[Federal Register Volume 88, Number 159 (Friday, August 18, 2023)]
[Rules and Regulations]
[Pages 56471-56489]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-17670]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R4-ES-2022-0070; FF09E21000 FXES1111090FEDR 234]
RIN 1018-BE86
Endangered and Threatened Wildlife and Plants; Endangered Species
Status for Magnificent Ramshorn and Designation of Critical Habitat
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), determine
endangered species status under the Endangered Species Act of 1973
(Act), as amended, for the magnificent ramshorn (Planorbella
magnifica), a freshwater snail species from southeastern North
Carolina. We also designate critical habitat for the species. In total,
approximately 739 acres (299 hectares) in two ponds in Brunswick
County, North Carolina, fall within the boundaries of the critical
habitat designation. This rule applies the protections of the Act to
this species and its designated critical habitat.
DATES: This rule is effective September 18, 2023.
ADDRESSES: This final rule is available on the internet at https://www.regulations.gov. Comments and materials we received are available
for public inspection at https://www.regulations.gov at Docket No. FWS-
R4-ES-2022-0070.
Supporting materials we used in preparing this rule, such as the
species status assessment report, are available on the Service's
website at https://www.fws.gov/office/eastern-north-carolina/library,
at https://www.regulations.gov at Docket No. FWS-R4-ES-2022-0070, or
both. For the critical habitat designation, the coordinates or plot
points or both from which the maps are generated are included in the
decision file for this critical habitat designation and are available
at https://www.regulations.gov at Docket No. FWS-R4-ES-2022-0070 and on
the Service's website at https://www.fws.gov/office/eastern-north-carolina/library.
FOR FURTHER INFORMATION CONTACT: Pete Benjamin, Field Supervisor, U.S.
Fish and Wildlife Service, Raleigh Ecological Services Field Office,
P.O. Box 33726, Raleigh, NC 27636-3726; telephone 919-856-4520.
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
[[Page 56472]]
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 magnificent ramshorn meets
the definition of an endangered species; therefore, we are listing it
as such and finalizing 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. This rule lists the magnificent ramshorn
(Planorbella magnifica) as an endangered species and designates
critical habitat for this species under the Act. We are designating 739
acres (299 hectares) in two ponds in Brunswick County, North Carolina,
as critical habitat for the species.
The basis for our action. Under the Act, we may determine that a
species is an endangered or threatened species because of any of five
factors: (A) The present or threatened destruction, modification, or
curtailment of its habitat or range; (B) overutilization for
commercial, recreational, scientific, or educational purposes; (C)
disease or predation; (D) the inadequacy of existing regulatory
mechanisms; or (E) other natural or manmade factors affecting its
continued existence. We have determined the species may no longer exist
in the wild, as it has not been found in surveys over the past 40 years
at the only known historical locations. While likely locally extirpated
from the wild, it does persist in captive populations. The most
significant stressor that likely led to the extirpation of magnificent
ramshorn in the wild is the loss of suitable lentic (still or slow-
flowing) habitat (Factor A) that individuals and populations need to
complete their life history. The primary causes of historical habitat
loss are related to anthropogenic activities coupled with extreme
weather events that have altered water quality (Factor E) such that the
breeding, feeding, sheltering, and dispersal needs of the snails cannot
be met. There are no existing regulatory mechanisms that ameliorate or
reduce these threats such that the species does not warrant listing
(Factor D).
Section 4(a)(3) of the Act requires the Secretary of the Interior
(Secretary) to designate critical habitat concurrent with listing to
the maximum extent prudent and determinable. Section 3(5)(A) of the Act
defines critical habitat as (i) the specific areas within the
geographical area occupied by the species, at the time it is listed, on
which are found those physical or biological features (I) essential to
the conservation of the species and (II) which may require special
management considerations or protections; and (ii) specific areas
outside the geographical area occupied by the species at the time 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.
Previous Federal Actions
Please refer to the August 18, 2022, proposed rule (87 FR 50804)
for a detailed description of previous Federal actions concerning the
magnificent ramshorn.
Peer Review
A species status assessment (SSA) team prepared an SSA report for
the magnificent ramshorn. The SSA team was composed of Service
biologists, in consultation with other experts on the magnificent
ramshorn. 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 magnificent ramshorn SSA
report. As discussed in the August 18, 2022, proposed rule (87 FR
50804), we sent the SSA report to five independent peer reviewers and
received two responses. The peer reviews can be found at https://regulations.gov. We also received valuable partner review. In preparing
the proposed rule, we incorporated the results of these reviews, as
appropriate, into the SSA report, which was the foundation for the
proposed rule and this final rule.
Summary of Changes From the Proposed Rule
In preparing this final rule, we reviewed and fully considered all
comments we received from the public during the comment period on the
August 18, 2022, proposed rule (87 FR 50804). We made minor,
nonsubstantive changes and corrections to this document in response to
comments we received; no edits were required for the SSA report. The
information we received during the public comment period on the
proposed rule did not change our analysis, rationale, or determination
that the magnificent ramshorn warrants listing as an endangered species
under the Act. It also did not substantively modify our critical
habitat designation.
Summary of Comments and Recommendations
In our August 18, 2022, proposed rule (87 FR 50804), we requested
that all interested parties submit written comments on the proposal by
October 17, 2022. We also contacted appropriate Federal and State
agencies, scientific experts and organizations, and other interested
parties and invited them to comment on the proposal. Newspaper notices
inviting general public comment were published in The News and Observer
and The Herald Sun on August 30, 2022. We did not receive any requests
for a public hearing.
Nearly every public comment we received expressed support for the
proposed rule, including 68 signatures collected and submitted by the
Coastal Plain Conservation Group and 1,000 signatures collected via a
petition of support and submitted by the North Carolina Conservation
Network. No commenters stated that they were opposed to the proposed
rule or any portions thereof, although one mentioned the potential for
the listing of the species to affect the aquarium trade (see (4)
Comment, below). One commenter provided literature and forestry best
management practice information without expressing either support or
opposition to the proposed rule; we address this comment under (5)
Comment, below. Several public comments expressing support included
reasons such as biodiversity conservation, the importance of snails as
part of the ecosystem, and the snail as a provider of beneficial
ecological functions (e.g., grazing) and ecosystem services that
benefit people (e.g., contributing to water quality). We address topics
requiring our response below.
[[Page 56473]]
Comments From States
(1) Comment: The North Carolina Wildlife Resources Commission
(NCWRC) stated that it was satisfied that data it provided to the
Service were adequately incorporated into the SSA report for the
magnificent ramshorn. The NCWRC requested that if the Service lists the
magnificent ramshorn, the Service supports conservation and restoration
efforts for the species under section 10 of the Act. The NCWRC also
recommended against being overly prescriptive in identifying locations
for the species' reintroduction.
Our Response: The Service appreciates confirmation that data
provided to us were sufficiently considered. Adaptive strategies for
reintroduction will be important as we continue to learn about the
species' ecology and remaining adaptive capacity, and as we investigate
the proximity of threats and the availability of suitable habitats
within and near the species' known historical range. The Service
intends to use the full breadth of its authorities and programs to
support the species' recovery, including section 10 of the Act, as
appropriate.
Public Comments
(2) Comment: Several commenters requested that the Service
designate additional critical habitat or identify additional habitat,
including places outside the species' native historical range. One
commenter called the proposed critical habitat designation insufficient
to ensure the survival and recovery of the species. Many of these
comments included references to multiple threats relevant to the
proposed designated critical habitats, including saltwater intrusion
related to dredging and sea level rise, climate change, or other
climate-related weather patterns (i.e., hurricanes, flooding, and
drought). Multiple commenters requested that five unspecified
additional sites be designated in locations higher in the watershed and
away from immediate saltwater intrusion threats, and one commenter
suggested specific locations, including Greenfield Lake (a historical
habitat location); Sutton, Spring, Patricia, and White Lakes and Pretty
Pond (higher in the watershed); and Lake Waccamaw, which is located
outside the Cape Fear River Basin.
Our Response: The Service recognizes that multiple locations beyond
the two designated critical habitat sites will be necessary to support
a full recovery of the magnificent ramshorn, but we currently cannot
determine which other sites will have the best chance of success in
supporting introduction of the species. Accordingly, we cannot
determine that additional sites are essential for the conservation of
the magnificent ramshorn and meet the Act's definition of critical
habitat. We acknowledged this under Conservation Strategy in the August
18, 2022, proposed rule (i.e., occupied and self-sustaining populations
at two known historical locations and at least two additional locations
within the species' historical range) (see 87 FR 50804, August 18,
2022, at pp. 50814-50815). We further stated that these strategic
efforts to promote at least four wild populations will be more
thoroughly addressed in future recovery planning for the species (87 FR
50804, August 18, 2022, at p. 50814).
We appreciate the specific site suggestions for supporting the
species; these may be helpful in future recovery planning and
implementation efforts. However, the Service is required to use primary
sources of information (e.g., SSA, peer-reviewed literature, or
scientific studies) to determine areas that should be designated as
critical habitat for listed species. Thus, for the magnificent
ramshorn, for any additional sites, we would have to evaluate each site
to determine whether it is essential for the conservation of the
species in order to designate it as critical habitat for the species.
Also, we would need to evaluate each unoccupied area to determine if
the habitat can support the species' life history needs, such as ponds
with permanent lentic flow conditions that have sufficient littoral
depth to sustain large-leaved emergent aquatic vegetation, with a
circumneutral pH, no salinity, and natural water hardness to promote
snail growth. As stated in the August 18, 2022, proposed rule,
designated critical habitat will not limit or direct future
conservation measures for the magnificent ramshorn (87 FR 50804, August
18, 2022, at p. 50813). We also note in the August 18, 2022, proposed
rule that Greenfield Lake no longer has suitable habitat for the
species (87 FR 50804, August 18, 2022, at p. 50815), which is why it
does not meet the criteria for critical habitat designation. Finally,
the magnificent ramshorn is one of many aquatic species covered under a
new safe harbor agreement (SHA)/candidate conservation agreement with
assurances (87 FR 51698; August 23, 2022) that will support
conservation through reintroduction into suitable habitats. The Service
issued an enhancement of survival permit under section 10 of the Act to
the NCWRC in October 2022 (permit number ESPER0041144), which can be
used to restore the magnificent ramshorn to future suitable sites
through cooperation with landowners in North Carolina.
(3) Comment: Some commenters urged the Service to expand the
captive breeding capacity for the magnificent ramshorn. At least two
commenters called for the need to support a third captive breeding
facility, specifically naming the Coastal Plain Conservation Group, to
maintain the genetic health and adaptive capacity of the species, to
support reintroduction into wild habitats, and to account for losses
that could occur in the wild from predation or potential hybridization
with another common Planorbella species, while magnificent ramshorn
populations are becoming established.
Our Response: The Service is committed to fostering collaborative
conservation partnerships with all stakeholders and partners involved
in the species' survival, conservation, and recovery. We are actively
coordinating with all facilities holding captive populations of this
species, and we intend to continue involvement with species experts to
support recovery planning and implementation, including captive
propagation and reintroduction efforts. Beyond offering technical
assistance and centralized recovery coordination, the Service
recognizes the ongoing need for propagation materials (such as tanks)
and funding support to conserve species. We intend to support these
efforts as priorities and funds allow.
(4) Comment: Commenters referenced the aquarium trade and ramshorn
snails, stating that the aquarist community is a source of knowledge
for captive culture techniques, commenting on the legal effects on the
aquarium trade of listing ramshorn snails, and commenting on protecting
ramshorn snails from the aquarium trade.
Our Response: This rule is specific to the magnificent ramshorn
snail (i.e., Planorbella magnifica) and this imperiled and rarely
encountered species, which is presumed extirpated in the wild, is not
the typical ramshorn(s) in hobby collections. Other snails in the
Planorbidae and Ampullariidae families are regularly called ramshorns
by collectors. Common species in the aquarium trade include the
Seminole ramshorn (Planorbella duryi), the great ramshorn (Planorbis
(Planorbarius) corneus), and the giant ramshorn (Marisa cornuarietis)
(Brand 2015, unpaginated; Doll 2020, unpaginated). These species and
their trade are not affected by the listing of the magnificent
ramshorn.
[[Page 56474]]
The fact that multiple people submitted comments related to the
ramshorn aquarium trade does suggest that future conservation and
recovery efforts should be mindful of the popularity of other planorbid
species of interest to collectors and the potential for collection
pressure on the magnificent ramshorn when it is reintroduced into the
wild.
(5) Comment: Several commenters expressed concerns about habitat
and water quality effects from the wood pellet biomass energy
harvesting industry within the historical range of the magnificent
ramshorn, citing increased pressure on swamp forests that could support
the magnificent ramshorn. In addition, one commenter provided a
comprehensive summary of literature largely relevant to the
consideration of forestry best management practices (BMPs) on stream
water quality and requested that it be referenced in the final rule.
The literature largely assesses whether the BMPs are being implemented
and if the oversight by State agencies or certification programs is
sufficient. The literature also addresses the extent to which adhering
to these BMPs provides reassurance of water quality protection in
forest harvesting and management activities.
Our Response: Forested landscapes provide many benefits to aquatic
ecosystems, and forest management practices are currently not among the
most pervasive stressors affecting the magnificent ramshorn. However,
we acknowledge that forest management operations are not risk-free and
emphasize that rare species with a narrow range, such as the
magnificent ramshorn, are especially vulnerable to isolated water
quality degradation events. We agree with one commenter's suggestion
that it would be prudent to identify habitats that could be protected
for future conservation of the snail, and have done so in our
conservation strategy (see below).
Regarding the comments on biomass energy harvesting, a recent study
compared conventional clearcut harvests and biomass harvests in
Virginia's Coastal Plain region to address concerns about biomass
harvesting, including any special considerations for the Coastal Plain
region (i.e., comparable to North Carolina's southeastern Coastal
Plain, which encompasses the historical range of the magnificent
ramshorn). The researchers found no significant difference in erosion
rates between biomass and conventional clearcut harvests, and they
reported similar rates of compliance with forestry BMPs between the
harvest types (Hawks et al. 2022, pp. 1, 5-8). They also found that BMP
implementation scores were a significant predictor of erosion rates,
meaning that implementing existing forestry BMPs is essential for
minimizing erosion to protect against sediment input into nearby water
bodies, and they noted their results suggest that developing new BMPs
specific to biomass harvesting are not necessary (Hawks et al. 2022;
pp. 1, 7-9). Another study reported similar findings in the Piedmont
physiographic region of Virginia (Barrett et al. 2016, entire).
Development and refinement of BMPs have resulted in substantial
improvements to forestry's impacts on water quality in recent decades
and have created a culture of water stewardship in the forest landowner
community, making this stakeholder group an important ally in the
conservation of imperiled species. Properly implemented State-approved
BMPs protect water quality and help conserve aquatic species and their
habitats. Further, those forest landowners who are third-party-
certified to a credible forest management standard are providing
audited certainty that BMP implementation is taking place across the
landscape. We encourage North Carolina's forestry practitioners to
maximize implementation of BMPs to avoid take of the magnificent
ramshorn.
Finally, in this rule, we have included references to literature
reviews that provide helpful context relevant to the effects of forest
management and harvesting on water quality in watersheds that may
support future populations of the magnificent ramshorn. The remainder
of the references provided by the commenter appear in the relevant
comment, which is available at https://www.regulations.gov under Docket
No. FWS-R4-ES-2022-0070.
I. Final Listing Determination
Background
A thorough review of the taxonomy, life history, and ecology of
magnificent ramshorn (Planorbella magnifica) is presented in the SSA
report (version 1.0; Service 2019, pp. 9-16).
Magnificent ramshorn is a species of air-breathing snail endemic to
southeastern North Carolina. It is a freshwater snail in the family
Planorbidae (Pilsbry 1903, pp. 75-76) and is the largest North American
snail in this family. It has a discoidal, (i.e., coiling in one plane)
relatively thin shell that reaches approximately 1.5 inches (38
millimeters) in diameter. The aperture of the shell is somewhat bell-
shaped and very wide, extending beyond the sides of the shell. Like
other members of the Planorbidae family, magnificent ramshorn is
primarily herbivorous, feeding on emergent and submerged aquatic
plants, algae, and detritus (decomposing plant material). Available
information indicates that suitable habitat for the species is
restricted to relatively shallow, sheltered portions of still or
sluggish freshwater (no salinity) bodies with an abundance and
diversity of emergent and submerged aquatic vegetation and a
circumneutral (nearly neutral) pH (see table 1, below).
Table 1--Magnificent Ramshorn's Habitat Needs
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Waterbody attribute Description
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pH................................ Ideal is 6.8 to 7.5; inactive below
6.5 and above 8.
Salinity.......................... Ideal is 0 parts per thousand (ppt);
1.0 ppt (1.0 grams per liter (g/L))
caused snails to withdraw.
Temperature....................... 60 [deg]F (16 [deg]C) and above.
Still able to feed at 93 [deg]F (34
[deg]C). Dormant below 60 [deg]F.
Hardness *........................ Ideal hardness is: Lab: 30 ppm (30
mg/L); Hatchery ponds: between 60
ppm (60 mg/L) and 220 ppm (200 mg/
L).
Emergent vegetation............... Aquatic vegetation in sufficient
littoral depth (about 0.5 to 6 feet
(ft) (0.15 to 2 meters (m))) used
for feeding and shelter.
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* ``Hardness'' is considered to be the sum of the calcium and magnesium
ions in water, expressed as milligrams per liter (mg/L) or parts per
million (ppm) as calcium carbonate. It affects snail survival,
particularly shell shape.
[[Page 56475]]
Historically, magnificent ramshorn was documented from only four
sites in the lower Cape Fear River Basin in North Carolina: (1)
Greenfield Lake, a millpond located on a tributary to the Cape Fear
River within the present city limits of Wilmington, New Hanover County;
(2) Orton Pond (also known as Sprunt's Pond), a millpond located on
Orton Creek in Brunswick County; (3) Big Pond (also known as Pleasant
Oaks Pond or Sand Hill Creek Pond), a millpond on Sand Hill Creek in
Brunswick County; and (4) McKinzie Pond, a millpond on McKinzie Creek,
in Brunswick County. Species-specific surveys of more than 100
potential sites (including most historical locations) over the last few
decades have not documented any magnificent ramshorn snails, and the
species is currently likely extirpated in the wild.
Regulatory and Analytical Framework
Regulatory Framework
Section 4 of the Act (16 U.S.C. 1533) and the implementing
regulations in title 50 of the Code of Federal Regulations set forth
the procedures for determining whether a species is an endangered
species or a threatened species, issuing protective regulations for
threatened species, and designating critical habitat for endangered and
threatened species. In 2019, jointly with the National Marine Fisheries
Service, the Service issued a final rule that revised the regulations
in 50 CFR part 424 regarding how we add, remove, and reclassify
endangered and threatened species and the criteria for designating
listed species' critical habitat (84 FR 45020; August 27, 2019). On the
same day, the Service also issued final regulations that, for species
listed as 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 expected response by the species
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 the
Service can reasonably determine that both the future threats and the
species' responses to those threats are likely. In other words, the
foreseeable future is the period of time in which we can make reliable
predictions. ``Reliable'' does not mean ``certain''; it means
sufficient to provide a reasonable degree of confidence in the
prediction. Thus, a prediction is reliable if it is reasonable to
depend on it when making decisions.
It is not always possible or necessary to define the foreseeable
future as a particular number of years. Analysis of the foreseeable
future uses the best scientific and commercial data available and
should consider the timeframes applicable to the relevant threats and
to the species' likely responses to those threats in view of its life-
history characteristics. Data that are typically relevant to assessing
the species' biological response include species-specific factors such
as lifespan, reproductive rates or productivity, certain behaviors, and
other demographic factors.
Analytical Framework
The SSA report documents the results of our comprehensive
biological review of the best scientific and commercial data regarding
the status of the species, including an assessment of the potential
threats to the species. The SSA report does not represent our decision
on whether the species should be listed 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 magnificent ramshorn'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, pathogen). 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'
[[Page 56476]]
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-2022-0070 at https://www.regulations.gov and on the Service's
website at https://www.fws.gov/office/eastern-north-carolina/library.
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. Although magnificent
ramshorn is considered a large snail, its shell is thin and fragile,
indicating that it is adapted to lentic (still or slow-flowing) aquatic
habitats. Available information indicates that suitable habitat for the
species is restricted to relatively shallow, sheltered portions of
still or sluggish, freshwater bodies with an abundance and diversity of
emergent and submerged aquatic vegetation and a circumneutral pH (pH
within the range of 6 to 8) (Jones 2020, pers. comm.). The species is
not able to survive in flowing water, nor is it able to tolerate any
amount of salinity, thus restricting it to inland, freshwater, pond-
like habitats.
Loss of Lentic (Pond) Habitats
Although the complete historical range of magnificent ramshorn is
unknown, available information indicates that the species was likely
once an inhabitant of beaver ponds on tributaries in the lower Cape
Fear River basin; the species may also have once inhabited backwater
and other sluggish portions of tributaries and the main channel of
lower Cape Fear River. Beaver pond habitat was eliminated throughout
much of the lower Cape Fear River as a result of the extirpation of the
beaver from trapping and hunting during the 19th and early 20th
centuries. This, together with draining and destruction of beaver ponds
for development, agriculture, and other purposes, is believed to have
led to a significant decline in the snails' habitat and significant
reduction in its abundance (Wood 2010, pp. 6, 7). Surveys in the 1990s
also noted the loss of ponds due to hurricanes (Adams 1993, p. 26).
Several ponds that were created or maintained by old mill dams have
structures that will fail, or have failed, during catastrophic events.
Catastrophic rainfall can overtop old mill dam structures and cause
portions of them to wash out, thus draining the ponds behind them. This
is likely what happened at McKinzie Pond. The four known historical
sites where magnificent ramshorn were found are, or were, ponds likely
created by old mill dams.
Saltwater Intrusion
Dredging and deepening of the Cape Fear River channel, which began
as early as 1822, and opening of the Atlantic Intracoastal Waterway
(through Snow's Cut) in 1930 for navigational purposes have caused
saltwater intrusion, altered the diversity and abundance of aquatic
vegetation, and changed flows and current patterns far up the river
channel and its lower tributaries (Adams 1993, p. 22; Wood 2010, p. 7).
Under these circumstances, magnificent ramshorn could have survived
only in lentic areas of tributary streams not affected by saltwater
intrusion and other changes, such as the millponds protected from
saltwater intrusion by their dams (Adams 1993, p. 22).
Climate change and sea level rise pose a significant long-term
threat to the survival of magnificent ramshorn. As previously noted,
magnificent ramshorn is salt-intolerant (Wood 2002, p. 3), and
saltwater intrusion into its habitat is one of the primary factors that
contributed to its extirpation in the wild. During the past century,
sea level has risen by 8+ inches (20+ centimeters (cm)), and available
information indicates the rate of sea level rise is increasing (U.S.
Global Change Research Program (USGCRP) 2009, p. 18; Kopp et al. 2015,
p. 700). Sea levels are rising at a rate of about an inch (2.5 cm) per
year (5 inches (12.7 cm) from 2011-2015) in some areas along the east
coast of North Carolina (Valle-Levinson et al. 2017, p. 7876). While
future rates of sea level change are uncertain, continued sea level
rise threatens the southeastern U.S. coastal zone with retreat of
shorelines, inundation of coastal wetlands and streams, and increased
salinity of estuaries, coastal wetlands, and tidal rivers and creeks,
pushing freshwater coastal ecosystems farther inland. In addition, in
the future, the southeastern United States faces potential higher
average temperatures (resulting in increased evaporation rates), less
frequent rainfall (resulting in potentially more frequent and longer
dry periods), and an increase in intensity of storm events, including
hurricanes; all of which are likely to increase the rate and upstream
distance of saltwater intrusion into coastal streams. Also, higher
average temperatures and longer periods between rainfall events,
together with increased development and human population levels in
Brunswick and New Hanover Counties, will result in an increased demand
on freshwater systems for drinking, irrigation, and other water needs,
exacerbating the effects of sea level changes on streams in the lower
Cape Fear River basin, which encompass the entire known historical
range of magnificent ramshorn (adapted from USGCRP and references
therein 2009, pp. 1111-1116).
Disrupted Nutrient Cycles--Pollution and Nutrient Inputs
The human residential population of Brunswick and New Hanover
Counties is rapidly increasing; both counties are popular vacationing
and retirement areas (see section 5-6 of the SSA report (Service 2019,
pp. 31-35)). Both counties are among the most rapidly developing
counties in the State, with population growth greater than 25 percent
during the period of 2000-2010 (WRAL-News 2019, unpaginated).
Typically, as development increases, the input of nutrients (through
both surface and groundwater), silt, and other pollutants into the
aquatic system increases. Increased input of these pollutants into
streams from point and non-point sources may result in eutrophication,
decreased dissolved oxygen concentration, increased acidity and
conductivity, and other changes in water chemistry. Impacts from
development within the areas that formerly harbored magnificent
ramshorn, or within areas that may provide potential habitat for the
species, have the potential to reduce groundwater levels, which could
have a serious adverse effect on pH, water hardness, and salinity
levels.
[[Page 56477]]
Altered Aquatic Vegetation Communities
Aquatic vegetation is common in pond systems, but sometimes the
vegetation can be invasive and overwhelm the aquatic system, such as in
Greenfield Lake, formerly occupied snail habitat in Wilmington.
Managing vegetation in ponds takes many forms; some practices are
compatible with molluscan pond inhabitants (like magnificent ramshorn),
such as aeration or mechanical cutting/removal, but some practices can
significantly impact snails, such as using grass carp (Ctenopharyngodon
idella), using copper-based herbicides, or drawing water out of the
pond and subsequently drying out vegetation for complete removal, as
was once done in Big Pond, formerly occupied by the ramshorn. The
latter practices result in snail mortality, either from complete
elimination of aquatic vegetation on which the snails depend, exposure
to toxic metals like copper, lethal temperatures, predation, or
desiccation from no access to water (Adams 1993, p. 12).
Extreme Weather Events
Changes in climate and weather patterns may affect ecosystem
processes and communities by altering the abiotic conditions
experienced by biotic assemblages, resulting in potential effects on
community composition and individual species interactions (DeWan et al.
2010, p. 7). This is especially true for aquatic systems where
increases in droughts or severe storm events resulting from climate
change can trigger a cascade of ecological effects. For example,
increases in air temperatures can lead to subsequent increases in water
temperatures that, in turn, may lower water quality parameters (like
pH), ultimately influencing overall habitat suitability for species
like magnificent ramshorn.
Impacts from climate change affect sea levels; alter precipitation
patterns and subsequent delivery of freshwater, nutrients, and
sediment; and change the frequency and intensity of coastal storms
(Michener et al. 1997, p. 770; Scavia et al. 2002, p. 149; Neumann et
al. 2015, p. 97). During the time when magnificent ramshorn became
extremely rare in the wild (1990s-2000s), three of the top five
strongest/most intense storms experienced in Wilmington, North
Carolina, occurred (1996, 1998, and 1999) and caused massive flooding
and saltwater intrusion into the ponds where magnificent ramshorn
occurred (Service 2019, p. 24).
The North Carolina Wildlife Action Plan (NCWRC 2015, pp. 5-48)
identifies climate change as a ``very high'' threat to magnificent
ramshorn. In addition, in an assessment of ecosystem response to
climate change, factors associated with climate change ranked high with
other factors that were deemed imminent risks to magnificent ramshorn's
historical population locations (e.g., development, pollution, flood
regime alteration, etc.; (North Carolina Natural Heritage Program
(NCNHP) 2010, entire). Furthermore, it should be recognized that the
greatest threat from climate change to magnificent ramshorn habitat 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 (Arabshahi and Raines 2012, p. 8). As
a result, impacts from rapid urbanization in the region might be
exacerbated under even a mild-to-moderate climate future.
Summary
Based on the results of repeated surveys from the 1980s to 2010s by
qualified species experts in the species' historical habitat and
suitable habitat in surrounding areas, there appear to be no extant
populations of magnificent ramshorn in the wild. While several factors
have likely contributed to the extirpation of magnificent ramshorn in
the wild, the primary factors include loss of lentic habitats, perhaps
associated with the extirpation of beavers (and their impoundments)
between the early and late 20th century; increased salinity and
alteration of flow patterns in the lower Cape Fear River Basin; and
increased input of nutrients and other pollutants that may have altered
the pH of pond waters beyond what the species can tolerate.
The extirpation of magnificent ramshorn from Greenfield Lake is
likely attributable to the alteration of the lake's water quality and
chemistry resulting from past events such as breaks in sewer lines on
the bottom of the lake; sewage overflows during storm events; runoff of
fertilizers, sediment, toxic chemicals, and other pollutants from heavy
development in the watershed; and efforts by the city of Wilmington to
control aquatic plants and algae within the lake. All of these changes
to Greenfield Lake likely led to salinization of the waters to levels
beyond what the species could tolerate. Additionally, application of
herbicides (usually containing copper) to control aquatic plants would
not only have eliminated the snail's food source but could have also
directly killed individual snails.
The Big Pond population of magnificent ramshorn was likely
extirpated in 1996, when the dam on the pond was breached during
flooding associated with Hurricane Fran. This resulted in the
subsequent drawdown of the pond due to failure of the dam, and
saltwater intrusion into the pond from upstream movement of the
saltwater wedge in the Cape Fear River, which killed the aquatic
vegetation and eliminated the salt-intolerant magnificent ramshorn.
Magnificent ramshorn was last observed in McKenzie Pond in 2004,
but was likely extirpated due to saltwater intrusion resulting from
prolonged drought conditions that allowed tidal flow of saltwater to
extend into the areas harboring the snail.
Magnificent ramshorn may have been eliminated from Orton Pond by
the previous attempts to control aquatic vegetation by drawing down the
pond for extended periods of time, thus eliminating essential habitat
components of water and vegetation, causing snail extirpation.
The ongoing anthropogenic activities described above, coupled with
the effects of climate change, such as extreme weather events (e.g.,
storms/hurricanes) that may blow out dams and cause saltwater
intrusion, have the potential to continue to alter habitat and water
quality such that the breeding, feeding, sheltering, and dispersal
needs of magnificent ramshorn cannot be met.
While efforts have been made to restore habitat for magnificent
ramshorn at one of the sites known to have previously supported the
species, all of the sites continue to be affected by many of the same
factors (i.e., saltwater intrusion and other water quality degradation,
nuisance aquatic plant control, storms, sea level rise, etc.) thought
to have resulted in extirpation of the species from the wild.
Currently, only three captive populations exist, with approximately
1,000 snails in existence. Although captive populations have been
maintained since 1993, a catastrophic event, such as a severe storm,
disease, or predator infestation, affecting one or more of the captive
populations, could result in the near extinction of the species.
Magnificent ramshorn lacks the resiliency, redundancy, and
representation necessary for viability in the wild. Magnificent
ramshorn populations were not able to survive habitat degradation
resulting from impacts including saltwater intrusion, pollutant influx,
and human alteration of aquatic vegetation communities, thus
eliminating the species' resiliency. Based on knowledge of the snail
and the
[[Page 56478]]
systems on which it depends, the loss of habitat, and the lack of
finding any magnificent ramshorns despite surveying dozens of possible
locations, magnificent ramshorn has no redundancy in the wild.
Furthermore, the historical range of the species is narrow and limited
to lentic habitats within the Coastal Plain of southeastern North
Carolina. We do not know the level of genetic diversity of the captive
animals; however, we do know that the individuals in captivity are all
descendants of adult snails from two distinct populations: Pleasant
Oaks Pond and McKinzie Pond. The captive ramshorns have extremely
limited representation, and because no magnificent ramshorns are known
to exist in the wild, the species has no representation in the wild. We
cannot project future conditions because there are no known extant
populations on which we can project those conditions. While magnificent
ramshorn is likely extirpated from the wild, recovering the species
means re-establishing self-sustaining populations in the wild.
We note that, by using the SSA framework to guide our analysis of
the scientific information documented in the SSA report, we have not
only analyzed individual effects on the species, but we have also
analyzed their potential cumulative effects. We incorporate the
cumulative effects into our SSA analysis when we characterize the
current and future condition of the species. To assess the current and
future condition of the species, we undertake an iterative analysis
that encompasses and incorporates the threats individually and then
accumulates and evaluates the effects of all the relevant factors that
may be influencing the species, including threats and conservation
efforts. Because the SSA framework considers not just the presence of
the factors, but to what degree they collectively influence risk to the
entire species, our assessment integrates the cumulative effects of the
factors and replaces a standalone cumulative effects analysis.
Conservation Efforts and Regulatory Mechanisms
Magnificent ramshorn is currently listed by the State of North
Carolina as an endangered species. However, this designation does not
protect the species from ``incidental'' harm, injury, or death (that
is, harm, injury, or death resulting from activities not specifically
intended to harm the species) or provide any protection to the species'
habitat except on State-owned lands.
Captive holding of magnificent ramshorn began in the early 1990s,
when individuals were collected to learn about their life-history
requirements (Adams 1993, entire). In the mid-1990s, snails were held
in captivity at the North Carolina Aquarium at Fort Fisher, but they
were later moved to a private residence due to the influence of salt-
laden air at the aquarium. There is a well-maintained snail sanctuary
at the private residence, kept since the mid-1990s with approximately
100 breeding ramshorn snails.
In early 2012, a small captive population (35 individuals) was
established at North Carolina State University's College of Veterinary
Medicine's (CVM) Aquatic Epidemiology Conservation Laboratory in
Raleigh, North Carolina. These captive snails have reproduced
successfully, and there are currently approximately 100 snails at the
facility (which had to scale back operations temporarily due to Covid-
19 restrictions).
Additional facilities for holding and propagating magnificent
ramshorn at the NCWRC's hatchery in Watha, North Carolina, were
established in 2011. In 2018, NCWRC hired a snail technician to focus
on magnificent ramshorn husbandry at the Watha hatchery. The NCWRC
subsequently moved the snail technician and all snails to their
Conservation Aquaculture Center in Marion, North Carolina; there are
currently approximately 775 breeding snails at this location.
In 2012-2013, several potentially suitable locations, including
portions of Orton Pond, McKinzie Pond, Big Pond (Sand Hill Creek/
Pleasant Oaks Pond), and nearby Pretty Pond, were all brought under
single ownership. In 2014, the landowner approached the Service to
determine the possibility of restoring the snail to Big Pond at the
Pleasant Oaks Plantation. A proposal to assess snail restoration
potential under a candidate conservation agreement with assurances
(CCAA) has been formulated but not finalized or implemented.
The North Carolina Division of Water Resources and the Service are
working with the city of Wilmington, North Carolina, to improve the
water quality of Greenfield Lake, which formerly supported the species.
Greenfield Lake is currently on the State's list of impaired water
bodies due to excessive nutrient inputs.
In 2018, Service staff performed an analysis to determine the
suitability of potential habitats within the former range to support
introduction of magnificent ramshorn. The results are being used by
staff, as well as State and Federal partners, to field-verify the
suitability of potential locations. In preparation for potential
reintroduction, the Service has drafted experimental protocols to
detail necessary steps for possible introduction of the species into
the wild. Further, the Service has a SHA/CCAA for landowners interested
in contributing to the conservation of the State's aquatic species;
this agreement broadly covers aquatic species and is in addition to the
draft CCAA with the owner of three ponds in the species' historical
range.
In 2019 and 2020, Service staff met with Department of Defense
(DoD) and the North Carolina Plant Conservation Program (NCPCP), both
landowners with several ponds on their properties within the historical
range of magnificent ramshorn. The DoD's Military Ocean Terminal Sunny
Point is immediately adjacent to the private property where the species
was last known to occur in the wild. The NCPCP and DoD own ponds in the
same watershed as the historical locations. Both are amenable to having
water quality analyzed to determine whether their ponds could be
suitable habitat for snail introduction, and that habitat assessment
work began in 2021 under the lead of NCWRC.
Further, in a 2019 legal settlement involving a major highway
project, the North Carolina Department of Transportation committed
$250,000 for magnificent ramshorn propagation into the future while
both the Service and partners work on reintroduction site assessment
and landowner agreements.
Determination of Magnificent Ramshorn'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 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 endangered species
or 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
[[Page 56479]]
manmade factors affecting its continued existence.
Status Throughout All of Its Range
We have determined that magnificent ramshorn is likely extirpated
in the wild predominantly as a result of the loss of suitable lentic
(still or slow-flowing) habitat that individuals and populations need
to complete their life history (Factor A). The primary causes of
historical habitat loss are related to anthropogenic activities that
removed aquatic vegetation, coupled with extreme weather events (e.g.,
hurricanes that breach dams) that have altered water quality via
saltwater intrusion (Factor E) such that the breeding, feeding,
sheltering, and dispersal needs of the snails cannot be met. Existing
regulatory mechanisms are not adequate to ameliorate or address these
threats (Factor D).
After evaluating threats to the species and assessing the
cumulative effect of the threats under the Act's section 4(a)(1)
factors, magnificent ramshorn does not have sufficient resiliency,
representation, and redundancy for viability. Based on decades of
surveys attempting to locate the species, magnificent ramshorn is
likely extirpated in the wild. The past loss of suitable pond habitat
and the challenge of finding suitable introduction sites exacerbates
the current situation for magnificent ramshorn. The only known
surviving individuals of the species are being held as part of captive
populations. Although captive populations have been maintained since
1993, a catastrophic event, such as a severe storm, disease, or
predator infestation, affecting one or more of the captive populations
could result in the near extinction of the species. Thus, after
assessing the best available information, we conclude that magnificent
ramshorn 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
within the foreseeable future throughout all or a significant portion
of its range. We have determined that the magnificent ramshorn is in
danger of extinction throughout all of its range and accordingly did
not undertake an analysis of any significant portions of its range.
Because the magnificent ramshorn 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), 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'' (Final Policy) (79 FR 37578, July
1, 2014) providing that if the Services determine that a species is
threatened throughout all of its range, the Services will not analyze
whether the species is endangered in a significant portion of its
range.
Determination of Status
Our review of the best available scientific and commercial
information indicates that the magnificent ramshorn meets the Act's
definition of an endangered species. Therefore, we are listing the
magnificent ramshorn 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.
Recovery planning consists of preparing draft and final recovery
plans, beginning with the development of a recovery outline and making
it available to the public. The recovery outline guides the immediate
implementation of urgent recovery actions and describes the process to
be used to develop a recovery plan. Revisions of the plan may be done
to address continuing or new threats to the species, as new substantive
information becomes available. The recovery plan also 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. Recovery teams (composed of
species experts, Federal and State agencies, nongovernmental
organizations, and stakeholders) are often established to develop
recovery plans. When completed, the recovery outline, draft recovery
plan, and the final recovery plan will be available on our website
(https://www.fws.gov/program/endangered-species), or from our Raleigh
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).
Implementation of recovery actions generally requires the
participation of a broad range of partners, including other Federal
agencies, States, Tribes, nongovernmental organizations, businesses,
and private landowners. Examples of recovery actions include habitat
restoration (e.g., restoration of native vegetation), research, captive
propagation and reintroduction, and outreach and education. The
recovery of many listed species cannot be accomplished solely on
Federal lands because their range may occur primarily or solely on non-
Federal lands. To achieve recovery of these species requires
cooperative conservation efforts on private, State, and Tribal lands.
Once this species is listed, funding for recovery actions will be
available from a variety of sources, including Federal budgets, State
programs, and cost-share grants for non-Federal landowners, the
academic community, and nongovernmental organizations. In addition,
pursuant to section 6 of the Act, the State of North Carolina will be
eligible for Federal funds to implement management actions that promote
the protection or recovery of the magnificent ramshorn. Information on
our grant programs that are available to aid species recovery can be
found at: https://www.fws.gov/service/financial-assistance.
Please let us know if you are interested in participating in
recovery efforts for the magnificent ramshorn. Additionally, we invite
you to submit any new information on this species
[[Page 56480]]
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 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)(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 any endangered or threatened 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 (action agency) must enter into consultation with us.
Federal agency actions within the species' habitat that may require
conference, consultation, or both as described in the preceding
paragraph include management and any other landscape-altering
activities on Federal lands administered by the U.S. Army Corps of
Engineers, and construction and maintenance of roads or highways by the
Federal Highway Administration.
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. There are also certain statutory 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 listing on
proposed and ongoing activities within the range of the listed species.
Based on the best available information, the following actions 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) Unauthorized handling or collecting of the species;
(2) Destruction or alteration of the species' habitat by draining,
ditching, tiling, or diverting or altering surface or ground water flow
into or out of ponds or other slack water areas;
(3) Herbicide or other pesticide applications in violation of label
restrictions in areas occupied by magnificent ramshorn;
(4) Introduction of nonnative species that compete with or prey
upon magnificent ramshorn;
(5) Removal or destruction of emergent aquatic vegetation in areas
designated as critical habitat or in any body of water in which
magnificent ramshorn becomes established; and
(6) Discharge of chemicals into any waters in which magnificent
ramshorn becomes established.
Questions regarding whether specific activities would constitute a
violation of section 9 of the Act should be directed to the Raleigh
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).
II. Critical Habitat
Background
Section 4(a)(3) of the Act requires that, to the maximum extent
prudent and determinable, we designate a species' critical habitat
concurrently with listing the species. None of the situations
identified at 50 CFR 424.12(a) for when designation of critical habitat
would be not prudent or not determinable is present. We, therefore, are
designating critical habitat for magnificent ramshorn concurrently with
listing it.
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Our regulations at 50 CFR 424.02 define the geographical area
occupied by the species as an area that may generally be delineated
around species' occurrences, as determined by the Secretary (i.e.,
range). Such areas may include those areas used throughout all or part
of the species' life cycle, even if not used on a regular basis (e.g.,
migratory corridors, seasonal habitats, and habitats used periodically,
but not solely by vagrant individuals).
This critical habitat designation for the magnificent ramshorn was
proposed when the regulations governing the Service's process for
excluding areas of critical habitat under section 4(b)(2) of the Act
(85 FR 82376; December 18, 2020) were in place and in effect. However,
those regulations have been rescinded (87 FR 43433; July 21, 2022) and
no longer apply to any designations of critical habitat. Therefore, for
this final rule designating critical habitat for the magnificent
ramshorn, we apply the regulations at 50 CFR 424.19 and the Policy
Regarding Implementation of Section 4(b)(2) of the Endangered Species
Act (2016 Joint Policy; 81 FR 7226, February 11, 2016).
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.
[[Page 56481]]
Critical habitat receives protection under section 7 of the Act
through the requirement that Federal agencies ensure, in consultation
with the Service, that any action they authorize, fund, or carry out is
not likely to result in the destruction or adverse modification of
critical habitat. The designation of critical habitat does not affect
land ownership or establish a refuge, wilderness, reserve, preserve, or
other conservation area. Such designation also does not allow the
government or public to access private lands. Such designation does not
require implementation of restoration, recovery, or enhancement
measures by non-Federal landowners. Where a landowner requests Federal
agency funding or authorization for an action that may affect a listed
species or critical habitat, the Federal agency would be required to
consult with the Service under section 7(a)(2) of the Act. However,
even if the Service were to conclude that the proposed activity would
likely result in destruction or adverse modification of the critical
habitat, the Federal action agency and the landowner are not required
to abandon the proposed activity, or to restore or recover the species;
instead, they must implement ``reasonable and prudent alternatives'' to
avoid destruction or adverse modification of critical habitat.
Under the first prong of the Act's definition of critical habitat,
areas within the geographical area occupied by the species at the time
it was listed are included in a critical habitat designation if they
contain physical or biological features (1) which are essential to the
conservation of the species and (2) which may require special
management considerations or protection. For these areas, critical
habitat designations identify, to the extent known using the best
scientific data available, those physical or biological features that
are essential to the conservation of the species (such as space, food,
cover, and protected habitat).
Under the second prong of the Act's definition of critical habitat,
we can designate critical habitat in areas outside the geographical
area occupied by the species at the time it is listed, upon a
determination that such areas are essential for the conservation of the
species.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific data available. Further, our Policy on
Information Standards Under the Endangered Species Act (published in
the Federal Register on July 1, 1994 (59 FR 34271)), the Information
Quality Act (section 515 of the Treasury and General Government
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)),
and our associated Information Quality Guidelines provide criteria,
establish procedures, and provide guidance to ensure that our decisions
are based on the best scientific data available. They require our
biologists, to the extent consistent with the Act and with the use of
the best scientific data available, to use primary and original sources
of information as the basis for recommendations to designate critical
habitat.
When we are determining which areas should be designated as
critical habitat, our primary source of information is generally the
information from the SSA report and information developed during the
listing process for the species. Additional information sources may
include any generalized conservation strategy, criteria, or outline
that may have been developed for the species; the recovery plan for the
species; articles in peer-reviewed journals; conservation plans
developed by States and counties; scientific status surveys and
studies; biological assessments; other unpublished materials; or
experts' opinions or personal knowledge.
Habitat is dynamic, and species may move from one area to another
over time. We recognize that critical habitat designated at a
particular point in time may not include all of the habitat areas that
we may later determine are necessary for the recovery of the species.
For these reasons, a critical habitat designation does not signal that
habitat outside the designated area is unimportant or may not be needed
for recovery of the species. Areas that are important to the
conservation of the 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 this species. Similarly, critical
habitat designations made on the basis of the best available
information at the time of designation will not control the direction
and substance of future recovery plans, habitat conservation plans
(HCPs), or other species conservation planning efforts if new
information available at the time of these planning efforts calls for a
different outcome.
Physical or Biological Features Essential to the Conservation of the
Species
In accordance with section 3(5)(A)(i) of the Act and regulations at
50 CFR 424.12(b), in determining which areas we will designate as
critical habitat from within the geographical area occupied by the
species at the time of listing, we consider the physical or biological
features that are essential to the conservation of the species and
which may require special management considerations or protection. The
regulations at 50 CFR 424.02 define ``physical or biological features
essential to the conservation of the species'' as the features that
occur in specific areas and that are essential to support the life-
history needs of the species, including, but not limited to, water
characteristics, soil type, geological features, sites, prey,
vegetation, symbiotic species, or other features. A feature may be a
single habitat characteristic or a more complex combination of habitat
characteristics. Features may include habitat characteristics that
support ephemeral or dynamic habitat conditions. Features may also be
expressed in terms relating to principles of conservation biology, such
as patch size, distribution distances, and connectivity. For example,
physical features essential to the conservation of the species might
include gravel of a particular size required for spawning, alkaline
soil for seed germination, protective cover for migration, or
susceptibility to flooding or fire that maintains necessary early-
successional habitat characteristics. Biological features might include
prey species, forage grasses, specific kinds or ages of trees for
roosting or nesting, symbiotic fungi, or absence of a particular level
of nonnative species consistent with conservation needs of the listed
species. The features may also be combinations of habitat
characteristics and may encompass the relationship between
characteristics or the necessary amount of a characteristic essential
to support the life history of the species.
In considering whether features are essential to the conservation
of the species, we may consider an appropriate quality, quantity, and
spatial and temporal arrangement of habitat characteristics in the
context of the life-history needs, condition, and status of the
species. These characteristics
[[Page 56482]]
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
We derive the specific physical or biological features essential to
the conservation of magnificent ramshorn from studies of the species'
habitat, ecology, and life history as described below. Additional
information can be found in the SSA report (Service 2019, entire;
available on https://www.regulations.gov under Docket No. FWS-R4-ES-
2022-0070). We have determined that the physical or biological features
essential to the conservation of magnificent ramshorn consist of
waterbodies within the species' historical range that:
1. Maintain permanent, lentic flow conditions;
2. Have sufficient littoral depth (approximately 0.5 to 6 feet) to
sustain large-leaved emergent aquatic vegetation (e.g., water lilies,
spatterdock, etc.);
3. Maintain circumneutral pH (i.e., between pH 6 and 8);
4. Have no salinity (i.e., 0 parts per thousand (ppt) salinity);
and
5. Maintain natural water hardness to promote shell growth (greater
than 60 parts per million (ppm) calcium carbonate).
Criteria Used To Identify Critical Habitat
Conservation Strategy
Future viability for magnificent ramshorn depends on maintaining
multiple resilient populations over time. While the species is
currently likely extirpated from the wild, species experts have
identified several strategic efforts that will be important to build
the future viability of the species. These could include:
1. Maintain at least two secure captive populations of magnificent
ramshorn until such time as there are enough populations in the wild to
no longer necessitate such an effort.
2. Reintroduce magnificent ramshorn snails to at least two known
historical locations and establish monitoring to ensure reintroductions
are successful; augment until populations are established and success
criteria are met.
3. Introduce magnificent ramshorn snails to at least two other
locations with suitable habitat within the historical range of the
species. Monitor to ensure reintroductions are successful; augment
until populations are established.
These strategic efforts to promote at least four wild populations
(two historical locations occupied and self-sustaining, as well as two
other locations within the historical range occupied and self-
sustaining) will be more thoroughly addressed in future recovery
planning for the species.
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. Because the species is likely
extirpated in the wild, we have determined that there are no occupied
areas to ensure the conservation of the species. Accordingly, we are
designating critical habitat in two unoccupied areas within the
historical range for the species. In addition, these unoccupied areas
are essential for the conservation of the species. Each of the two
unoccupied units contains suitable habitat for the magnificent
ramshorn--the ponds contain slow-moving waters, are of sufficient depth
to sustain emergent aquatic vegetation, and are managed consistent with
magnificent ramshorn's life requisites. Both ponds were previously
occupied by magnificent ramshorn, and we determined the factors that
led to the species' decline in these locations have been ameliorated or
are manageable.
To delineate critical habitat units, we used the U.S. Geological
Survey's high resolution National Hydrography Dataset (NHD) to
determine the boundaries of each pond. We included all waters from the
base of the dams upstream to the upper limits of the pond features that
became more stream-like, as demarcated in the NHD data layer. For areas
outside the geographic area occupied by the species at the time of
listing, we identified the critical habitat units using the following
considerations:
a. Unoccupied habitats have historical records of species
occurrence;
b. Unoccupied areas exhibit suitable habitat availability,
providing the physical or biological features necessary for survival,
growth, and reproduction of the species;
c. Unoccupied areas provide habitat for reintroduction, with
potential to reduce the level of stochastic and human-induced threats,
and decrease the risk of extinction because the areas currently contain
the essential physical or biological features to support life-history
functions of magnificent ramshorn; and
d. Unoccupied habitat currently supports diverse aquatic pond
communities, including the presence of closely related species
requiring physical or biological features similar to magnificent
ramshorn.
When determining 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 the physical or
biological features necessary for magnificent ramshorn. 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 rule have been excluded by
text in the rule and are not designated as critical habitat. Therefore,
a Federal action involving these lands will not trigger section 7
consultation with respect to critical habitat and the requirement of no
adverse modification unless the specific action would affect the
physical or biological features in the adjacent critical habitat.
We have determined that because there are no occupied areas at the
time of listing, unoccupied areas are essential for the conservation of
the species. Accordingly, we have identified two unoccupied units as
critical habitat. As detailed above, additional units will be needed
for recovery, but we cannot currently determine what other areas will
have the best chance of successful species introduction. To consider
for designation areas not occupied by the species at the time of
listing, we must demonstrate that these areas are essential for the
conservation of magnificent ramshorn. Because the species is likely
extirpated from the wild, the only way for the species to be conserved
and have viable populations in the wild is via captive propagation and
reintroduction to unoccupied areas.
Magnificent ramshorn is historically known from four locations, all
of which are ponds/impoundments. Of these four historical locations,
only two meet all of the criteria for designation as critical habitat.
Both Greenfield Lake and McKinzie Pond no longer have suitable habitat
for the species, and would require extensive restoration and threat
[[Page 56483]]
abatement measures before potentially becoming suitable again. Based on
our review, we determined that Orton Pond and Big Pond, the two other
known historical locations for magnificent ramshorn, have the potential
for future reintroduction and reoccupation by the species.
Reestablishing viable populations in those two ponds will provide
redundancy within the historical range and increase the species'
ecological representation. Orton Pond and Big Pond represent habitat
within the historical range with the best potential for recovery of the
species due to current pond conditions, suitability for
reintroductions, compatibility between the landowner's existing habitat
management and the habitat needs of magnificent ramshorn, and landowner
interest in recovery and access for monitoring.
Accordingly, we designate two units as critical habitat for
magnificent ramshorn. Both units contain the identified physical or
biological features, appear to be capable of supporting multiple life-
history processes of the species, and are essential for the
conservation of the species.
The critical habitat designation is defined by the map or maps, as
modified by any accompanying regulatory text, presented at the end of
this document under 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-2022-0070 and on
the Service's website at https://www.fws.gov/office/eastern-north-carolina/library.
Final Critical Habitat Designation
We are designating approximately 739 acres (ac) (299 hectares (ha))
in two units as critical habitat for magnificent ramshorn. The critical
habitat areas we describe below constitute our current best assessment
of areas that meet the definition of critical habitat for magnificent
ramshorn. The two areas designated as critical habitat are: (1) Orton
Pond and (2) Big Pond (Pleasant Oaks Pond). The table below shows the
critical habitat units and the approximate area of each unit.
Table 2--Critical Habitat Units for Magnificent Ramshorn
[Area estimates reflect all land within critical habitat unit boundaries]
----------------------------------------------------------------------------------------------------------------
Size of unit in acres
Critical habitat unit Land ownership by type (hectares) Occupied?
----------------------------------------------------------------------------------------------------------------
1. Orton Pond........................ Private................ 688 ac (278 ha)........ No.
2. Big Pond (Pleasant Oaks Pond)..... Private................ 51 ac (21 ha).......... No.
--------------------------------------------------------------------------
Total............................ ....................... 739 ac (299 ha)........ .......................
----------------------------------------------------------------------------------------------------------------
We present brief descriptions of each unit, and reasons why they
meet the definition of critical habitat for magnificent ramshorn,
below.
Unit 1: Orton Pond
Unit 1, Orton Pond, consists of 688 ac (278 ha) of unoccupied
lentic habitat in an impounded section of Orton Creek in Brunswick
County, North Carolina, approximately \1/2\ mile upstream from its
confluence with the Cape Fear River, located east of the town of
Boiling Spring Lakes. This pond is privately owned and has a
conservation easement along the entire southeastern shore and along the
dam right-of-way. Access to Orton Pond by researchers surveying for
magnificent ramshorn has been restricted since the mid-1990s, and the
species was last observed in this location in 1995. Orton Pond is one
of four known historical locations for the species, and it currently
has extensive suitable habitat for the ramshorn, including sluggish
flows, sufficient littoral depth for emergent aquatic vegetation, and
no salinity. Its management is consistent with magnificent ramshorn's
life requisites. For these reasons, we find that the formerly occupied
Orton Pond is essential for the conservation of the species.
Unit 2: Big Pond (Pleasant Oaks Pond)
Unit 2, Big Pond, consists of 51 ac (21 ha) of unoccupied lentic
habitat in an impounded section of Sand Hill Creek in Brunswick County,
North Carolina, just upstream of the confluence with the Cape Fear
River across from Campbell Island. This pond is privately owned and has
a conservation easement surrounding the entire pond. The species was
last observed in this location in 1994. Big Pond is one of four known
historical locations for the species, and it currently has suitable
habitat for the ramshorn, including sluggish flows and sufficient
littoral depth for emergent aquatic vegetation. Its management is
consistent with magnificent ramshorn's life requisites. For these
reasons, we find that the formerly occupied Big Pond is essential for
the conservation of the species. Because of its proximity to the
upstream saltwater wedge in the Cape Fear River, and the potential for
dam failure during hurricanes, this pond will require permanent
maintenance to prevent effects of saltwater intrusion, and the
landowner has indicated that maintaining the dam to keep freshwater in
the pond is a priority.
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.
We published a final rule revising the definition of destruction or
adverse modification on August 27, 2019 (84 FR 44976). Destruction or
adverse modification means a direct or indirect alteration that
appreciably diminishes the value of critical habitat as a whole for the
conservation of a listed species.
If a Federal action may affect a listed species or its critical
habitat, the responsible Federal agency (action agency) must enter into
consultation with us. Examples of actions that are subject to the
section 7 consultation process are actions on State, Tribal, local, or
private lands that require a Federal permit (such as a permit from the
U.S. Army Corps of Engineers under section 404 of the Clean Water Act
(33 U.S.C. 1251 et seq.) or a permit from the Service under section 10
of the Act) or that involve some other Federal action
[[Page 56484]]
(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. The
reinitiation requirement applies only to actions that remain subject to
some discretionary Federal involvement or control. As provided in 50
CFR 402.16, the requirement to reinitiate consultations for new species
listings or critical habitat designation does not apply to certain
agency actions (e.g., land management plans issued by the Bureau of
Land Management in certain circumstances).
Application of the ``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.
Activities that we may, during a consultation under section 7(a)(2)
of the Act, consider likely to destroy or adversely modify critical
habitat include, but are not limited to:
(1) Actions that would cause physical habitat disturbance. Such
activities could include, but are not limited to, draining, dredging,
channelization, placement of fill, or activities that modify or
compromise the dam structure such that pond habitat quality is
degraded. These activities could eliminate or reduce the habitat
necessary for the conservation of magnificent ramshorn.
(2) Actions that would degrade water quality in tributaries or the
main pond. Such activities could include, but are not limited to,
nonpoint discharges, inputs of dissolved solids or contaminants,
erosion, and sedimentation. These activities could eliminate or greatly
reduce the habitat necessary for the conservation of magnificent
ramshorn.
Exemptions
Application of Section 4(a)(3) of the Act
Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i))
provides that the Secretary shall not designate as critical habitat any
lands or other geographical areas owned or controlled by the Department
of Defense (DoD), or designated for its use, that are subject to an
integrated natural resources management plan (INRMP) prepared under
section 101 of the Sikes Act Improvement Act of 1997 (16 U.S.C. 670a),
if the Secretary determines in writing that such plan provides a
benefit to the species for which critical habitat is proposed for
designation. There are no DoD lands with a completed INRMP within the
critical habitat designation.
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 (2016 Joint Policy; 81 FR 7226, February 11,
2016)--both of which were developed jointly with the National Marine
Fisheries Service (NMFS). We also refer to a 2008 Department of the
Interior Solicitor's opinion entitled, ``The Secretary's Authority to
Exclude Areas from a Critical Habitat Designation under Section 4(b)(2)
of the Endangered Species Act'' (M-37016). We explain each decision to
exclude areas, as well as decisions not to exclude, to demonstrate that
the decision is reasonable.
The Secretary may exclude any particular area if she determines
that the benefits of such exclusion outweigh the benefits of including
such area as part of the critical habitat, unless she determines, based
on the best scientific data available, that the failure to
[[Page 56485]]
designate such area as critical habitat will result in the extinction
of the species. In making the determination to exclude a particular
area, the statute on its face, as well as the legislative history, are
clear that the Secretary has broad discretion regarding which factor(s)
to use and how much weight to give to any factor. In this final rule,
we are not excluding any areas from critical habitat.
Exclusions Based on Economic Impacts
Section 4(b)(2) of the Act and its implementing regulations require
that we consider the economic impact that may result from a designation
of critical habitat. In order to consider economic impacts, we prepared
an incremental effects memorandum (IEM) and screening analysis which,
together with our narrative and interpretation of effects, we consider
our economic analysis of the critical habitat designation and related
factors (IEc 2020, entire). The analysis, dated February 25, 2020, was
made available for public review from August 18 through October 17,
2022 (see 87 FR 50804, August 18, 2022). The economic analysis
addressed probable economic impacts of critical habitat designation for
magnificent ramshorn. Following the close of the comment period, we
reviewed and evaluated all information submitted during the comment
period that may pertain to our consideration of the probable
incremental economic impacts of this critical habitat designation.
Additional information relevant to the probable incremental economic
impacts of critical habitat designation for the magnificent ramshorn is
summarized below and available in the screening analysis for the
magnificent ramshorn (IEc 2020, entire), available at https://www.regulations.gov.
In our IEM, we attempted to clarify the distinction between the
effects that will 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
magnificent ramshorn's critical habitat. Because there are currently no
occupied units, all consultations will be addressing adverse
modification alone. At such time that the species is reintroduced, and
as consultation under the jeopardy standard will focus on the effects
of habitat degradation because threats to the species are habitat-
related, critical habitat designation is not expected to result in
additional consultation in occupied habitat. This evaluation of the
incremental effects has been used as the basis to evaluate the probable
incremental economic impacts of this critical habitat designation.
The critical habitat designation for magnificent ramshorn totals
approximately 739 ac (299 ha), all of which 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. Within the unoccupied critical habitat,
rarely are any actions expected to occur that will result in section 7
consultation or associated project modifications because both units are
privately owned and subject to conservation easements. Therefore,
future activities and associated economic impacts in critical habitat
units are anticipated to be limited. Our analysis estimates that cost
to private entities is expected to be relatively minor (administrative
efforts will cost less than $8,900 per year, and potential incremental
project modifications may cost up to $12,000 per year).
As discussed above, we considered the economic impacts of the
critical habitat designation, and the Secretary is not exercising her
discretion to exclude any areas from this designation of critical
habitat for the magnificent ramshorn based on economic impacts.
Exclusions Based on Other Relevant Impacts
Under section 4(b)(2) of the Act, we consider any other relevant
impacts, in addition to economic impacts and impacts on national
security as 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, SHAs, or CCAAs, or whether there are
non-permitted conservation agreements and partnerships that would be
encouraged by designation of, or exclusion from, critical habitat. In
addition, we look at 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.
We are not excluding any areas from critical habitat. In preparing
this final rule, we have determined that there are currently no HCPs or
other management plans for magnificent ramshorn, and the designation
does not include any Tribal lands or trust resources. We anticipate no
impact on Tribal lands, partnerships, or HCPs from this critical
habitat designation. We did not receive any additional information
during the public comment period for the August 18, 2022, proposed rule
regarding other relevant impacts to support excluding any specific
areas from the critical habitat designation under the authority of
section 4(b)(2) of the Act and our implementing regulations at 50 CFR
424.19, as well as the 2016 Joint Policy. Accordingly, the Secretary is
not exercising her discretion to exclude any areas from this
designation based on other relevant impacts.
Required Determinations
Regulatory Planning and Review (Executive Orders 12866, 13563, and
14094)
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) in the Office of Management and Budget will
review all significant rules. OIRA has determined that this rule is not
significant.
Executive Order 14094 reaffirms the principles of E.O. 12866 and
E.O 13563 and states that regulatory analysis should facilitate agency
efforts to develop regulations that serve the public interest, advance
statutory objectives, and are consistent with E.O. 12866, E.O. 13563,
and the Presidential Memorandum of January 20, 2021 (Modernizing
Regulatory Review). Regulatory analysis, as practicable and
appropriate, shall recognize distributive impacts and equity, to the
extent permitted by law. E.O. 13563 emphasizes further that regulations
must be based on the best available science and that the rulemaking
process must allow for public participation and an open exchange of
ideas. We have developed this rule in a manner consistent with these
requirements.
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
[[Page 56486]]
on a substantial number of small entities. The SBREFA amended the RFA
to require Federal agencies to provide a certification statement of the
factual basis for certifying that the rule will not have a significant
economic impact on a substantial number of small entities.
According to the Small Business Administration, small entities
include small organizations such as independent nonprofit
organizations; small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents; and small businesses (13 CFR 121.201). Small businesses
include manufacturing and mining concerns with fewer than 500
employees, wholesale trade entities with fewer than 100 employees,
retail and service businesses with less than $5 million in annual
sales, general and heavy construction businesses with less than $27.5
million in annual business, special trade contractors doing less than
$11.5 million in annual business, and agricultural businesses with
annual sales less than $750,000. To determine if potential economic
impacts to these small entities are significant, we considered the
types of activities that might trigger regulatory impacts under this
designation as well as types of project modifications that may result.
In general, the term ``significant economic impact'' is meant to apply
to a typical small business firm's business operations.
Under the RFA, as amended, and following 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 will be directly regulated by this
designation. There is no requirement under the RFA to evaluate the
potential impacts to entities not directly regulated. Moreover, Federal
agencies are not small entities. Therefore, because no small entities
will be directly regulated by this rulemaking, we certify that this
critical habitat designation will not have a significant economic
impact on a substantial number of small entities.
During the development of this final rule, we reviewed and
evaluated all information submitted during the comment period on the
August 18, 2022, proposed rule (87 FR 50804) that may pertain to our
consideration of the probable incremental economic impacts of this
critical habitat designation. Based on this information, we affirm our
certification that this critical habitat designation will not have a
significant economic impact on a substantial number of small entities,
and a regulatory flexibility analysis is not required.
Energy Supply, Distribution, or Use--Executive Order 13211
Executive Order 13211 (Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use) requires
agencies to prepare Statements of Energy Effects when undertaking
certain actions. In our economic analysis, we did not find that this
critical habitat designation will significantly affect energy supplies,
distribution, or use because the designated ponds are privately owned.
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 rule will not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute, or regulation
that would impose an enforceable duty upon State, local, or Tribal
governments, or the private sector, and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or Tribal governments'' with two
exceptions. It excludes ``a condition of Federal assistance.'' It also
excludes ``a duty arising from participation in a voluntary Federal
program,'' unless the regulation ``relates to a then-existing Federal
program under which $500,000,000 or more is provided annually to State,
local, and Tribal governments under entitlement authority,'' if the
provision would ``increase the stringency of conditions of assistance''
or ``place caps upon, or otherwise decrease, the Federal Government's
responsibility to provide funding,'' and the State, local, or Tribal
governments ``lack authority'' to adjust accordingly. At the time of
enactment, these entitlement programs were: Medicaid; Aid to Families
with Dependent Children work programs; Child Nutrition; Food Stamps;
Social Services Block Grants; Vocational Rehabilitation State Grants;
Foster Care, Adoption Assistance, and Independent Living; Family
Support Welfare Services; and Child Support Enforcement. ``Federal
private sector mandate'' includes a regulation that ``would impose an
enforceable duty upon the private sector, except (i) a condition of
Federal assistance or (ii) a duty arising from participation in a
voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal Government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions are not likely to destroy or adversely modify
critical habitat under section 7. While non-Federal entities that
receive Federal funding, assistance, or permits, or that otherwise
require approval or authorization from a Federal agency for an action,
may be indirectly impacted by the designation of critical habitat, the
legally binding duty to avoid destruction or adverse modification of
critical habitat rests squarely on the Federal agency. Furthermore, to
the extent that non-Federal entities are indirectly impacted because
they receive Federal assistance or participate in a voluntary Federal
aid program, the Unfunded Mandates Reform Act would not apply, nor
would critical habitat shift the costs of the large entitlement
programs listed above onto State governments.
(2) We do not believe that this rule will significantly or uniquely
affect small governments because only private lands are involved with
the designation. 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 magnificent ramshorn in a takings implications assessment.
The Act does not authorize us to regulate private actions on private
lands or confiscate private property as a result of critical habitat
designation. Designation of
[[Page 56487]]
critical habitat does not affect land ownership, or establish any
closures, or restrictions on use of or access to the designated areas.
Furthermore, the designation of critical habitat does not affect
landowner actions that do not require Federal funding or permits, nor
does it preclude development of habitat conservation programs or
issuance of incidental take permits to permit actions that do require
Federal funding or permits to go forward. However, Federal agencies are
prohibited from carrying out, funding, or authorizing actions that
would destroy or adversely modify critical habitat. A takings
implications assessment has been completed and concludes that this
designation of critical habitat for the magnificent ramshorn does not
pose significant takings implications for lands within or affected by
the designation.
Federalism--Executive Order 13132
In accordance with E.O. 13132 (Federalism), this rule does not have
significant Federalism effects. A federalism 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 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, this final rule does not
have substantial direct effects either on the States, or on the
relationship between the national government and the States, or on the
distribution of powers and responsibilities among the various levels of
government. The designation may have some benefit to these governments
because the areas that contain the features essential to the
conservation of the species are more clearly defined, and the physical
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 will be required. While
non-Federal entities that receive Federal funding, assistance, or
permits, or that otherwise require approval or authorization from a
Federal agency for an action, may be indirectly impacted by the
designation of critical habitat, the legally binding duty to avoid
destruction or adverse modification of critical habitat rests squarely
on the Federal agency.
Civil Justice Reform--Executive Order 12988
In accordance with Executive Order 12988 (Civil Justice Reform),
the Office of the Solicitor has determined that the rule will not
unduly burden the judicial system and that it meets the requirements of
sections 3(a) and 3(b)(2) of the Order. We are designating critical
habitat in accordance with the provisions of the Act. To assist the
public in understanding the habitat needs of the species, this final
rule identifies the physical or biological features essential to the
conservation of the species. The designated areas of critical habitat
are presented on maps, and the rule provides several options for the
interested public to obtain more detailed location information, if
desired.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This rule does not contain 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 recognized Federal
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 to make
information available to Tribes. We have determined that no Tribal
lands fall within the boundaries of the critical habitat designation
for magnificent ramshorn, so no Tribal lands will be affected by the
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 Raleigh Ecological Services Field Office (see FOR FURTHER
INFORMATION CONTACT).
Authors
The primary authors of this final rule are the staff members of the
Fish and Wildlife Service's Species Assessment Team and the Raleigh
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.
Regulation Promulgation
Accordingly, we amend part 17, subchapter B of chapter I, title 50
of the Code of Federal Regulations, as set forth below:
PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless
otherwise noted.
0
2. In Sec. 17.11, in paragraph (h), amend the List of Endangered and
Threatened Wildlife by adding an entry for ``Ramshorn, magnificent'' in
[[Page 56488]]
alphabetical order under SNAILS to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
----------------------------------------------------------------------------------------------------------------
Listing citations and
Common name Scientific name Where listed Status applicable rules
----------------------------------------------------------------------------------------------------------------
* * * * * * *
SNAILS
* * * * * * *
Ramshorn, magnificent........... Planorbella Wherever found.... E 88 [INSERT FEDERAL
magnifica. REGISTER PAGE WHERE
DOCUMENT BEGINS], 8/18/
2023; 50 CFR
17.95(f).\CH\
* * * * * * *
----------------------------------------------------------------------------------------------------------------
0
3. In Sec. 17.95, amend paragraph (f) by adding an entry for
``Magnificent Ramshorn (Planorbella magnifica)'' immediately following
the entry for ``Rough Hornsnail (Pleurocera foremani)'' to read as
follows:
Sec. 17.95 Critical habitat--fish and wildlife.
* * * * *
(f) Clams and Snails.
* * * * *
Magnificent Ramshorn (Planorbella magnifica)
(1) Critical habitat units are depicted for Brunswick County, North
Carolina, on the map in this entry.
(2) Critical habitat does not include humanmade structures (such as
buildings, aqueducts, runways, roads, and other paved areas) and the
land on which they are located existing within the legal boundaries on
September 18, 2023.
(3) Data layers defining map units were created in a Geographic
Information System (GIS), and critical habitat units were mapped using
the U.S. Geological Survey's National Hydrography Dataset. The map in
this entry, as modified by any accompanying regulatory text,
establishes the boundaries of the critical habitat designation. The
coordinates or plot points or both on which the map is based are
available to the public at https://www.regulations.gov at Docket No.
FWS-R4-ES-2022-0070, and at the field office responsible for this
designation. You may obtain field office location information by
contacting one of the Service regional offices, the addresses of which
are listed at 50 CFR 2.2.
(4) Unit 1: Orton Pond; Brunswick County, North Carolina.
(i) Unit 1 consists of 688 acres (ac) (278 hectares (ha)) in an
impounded section of Orton Creek in Brunswick County, North Carolina,
approximately \1/2\ mile upstream from the confluence with the Cape
Fear River and east of the town of Boiling Spring Lakes. Unit 1 is
composed of lands in private ownership.
(ii) Map of Units 1 and 2 follows:
Figure 1 for Magnificent Ramshorn (Planorbella magnifica) paragraph
(4)(ii)
[GRAPHIC] [TIFF OMITTED] TR18AU23.000
[[Page 56489]]
(5) Unit 2: Big Pond (Pleasant Oaks Pond); Brunswick County, North
Carolina.
(i) Unit 2 consists of 51 ac (21 ha) in an impounded section of
Sand Hill Creek in Brunswick County, North Carolina, near the
confluence with the Cape Fear River across from Campbell Island. Unit 2
is composed of lands in private ownership.
(ii) Map of Unit 2 is provided at paragraph (4)(ii) of this entry.
* * * * *
Wendi Weber,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2023-17670 Filed 8-17-23; 8:45 am]
BILLING CODE 4333-15-P