tribes on a government-to-government basis. In accordance with
Secretary's 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
[[Page 40184]]
to make information available to Tribes. We have determined that no
Tribal lands fall within the boundaries of the proposed critical
habitat for the southern elktoe, so no Tribal lands would be affected
by the proposed designation.
References Cited
A complete list of references cited in this rulemaking is available
on the internet at https://www.regulations.gov and upon request from
the Florida Ecological Services Field Office (see FOR FURTHER
INFORMATION CONTACT).
Authors
The primary authors of this proposed rule are the staff members of
the Fish and Wildlife Service's Species Assessment Team and the Florida
Ecological Services Field Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Plants,
Reporting and recordkeeping requirements, Transportation, Wildlife.
Proposed Regulation Promulgation
Accordingly, we propose to amend part 17, subchapter B of chapter
I, title 50 of the Code of Federal Regulations, as set forth below:
PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245,
unless otherwise noted.
0
2. Amend Sec. 17.11, in paragraph (h), by adding an entry for
``Elktoe, Southern'' to the List of Endangered and Threatened Wildlife
in alphabetical order under CLAMS to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
----------------------------------------------------------------------------------------------------------------
Listing citations
Common name Scientific name Where listed Status and applicable rules
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Clams
* * * * * * *
Elktoe, Southern.................. Alasmidonta Wherever found...... E [Federal Register
triangulata. citation when
published as a
final rule]; 50 CFR
17.95(f).\CH\
* * * * * * *
----------------------------------------------------------------------------------------------------------------
0
3. Amend Sec. 17.95, in paragraph (f), by adding an entry for
``Southern Elktoe (Alasmidonta triangulata)'' following the entry for
``Appalachian Elktoe (Alasmidonta raveneliana)'' to read as follows:
Sec. 17.95 Critical habitat--fish and wildlife.
* * * * *
(f) Clams and Snails.
* * * * *
Southern Elktoe (Alasmidonta triangulata)
(1) Critical habitat units are depicted for Russell County,
Alabama; Calhoun, Franklin, Gadsden, Gulf, Jackson, and Liberty
Counties, Florida; and Baker, Coweta, Crawford, Decatur, Dooly,
Dougherty, Fayette, Harris, Macon, Meriwether, Mitchell, Peach, Pike,
Spalding, Sumter, Talbot, Taylor, and Upson Counties, Georgia, on the
maps in this entry.
(2) Within these areas, the physical or biological features
essential to the conservation of southern elktoe consist of the
following components:
(i) Adequate flows, or a hydrologic flow regime (magnitude, timing,
frequency, duration, rate of change, and overall seasonality of
discharge over time), necessary to maintain benthic habitats where the
species is found and to maintain stream connectivity, specifically
providing for the exchange of nutrients and sediment for maintenance of
the mussel and fish host's habitat and food availability, maintenance
of spawning habitat for native fishes that could serve as host fish,
and the ability for newly transformed juveniles to settle and become
established in their habitats.
(ii) Suitable substrates and connected instream habitats,
characterized by geomorphically stable stream channels and banks (i.e.,
channels that maintain lateral dimensions, longitudinal profiles, and
sinuosity patterns over time without an aggrading or degrading bed
elevation) with habitats that support the southern elktoe (e.g.,
slightly depositional habitats consisting of mixtures of silty mud,
sand, and gravel).
(iii) Water and sediment quality necessary to sustain natural
physiological processes for normal behavior, growth, and viability of
all life stages. Water and sediment quality needs include appropriate
thermal and dissolved oxygen regimes (temperature generally not above
90 [deg]F (32 [deg]C) and dissolved oxygen generally greater than 5.0
milligrams per liter (mg/L)) that are also low in ammonia (generally
not above 1.5 mg N/L (milligrams Nitrogen per Liter)), heavy metals,
pharmaceutical concentrations, salinity (generally not above 4 parts
per million), total suspended solids, and other pollutants.
(iv) The presence and abundance of fish hosts necessary for
recruitment of the southern elktoe, specifically species of the sucker
family, Catostomidae, including the genera Moxostoma (Apalachicola
redhorse, greater jumprock, and blacktail redhorse) and Erimyzon (creek
chubsucker and lake chubsucker).
(3) Critical habitat does not include manmade structures (such as
buildings, aqueducts, runways, roads, and other paved areas) and the
land on which they are located existing within the legal boundaries on
[EFFECTIVE DATE OF RULE].
(4) Data layers defining map units were created using ArcMap GIS,
and critical habitat units were then mapped using the National
Hydrography Dataset (NAD) using NAD83 UTM Zone 16N 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 https://www.regulations.gov at Docket No.
FWS-R4-ES-2022-0179.
(5) Index map follows:
BILLING CODE 4333-15-P
[[Page 40185]]
Figure 1 to Southern Elktoe (Alasmidonta triangulata) paragraph (5)
[GRAPHIC] [TIFF OMITTED] TP21JN23.000
(6) Unit 1: Apalachicola River; Calhoun, Franklin, Gadsden, Gulf,
Jackson, and Liberty Counties, Florida.
(i) Unit 1 consists of 142.8 river kilometers (km) (88.7 miles
(mi)) of the Apalachicola River in Calhoun, Franklin, Gadsden, Gulf,
Jackson, and Liberty Counties, Florida. The mainstem of the
Apalachicola River in Unit 1 extends from near Prospect Bluff Historic
Sites in Apalachicola National Forest at river mile 20 (U.S. Army Corps
of Engineers Navigable Waterway Mile Markers) in Franklin County,
Florida, upstream to the Jim Woodruff Lock and Dam in Gadsden and
Jackson Counties, Florida (the river is the county boundary). Unit 1
includes stream habitat up to bankfull height.
(ii) Map of Units 1 and 2 follows:
[[Page 40186]]
Figure 2 to Southern Elktoe (Alasmidonta triangulata) paragraph (6)(ii)
[GRAPHIC] [TIFF OMITTED] TP21JN23.001
(7) Unit 2: Chipola River; Calhoun, Gulf, and Jackson Counties,
Florida.
(i) Unit 2 consists of 131.3 river km (81.6 mi) of the Chipola
River (including the reach known as Dead Lake) in Calhoun, Gulf, and
Jackson Counties, Florida. The mainstem of the Chipola River in Unit 2
extends from its confluence with the Apalachicola River in Gulf County,
Florida, upstream 131.3 km (81.6 mi) to approximately where the river
flows underground in Florida Caverns State Park in Jackson County,
Florida. Unit 2 includes stream habitat up to bankfull height.
(ii) Map of Unit 2 is provided at paragraph (6)(ii) of this entry.
[[Page 40187]]
(8) Unit 3: Lower Flint River Complex; Baker, Decatur, Dougherty,
and Mitchell Counties, Georgia.
(i) Unit 3 consists of 165.9 river km (103.1 mi) of the mainstem of
the Flint River between Lake Seminole (impounded by the Jim Woodruff
Lock and Dam) and the Flint River Dam (which impounds Lake Worth), and
the mainstems of two tributaries in Baker, Decatur, Dougherty, and
Mitchell Counties, Georgia. The mainstem of the Flint River in Unit 3
extends from 1.3 river km (0.82 mi) downstream of U.S. Highway 84 in
Decatur County, Georgia (the approximate upstream extent of Lake
Seminole), upstream 122.7 river km (76.3 mi) to the Flint River Dam in
Dougherty County, Georgia. Unit 3 includes 26.1 river km (16.2 mi) of
the mainstem of Ichawaynochaway Creek from its confluence with the
Flint River upstream to its confluence with Chickasawhatchee Creek, and
15.7 river km (9.7 mi) of the mainstem of Chickasawhatchee Creek from
its confluence with Ichawaynochaway Creek upstream to its confluence
with Spring Creek in Baker County, Georgia. Unit 3 includes stream
habitat up to bankfull height.
(ii) Map of Unit 3 follows:
Figure 3 to Southern Elktoe (Alasmidonta triangulata) paragraph (8)(ii)
[GRAPHIC] [TIFF OMITTED] TP21JN23.002
(9) Unit 4: Upper Flint River Complex; Coweta, Crawford, Dooly,
Fayette, Macon, Meriwether, Peach, Pike, Spalding, Sumter, Talbot,
Taylor, and Upson Counties, Georgia.
(i) Unit 4 is comprised of two subunits:
[[Page 40188]]
(A) Subunit 4a includes 36.2 river km (22.5 mi) of Patsiliga Creek
in Taylor County, Georgia.
(B) Subunit 4b includes 360.4 river km (223.9 mi) of the mainstem
of the Flint River and four of its tributaries upstream of Lake
Blackshear in Coweta, Crawford, Dooly, Fayette, Macon, Meriwether,
Peach, Pike, Spalding, Sumter, Talbot, Taylor, and Upson Counties,
Georgia.
(ii) Map of Unit 4 follows:
Figure 4 to Southern Elktoe (Alasmidonta triangulata) paragraph (9)(ii)
[GRAPHIC] [TIFF OMITTED] TP21JN23.003
(10) Unit 5: Middle Chattahoochee; Russell County, Alabama, and
Harris County, Georgia.
(i) Unit 5 includes stream habitat up to bankfull height and is
comprised of three subunits:
(A) Subunit 5a includes 36.7 river km (22.8 mi) of the mainstem of
Uchee Creek from its confluence with the Chattahoochee River upstream
to the confluence with Island Creek in Russell County, Alabama.
[[Page 40189]]
(B) Subunit 5b includes 20.3 river km (12.6 mi) of Little Uchee
Creek in Russell County, Alabama.
(C) Subunit 5c includes 35.9 river km (22.3 mi) of Mulberry Creek
in Harris County, Georgia.
(ii) Map of Unit 5 follows:
Figure 5 to Southern Elktoe (Alasmidonta triangulata) paragraph
(10)(ii)
[GRAPHIC] [TIFF OMITTED] TP21JN23.004
* * * * *
Wendi Weber,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2023-12315 Filed 6-20-23; 8:45 am]
BILLING CODE 4333-15-C