[Federal Register Volume 88, Number 209 (Tuesday, October 31, 2023)]
[Proposed Rules]
[Pages 74390-74400]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-23994]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R4-ES-2023-0171; FF09E21000 FXES1111090FEDR 234]
RIN 1018-BE88
Endangered and Threatened Wildlife and Plants; Endangered Species
Status for Oblong Rocksnail (Leptoxis compacta)
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
list the oblong rocksnail (Leptoxis compacta), a freshwater snail
native to the Cahaba River in Alabama, as an endangered species under
the Endangered Species Act of 1973, as amended (Act). This
determination also serves as our 12-month finding on a petition to list
the oblong rocksnail. After a review of the best available scientific
and commercial information, we find that listing the species is
warranted. If we finalize this rule as proposed, it will add this
species to the List of Endangered and Threatened Wildlife and extend
the Act's protections to the species.
DATES: We will accept comments received or postmarked on or before
January 2, 2024. Comments submitted electronically using the Federal
eRulemaking Portal (see ADDRESSES, below) must be received by 11:59
p.m. eastern time on the closing date. We must receive requests for a
public hearing, in writing, at the address shown in FOR FURTHER
INFORMATION CONTACT by December 15, 2023.
ADDRESSES: Written comments: You may submit comments by one of the
following methods:
(1) Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov. In the Search box, enter FWS-R4-ES-2023-0171,
which is the docket number for this rulemaking. Then, click on the
Search button. On the resulting page, in the panel on the left side of
the screen, under the Document Type heading, check the Proposed Rule
box to locate this document. You may submit a comment by clicking on
``Comment.''
(2) By hard copy: Submit by U.S. mail to: Public Comments
Processing, Attn: FWS-R4-ES-2023-0171, U.S. Fish and Wildlife Service,
MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
We request that you send comments only by the methods described
above. We will post all comments on https://www.regulations.gov. This
generally means that we will post any personal information you provide
us (see Information Requested, below, for more information).
Availability of supporting materials: Supporting materials, such as
the species status assessment report, are available at https://www.fws.gov/office/alabama-ecological-services, at https://ecos.fws.gov/ecp/species/2809, and at https://www.regulations.gov under
Docket No. FWS-R4-ES-2023-0171.
FOR FURTHER INFORMATION CONTACT: Bill Pearson, Field Supervisor,
Alabama Ecological Services Field Office, 1208 Main Street, Daphne, AL
36526; telephone 251-441-5870. 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. In compliance with the
Providing Accountability Through Transparency Act of 2023, please see
Docket No. FWS-R4-ES-2023-0171 on https://
[[Page 74391]]
www.regulations.gov for a document that summarizes this proposed rule.
SUPPLEMENTARY INFORMATION:
Information Requested
We intend that any final action resulting from this proposed rule
will be based on the best scientific and commercial data available and
be as accurate and as effective as possible. Therefore, we request
comments or information from other governmental agencies, Native
American Tribes, the scientific community, industry, or any other
interested parties concerning this proposed rule. We particularly seek
comments concerning:
(1) The species' biology, range, and population trends, including:
(a) Biological or ecological requirements of the species, including
habitat requirements for feeding, breeding, and sheltering;
(b) Genetics and taxonomy;
(c) Historical and current range, including distribution patterns,
and the locations of any additional populations of this species; and
(d) Historical and current population levels, and current and
projected trends.
(2) Threats and conservation actions affecting the species,
including:
(a) Factors that may affect the continued existence of the species,
which may include habitat modification or destruction, overutilization,
disease, predation, the inadequacy of existing regulatory mechanisms,
or other natural or manmade factors.
(b) Biological, commercial trade, or other relevant data concerning
any threats (or lack thereof) to this species.
(c) Existing regulations or conservation actions that may be
addressing threats to the species.
(d) Past and ongoing conservation measures for the species, its
habitat, or both.
(3) Additional information concerning the historical and current
status of this species.
(4) Specific information on:
(a) The amount and distribution of oblong rocksnail habitat;
(b) Any areas occurring within the range of the species in the
Cahaba River watershed that should be included in a critical habitat
designation because they (i) are occupied at the time of listing and
contain the physical or biological features that are essential to the
conservation of the species and that may require special management
considerations or protection, or (ii) are unoccupied at the time of
listing and are essential for the conservation of the species.
Please include sufficient information with your submission (such as
scientific journal articles or other publications) to allow us to
verify any scientific or commercial information you include.
Please note that submissions merely stating support for, or
opposition to, the action under consideration without providing
supporting information, although noted, do not provide substantial
information necessary to support a determination. Section 4(b)(1)(A) of
the Act (16 U.S.C. 1533(b)(1)(A)) directs that determinations as to
whether any species is an endangered or a threatened species must be
made solely on the basis of the best scientific and commercial data
available, and section 4(b)(2) of the Act (16 U.S.C. 1533(b)(2))
directs that the Secretary shall designate critical habitat on the
basis of the best scientific information available.
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in ADDRESSES. We request that you
send comments only by the methods described in ADDRESSES.
If you submit information via https://www.regulations.gov, your
entire submission--including any personal identifying information--will
be posted on the website. If your submission is made via a hardcopy
that includes personal identifying information, you may request at the
top of your document that we withhold this information from public
review. However, we cannot guarantee that we will be able to do so. We
will post all hardcopy submissions on https://www.regulations.gov.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection on https://www.regulations.gov.
Our final determination may differ from this proposal because we
will consider all comments we receive during the comment period as well
as any new information that may become available after this proposal
publishes. Based on the new information we receive (and, if relevant,
any comments on that new information), we may conclude that the species
is threatened instead of endangered, or we may conclude that the
species does not warrant listing as either an endangered species or a
threatened species. In our final rule, we will clearly explain our
rationale and the basis for our final decision, including why we made
changes, if any, that differ from this proposal.
Public Hearing
Section 4(b)(5) (16 U.S.C. 1533(b)(5)) of the Act provides for a
public hearing on this proposal, if requested. Requests must be
received by the date specified in DATES. Such requests must be sent to
the address shown in FOR FURTHER INFORMATION CONTACT. We will schedule
a public hearing on this proposal, if requested, and announce the date,
time, and place of the hearing, as well as how to obtain reasonable
accommodations, in the Federal Register and local newspapers at least
15 days before the hearing. We may hold the public hearing in person or
virtually via webinar. We will announce any public hearing on our
website, in addition to the Federal Register. The use of virtual public
hearings is consistent with our regulations at 50 CFR 424.16(c)(3).
Previous Federal Actions
On June 21, 2016, we were petitioned by the Center for Biological
Diversity and The Cahaba Riverkeeper to list the oblong rocksnail. On
December 20, 2017, we published in the Federal Register (82 FR 60362)
our determination that the petition presented substantial information
indicating that listing may be warranted. This proposed rule
constitutes our 12-month finding on that petition.
Peer Review
A species status assessment (SSA) team prepared an SSA report for
the oblong rocksnail (Service 2022, entire). The SSA team was composed
of Service biologists, and the report was prepared in consultation with
species experts. The SSA report represents a compilation of the best
scientific and commercial data available concerning the status of the
species, including the impacts of past, present, and future factors
(both negative and beneficial) affecting the species.
In accordance with our joint policy on peer review published in the
Federal Register on July 1, 1994 (59 FR 34270), and our August 22,
2016, memorandum updating and clarifying the role of peer review of
listing actions under the Act (16 U.S.C. 1531 et seq.), we solicited
independent scientific review of the information contained in the
oblong rocksnail SSA report. We sent the SSA report to six independent
peer reviewers and received two responses. Results of this structured
peer review process can be found at https://www.regulations.gov. In
preparing this proposed rule, we incorporated the results of these
reviews, as appropriate, into the SSA report, which is the foundation
for this proposed rule.
Summary of Peer Reviewer Comments
As discussed in Peer Review above, we received comments from two
peer reviewers on the draft SSA report. We
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reviewed all comments received from the peer reviewers for substantive
issues and new information regarding the contents of the SSA report.
The peer reviewers generally concurred with our methods and
conclusions, and provided additional information, clarifications, and
suggestions, including clarifications in terminology and other
editorial suggestions. We revised the SSA report to include information
provided by reviewers about recent oil spill occurrences within the
oblong rocksnail's range. Otherwise, no substantive changes to our
analysis and conclusions within the SSA report were deemed necessary,
and peer reviewer comments are addressed in version 1.0 of the SSA
report.
I. Proposed Listing Determination
Background
A thorough review of the taxonomy, life history, and ecology of the
oblong rocksnail (Leptoxis compacta) is presented in the SSA report
(version 1.0; Service 2022, pp. 1-4).
The oblong rocksnail is a non-air-breathing, freshwater pleurocerid
snail native to the Cahaba River, near Birmingham, Alabama. Oblong
rocksnails are grazers and occur on large slabs and bedrock, typically
toward the middle of the river. These large flat rocks provide the
substrate on which periphyton (algae attached to hard surfaces), which
the rocksnail uses for food, can grow (Miller-Way and Way 1989, p. 193;
Johnson et al. 2013, p. 248). In general, periphyton availability,
substrate composition, and water velocity are important components in
determining habitat suitability of pleurocerid snails (Stewart and
Garcia 2002, p. 178). Periphyton, which contains higher concentrations
of limiting nutrients like nitrogen than other food sources, is more
easily scraped from hard substrates by rocksnails (White 1978, pp. 73-
74; McMahon et al. 1974, p. 392; Brown 2001, p. 305).
Pleurocerid snails are dioecious (i.e., have separate sexes) and
generally reach sexual maturity in the wild after 1 or 2 years
(Aldridge 1982, p. 197; Whelan 2013, p. 73). Observations of wild
Leptoxis snails indicate that eggs are often laid on vertical surfaces
or undersides of rocks without siltation or much vegetation (Whelan et
al. 2015, p. 88). Warming temperatures in spring (April-May) appear to
serve as a cue to begin and end egg laying; oviposition in laboratory
conditions ceased when the daily maximum water temperature reached 29
degrees Celsius (84 degrees Fahrenheit) (Whelan et al. 2012, p. 3).
Pleurocerid snails live between 2 and 6 years, depending on the
species, but the specific lifespan is not known for the oblong
rocksnail (Whelan 2013, p. 73).
The species was declared extinct in 2000 (Neves et al. 1997, p. 62;
Turgeon et al. 1998, p. 65; Bogan 2000, entire), as it had not been
seen in more than 70 years despite repeated surveys (Whelan et al.
2012, p. 1), but was rediscovered in 2011 (Whelan et al. 2012, entire).
The best available information indicates that the oblong rocksnail
currently occupies approximately 11 percent of its known historical
range in the Cahaba River. The species has been extirpated from 44.4
river miles (71.5 kilometers (km)) and is currently found at only a few
sites along 5.6 river miles (9 km) of the Cahaba River from Old Marvel
Slab upstream to Booth's Ford (Wright et al. 2020, p. 6). Additional
survey efforts have failed to locate the species at other sites within
the historical range. The sites where the species is currently found
are all above the Fall Line, which divides the Piedmont from the
Coastal Plain. Due to higher gradients, streams above the Fall Line are
generally swift and have rock substrates, while streams below the Fall
Line are generally slower, have soft substrates, and have lower
gradients (Cahaba River Basin Clean Water Partnership (CRBCWP) 2013, p.
11). The oblong rocksnail's currently occupied range is restricted to
the lower range of suitable habitat before the habitat changes at the
Fall Line.
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 species' expected response and
the effects of the threats--in light of those actions and conditions
that will ameliorate the threats--on an individual, population, and
species level. We evaluate each threat and its expected effects on the
species, then analyze the cumulative effect of all of the threats on
the species as a whole. We also consider the cumulative effect of the
threats in light of those actions and conditions that will have
positive effects on the species, such as any
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existing regulatory mechanisms or conservation efforts. The Secretary
determines whether the species meets the definition of an ``endangered
species'' or a ``threatened species'' only after conducting this
cumulative analysis and describing the expected effect on the species
now and in the foreseeable future.
The Act does not define the term ``foreseeable future,'' which
appears in the statutory definition of ``threatened species.'' Our
implementing regulations at 50 CFR 424.11(d) set forth a framework for
evaluating the foreseeable future on a case-by-case basis. The term
``foreseeable future'' extends only so far into the future as we can
reasonably determine that both the future threats and the species'
responses to those threats are likely. In other words, the foreseeable
future is the period of time in which we can make reliable predictions.
``Reliable'' does not mean ``certain''; it means sufficient to provide
a reasonable degree of confidence in the prediction. Thus, a prediction
is reliable if it is reasonable to depend on it when making decisions.
It is not always possible or necessary to define the foreseeable
future as a particular number of years. Analysis of the foreseeable
future uses the best scientific and commercial data available and
should consider the timeframes applicable to the relevant threats and
to the species' likely responses to those threats in view of its life-
history characteristics. Data that are typically relevant to assessing
the species' biological response include species-specific factors such
as lifespan, reproductive rates or productivity, certain behaviors, and
other demographic factors.
Analytical Framework
The SSA report documents the results of our comprehensive
biological review of the best scientific and commercial data regarding
the status of the species, including an assessment of the potential
threats to the species. The SSA report does not represent our decision
on whether the species should be proposed for listing as an endangered
or threatened species under the Act. However, it does provide the
scientific basis that informs our regulatory decisions, which involve
the further application of standards within the Act and its
implementing regulations and policies.
To assess oblong rocksnail viability, we used the three
conservation biology principles of resiliency, redundancy, and
representation (Shaffer and Stein 2000, pp. 306-310). Briefly,
resiliency is the ability of the species to withstand environmental and
demographic stochasticity (for example, wet or dry, warm or cold
years); redundancy is the ability of the species to withstand
catastrophic events (for example, droughts, large pollution events);
and representation is the ability of the species to adapt to both near-
term and long-term changes in its physical and biological environment
(for example, climate conditions, pathogens). In general, species
viability will increase with increases in resiliency, redundancy, and
representation (Smith et al. 2018, p. 306). Using these principles, we
identified the species' ecological requirements for survival and
reproduction at the individual, population, and species levels, and
described the beneficial and risk factors influencing the species'
viability.
The SSA process can be categorized into three sequential stages.
During the first stage, we evaluated the individual species' life-
history needs. The next stage involved an assessment of the historical
and current condition of the species' demographics and habitat
characteristics, including an explanation of how the species arrived at
its current condition. The final stage of the SSA involved making
predictions about the species' responses to positive and negative
environmental and anthropogenic influences. Throughout all of these
stages, we used the best available information to characterize
viability as the ability of a species to sustain populations in the
wild over time. We then used 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 FWS-R4-ES-
2023-0171 on https://www.regulations.gov.
Summary of Biological Status and Threats
In this discussion, we review the biological condition of the
species and its resources, and the threats that influence the species'
current and future condition, in order to assess the species' overall
viability and the risks to that viability. We analyze these factors
both individually and cumulatively to determine the current condition
of the species and project the future condition of the species under
several plausible future scenarios.
Species Needs
Oblong rocksnails need large, flat boulders and bedrock for feeding
and reproduction. The river channel should be relatively free of fine
sediment and with flows sufficient to maintain clean-swept rock
surfaces for attachment, egg-laying, and periphyton growth. Pleurocerid
snails, as a group, are sensitive to changes in water quality
parameters such as sodium chloride (salt), potassium, nickel, zinc, and
pollutants. Streams that have minimal levels of these constituents are
considered suitable, while those habitats with levels outside of the
appropriate ranges are considered less suitable. Further, nutrient
enrichment needs to remain low enough not to result in algal blooms,
which can create a toxic cycle that decreases oxygen and food resources
for snails. For further information about life stages and resource
needs, see chapter 2 of the SSA report (Service 2022, pp. 3-4).
For the oblong rocksnail to maintain viability, it must be able to
withstand and bounce back from both stochastic events (resiliency) and
catastrophic events (redundancy), as well as adapt to changing
environmental conditions (representation). Snail abundance must be
sufficient for genetic diversity to be maintained and for the overall
population in the stream reach to recover from stochastic events.
Abundance should be stable or increasing for populations to be
resilient. Surveys to date have not estimated numbers of oblong
rocksnails; however, the species appears to be abundant within the
presently occupied reach within the Cahaba River mainstem, except at
the northernmost site where numbers are low (Wright et al. 2020,
entire). A resilient population of oblong rocksnails must be
reproducing and recruiting young individuals into the population. We
have no data on reproduction or recruitment of the extant population
but based on the short (approximately 2-6 years) probable lifespan of
rocksnails, we assume that presence of snails at locations where it has
been detected in the recent past indicates recruitment is occurring
within the population.
For redundancy, the oblong rocksnail needs to occupy sufficient
stream length and in enough tributaries such that stochastic and
catastrophic events that could affect the population in the mainstem do
not eliminate the entire population of the species. Occupying branches
of a river network (dendritic networking) increases habitat diversity
and allows the species to repopulate from those tributaries should a
spill, flood, drought, or other catastrophic event create unsuitable
habitat conditions in the Cahaba mainstem. Because the currently
occupied reach is relatively short and only within the mainstem,
increasing the complexity of the occupied area will increase redundancy
by preventing the oblong
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rocksnail from being eliminated by a single catastrophic event.
Influences on Viability
Water Quality Impairment
Water quality impairment for the oblong rocksnail occurs when there
are adverse changes in water quality parameters, as well as impacts
from contaminants and sedimentation, and catastrophic spills. Water
quality in the Cahaba River has been and is currently affected by point
and nonpoint sources, and these sources may be chronic or catastrophic
in nature. Nonpoint sources of water quality impairment for the Cahaba
River include urban runoff from the metropolitan area of Birmingham and
stormwater runoff from roads and agricultural activities. Point sources
include industrial sources and municipal effluents. Point source
discharges and land surface runoff (nonpoint pollution) can cause
nutrification, decreased dissolved oxygen (DO) concentrations,
increased acidity and conductivity, and other changes in water
chemistry that are known to impact aquatic snails such as the oblong
rocksnail (Gibson et al. 2016, pp. 1, 32-34; Gibson et al. 2018, pp.
239, 247, 249). Oblong rocksnails are sensitive to water quality
impairment as they breathe via gills, which may allow toxicants in the
water to be readily absorbed (Gibson et al. 2018, p. 251). They also
need high oxygen in the water to breathe, so reduced DO levels will
affect respiration and overall snail condition. Increased acidity and
conductivity can affect shell production and maintenance. It is
difficult for the oblong rocksnail to move large distances; thus, the
species is not able to survive stochastic or catastrophic water quality
events by moving to an unimpaired location.
Contaminants
The upper Cahaba River is home to municipal wastewater facilities,
industrial facilities, and coal mines which contribute contaminants,
including metals, hydrocarbons, pesticides, and other potentially
harmful organic and inorganic compounds to the stream. These chemical
contaminants contribute significantly to the current declining status
of freshwater mollusk (like the oblong rocksnail) species nationwide
(Augspurger et al. 2007, p. 2025), and within the Cahaba River (Wright
et al. 2020, p. 2).
In Alabama, chloride is a common chemical used in oil and gas
production, pesticide application, wastewater treatment plant effluent,
urban runoff, and mining (Gibson et al. 2018, p. 240). Studies of the
toxicity of chloride revealed that a sister species of the oblong
rocksnail, the round rocksnail (Leptoxis ampla), exhibited sensitivity
to chloride at concentrations 250 times less than current criteria set
by the U.S. Environmental Protection Agency (EPA), and at lower-than-
average background levels in almost all watersheds in Alabama,
including the Cahaba River watershed (Gibson et al. 2018, p. 247).
Thus, the current EPA water quality criterion for chloride may not be
sufficient for the survival of the oblong rocksnail. Further, the round
rocksnail was the most sensitive mollusk species tested, likely
indicating species in the genus Leptoxis are more sensitive overall to
contaminants. Rocksnails are also sensitive to potassium, nickel, zinc,
and sodium dodecyl sulfate (a common surfactant in household
detergents), and several of these chemicals do not have regulated
standards (Wang et al. 2013, entire; Gibson et al. 2016, p. 30; Wang et
al. 2017, p. 786; Gibson et al. 2018, pp. 249-250).
There are six large municipal wastewater treatment plants in the
upper Cahaba River drainage, several with documented elevated ammonia
levels (EPA 2002, p. 35). Mollusks are also highly sensitive to ammonia
(Augspurger et al. 2003, p. 2569), and non-pulmonate snails, like the
oblong rocksnail, have been shown to be extremely sensitive to ammonia
because they readily absorb it from the water via their gills (EPA
2013, p. 56; Besser et al. 2016, p. 33). The State of Alabama has not
yet adopted EPA's ammonia criteria that are protective of the needs of
these mollusks (EPA 2013, p. 67; Haslbauer 2020, pers. comm.).
Sedimentation
The upper Cahaba River watershed, which drains a large part of
Birmingham, is rapidly urbanizing; between 1992 and 2011, urban cover
has increased from 9.4 percent to 35.7 percent due to expansion of the
metropolitan area (Dosdogru et al. 2020, p. 2). Sources of
sedimentation include, but are not limited to, several aspects of
urbanization: deforestation, road maintenance, impoundments, and
impervious surfaces (EPA 2021, unpaginated).
Excessive sediments are believed to impact riverine snails
requiring clean, hard shoal stream and river bottoms by making the
habitat unsuitable for feeding or reproduction. In 2002, the EPA
reported on the Cahaba River: ``Because of excessive sedimentation,
habitat evaluation scores in the middle reach were affected and fell
into the suboptimal to marginal range. Quite apparent is the filling of
crevices or spaces between the natural rock substrates by sediments
thus affecting both fish and benthic macroinvertebrates'' (EPA 2002, p.
31). The middle reach of the Cahaba River is also where snails were
most abundant when the EPA (2002, pp. 19-20) conducted eight different
studies in the Cahaba River in spring 2002. Impacts from decades of
excessive sedimentation deteriorated oblong rocksnail habitat such that
it is currently confined to only a small portion of the Cahaba River.
These impacts from sedimentation affect oblong rocksnail food sources
by abrading or suffocating periphyton attached to underwater surfaces.
Sedimentation also affects snail respiration, growth, reproductive
success, and survival (Waters 1995, pp. 5-7, 74-78, 79-118).
Catastrophic Spills
Coalbed methane extraction in the watershed results in saline
production-water that historically was discharged directly to receiving
channels of the Cahaba River. Saline waters are toxic to snails,
including the oblong rocksnail. While coalbed methane wells are common
in the Cahaba River basin, there were approximately 400 wells in 2008
(EPA 2011, pp. 3-22), at present no discharges of this type go directly
to the Cahaba (O'Neil 2021, pers. comm.). It is anticipated that future
discharges of this type would require a permit to ensure integrity of
the Cahaba. It is still possible a spill could occur from these
sources; however, the probability of such an event, and its volume and
nature, are unknown at this time. Pipelines remain one of the safest
ways to transport fuel in the United States with a very low failure
rate (Belvederesi et al. 2018, p. 1), and the majority of spills are
small (National Oceanic and Atmospheric Administration (NOAA) 2020,
entire). Despite all of this, spills do occur along pipelines and can
have significant environmental consequences to waterways, wildlife, and
people (Belvederesi et al. 2018, p. 1).
Two major oil and gas transmission lines cross the Cahaba River and
its tributaries at several points ranging from 2.2 to 11 miles (3.7 to
18 km) above known oblong rocksnail locations. The area around the
Cahaba River is considered a high consequence area (HCA) (Pipeline and
Hazardous Material Safety Administration (PHMSA) 2021b, p. 5). These
HCAs are designated areas where a release could have significant
adverse consequences, in this case to highly sensitive ecological areas
[[Page 74395]]
(Belvederesi et al. 2018, p. 6), and the HCA designation confers
additional oversight by the U.S. Department of Transportation's PHMSA
to ensure integrity of pipelines in these areas.
Of the 11 counties crossed by these major pipelines in the State of
Alabama, 5 counties have experienced oil spills associated with these
pipelines or their infrastructure since 2005; these spills ranged in
size from 3 to upwards of 7,000 barrels (125 to 293,999 gallons). The
largest spill in Shelby County occurred in 2016 within a mile (<=1.6
km) of the Cahaba River upstream of the occupied area. Fortunately for
the oblong rocksnail and the Cahaba River ecosystem, the spill was
diverted to a retention pond and did not reach the portion of the river
where the oblong rocksnail occurs (Birmingham Watch 2016, p. 1).
Climate Change
We examined climate change on the Cahaba River through 2050, as
detailed by Dosdogru et al. (2020, entire). Overall, the study
projected more potential for flood and drought events (extreme weather
events). Increasing summer temperatures lead to high stream
evapotranspiration rates and thus lower overall flows, which reduce
dissolved oxygen needed for oblong rocksnail respiration and metabolic
activity. High flows during storm events increase soil erosion and
muddy stream flows (Dosdogru et al. 2020, p. 14), increasing
sedimentation and associated impacts to rocksnails. During droughts,
nearly all the flow of the Cahaba River can disappear, leaving snails
exposed. During drought events, nearly all the flow of the Cahaba River
is removed at the Birmingham water intake and only a portion is
returned downstream as treated wastewater (Service 2013, p. 2),
exposing oblong rocksnails to higher concentrations of potentially
harmful chemicals (see ``Contaminants,'' above). Furthermore,
developmental cues, rates of egg development, and juvenile growth are
all strongly impacted by temperature regimes (Olden and Naiman 2010, p.
90), and projected increases in temperature can impact successful
oblong rocksnail reproduction.
Based on adaptive capacity attributes identified using the approach
described by Thurman et al. (2020, entire), oblong rocksnail cannot
move large distances when conditions become unfavorable (e.g., when
water quality deteriorates, or the system experiences drought or
flooding), given its limited dispersal ability and reliance on chance
events to carry dispersers downstream. Flashy flows from flooding storm
events may present opportunities that carry individuals to other
downstream sites, but they could also carry them beyond the small reach
of currently suitable habitat to unsuitable habitat below the Fall
Line. Prolonged droughts can lower the water levels such that wetted
habitat becomes limited or disappears, leaving the non-air-breathing
oblong rocksnail unable to escape these conditions and prone to
exposure to contaminants or desiccation.
Current Condition
We note that, by using the SSA framework to guide our analysis of
the scientific information documented in the SSA report, we have
analyzed the cumulative effect of identified threats and conservation
actions on the species. To assess the current and future condition of
the species, we evaluated 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 effect of the
factors and replaces a standalone cumulative-effects analysis. Below,
we describe the 3Rs--resiliency, representation, and redundancy--as
they relate to oblong rocksnail viability.
Resiliency
The resiliency, or ability of the extant oblong rocksnail
population to withstand stochastic events, was determined by analyzing
three population factors (abundance, reproduction/recruitment, and
occupied stream length/complexity) and two habitat factors (substrate
and flowing water, and water quality). These factors are described
below.
Abundance
While there are no numeric abundance estimates for the oblong
rocksnail, we assume that because the population is detectable at
multiple sites along 5.6 miles (approximately 9 km) of the Cahaba
River, we consider the species locally abundant wherever it occurs.
Reproduction and Recruitment
We assume that the recent detections of oblong rocksnail at
occupied sites indicates recruitment is currently occurring within the
population.
Occupied Stream Length/Stream Complexity
The oblong rocksnail currently occupies 5.6 miles (approximately 9
km) of the historical 44.4 miles (71.5 km) of the Cahaba River and is
not known to occupy any tributaries. This limited occupied area and
lack of stream complexity could make the species more susceptible to
stochastic and catastrophic events.
Substrate and Flowing Water
The oblong rocksnail occupies a reach of the Cahaba River that is
downstream of the confluence with several large tributaries. Currently,
the volume and flow of water in this reach is sufficient to maintain
clean-swept hard surfaces in the main channel of the Cahaba River and
support periphyton, such that the oblong rocksnail can attach, feed,
and lay eggs, thus supporting oblong rocksnail persistence.
Water Quality
Past water quality issues affected oblong rocksnail habitat such
that it was once thought extinct. However, over the past 30 years, the
Cahaba River's water quality has improved in the range of the oblong
rocksnail. The Clean Water Act (33 U.S.C. 1251 et seq.) imposed water
quality standards and reduced contaminants from urban runoff,
industrial facilities, and municipal wastewater, which has resulted in
suitable water quality in the currently occupied reach. At present, the
Cahaba River's water quality appears sufficient to support known sites.
Representation
The oblong rocksnail has limited representation, as it is only
found in one population with limited overall genetic diversity. The
loss of genetic variation due to its range contraction may have
negatively impacted its long-term survival and overall adaptive
capacity (Wright et al. 2020, p. 10). Evidence suggests the oblong
rocksnail has lost genetic diversity through both bottleneck and
genetic drift (Wright et al. 2020, p. 12). Genetic diversity is
increased at downstream sites (Whelan et al. 2019, p. 1593),
facilitated by much greater downstream movement than upstream movement
(Redak et al. 2021, p. 643). This downstream-biased movement, coupled
with a lack of suitable habitat upstream, has resulted in a decline of
genetic diversity at upstream sites despite the recent discovery of the
species at multiple sites and a slightly expanded known distribution
for the species.
Redundancy
The oblong rocksnail has limited to no redundancy. While the
species is represented by only one population in one small river reach,
oblong rocksnail
[[Page 74396]]
can be found at multiple sites within the singular population. These
sites serve as ``internal redundancy'' within a singular population
that could provide some ability to respond to stochastic events;
however, because all sites occupied are linear in one stretch of the
Cahaba River, it is possible that a catastrophic event could impact the
entire population.
Future Conditions
As part of the SSA analysis, we developed three future-condition
scenarios to capture the range of uncertainties regarding future
threats and the projected responses by the oblong rocksnail. Our
scenarios examined changes in urbanization and climate change,
potential mitigation of urbanization and climate impacts by an existing
management program, and the potential of a catastrophic oil spill to
the species. Because we determined that the current condition of the
oblong rocksnail is consistent with an endangered species (see
Determination of Oblong Rocksnail's Status, below), we are not
presenting the results of the future scenarios in this proposed rule.
Please refer to the SSA report (Service 2021, pp. 28-34) for the full
analysis of future scenarios.
Conservation Efforts and Regulatory Mechanisms
Reintroduction efforts for the oblong rocksnail are underway with
the Alabama Department of Conservation and Natural Resources (ADCNR)
(ADCNR 2021, entire). During a survey in the historical Belle Ellen
shoal complex in May 2019, several federally listed species were
located, but the oblong rocksnail was not (ADCNR 2021, p. 2). Although
a targeted survey in October 2020 again did not locate the oblong
rocksnail, ADCNR and Service personnel agreed to consider the site for
future reintroduction efforts (ADCNR 2021, p. 2). Culture efforts, as a
part of reintroduction efforts, began in 2020 (ADCNR 2021, p. 3). A
total of 220 oblong rocksnail brood stock were collected from a shoal
adjacent to the Living River complex on the Cahaba River and brought
back to the Alabama Aquatic Biodiversity Center (ADCNR 2021, p. 3).
After an 11-month effort, a total of 544 juvenile and 201 brood stock
snails were released adjacent to the right-descending bank at the Belle
Ellen shoal (ADCNR 2021, p. 3). Future plans also include the
collection of more brood stock for additional culturing, evaluation of
additional oblong rocksnail reintroduction sites in lower Buck Creek
and lower Little Cahaba River, and a comprehensive reintroduction plan
encompassing all approved reintroduction sites for the oblong rocksnail
(ADCNR 2021, p. 3).
Determination of Oblong Rocksnail'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 an endangered
species or a threatened species because of any of the following
factors: (A) The present or threatened destruction, modification, or
curtailment of its habitat or range; (B) overutilization for
commercial, recreational, scientific, or educational purposes; (C)
disease or predation; (D) the inadequacy of existing regulatory
mechanisms; or (E) other natural or manmade factors affecting its
continued existence.
Status Throughout All of Its Range
The oblong rocksnail is a local endemic in the Cahaba River system
of Alabama. The species once occupied approximately 50 miles of the
river and was thought extinct before it was rediscovered in 2011. The
species currently occupies only a 5.6-mile (approximately 9-km) reach
in the Cahaba River. There are no abundance estimates, but the oblong
rocksnail is considered locally abundant where it occurs. Recruitment
is presumed to be occurring in the occupied habitat. Current threats to
the species include typical threats to aquatic species: water quality
impairment, including sedimentation and contaminants from urbanization
and habitat alteration (Factor A). The species' current distribution
lacks dendritic networking; it is in a single reach of the mainstem
river, and there is no ability for natural rescue if the main channel
populations are lost when faced with a catastrophic event, such as a
toxic spill or extreme weather event (flood or drought) (Factor E).
After evaluating threats to the species and assessing the
cumulative effect of the threats under the Act's section 4(a)(1)
factors, we determine that the oblong rocksnail is affected by water
quality impairment, including sedimentation, and potential catastrophic
spills. The current threats to the oblong rocksnail present a high risk
of extinction to the species, which occupies only about 11 percent of
its historical range. This species has low resiliency; it is located in
one stream reach, although it is locally abundant there. It has limited
to no redundancy, with occupied sites in one linear population offering
little ability to rebound from a catastrophic event, and it has low
representation due to lost genetic diversity through bottleneck and
subsequent genetic drift. Thus, after assessing the best available
information, we determine that oblong rocksnail 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 oblong rocksnail is in danger
of extinction throughout all of its range and accordingly did not
undertake an analysis of any significant portion of its range. Because
the oblong rocksnail warrants listing as endangered throughout all of
its range, our determination is consistent with the decision in Center
for Biological Diversity v. Everson, 2020 WL 437289 (D.D.C. Jan. 28,
2020), in which the court vacated the aspect of the Final Policy on
Interpretation of the Phrase ``Significant Portion of Its Range'' in
the Endangered Species Act's Definitions of ``Endangered Species'' and
``Threatened Species'' (79 FR 37578; July 1, 2014) that provided the
Service does not undertake an analysis of significant portions of a
species' range if the species warrants listing as threatened throughout
all of its range.
Determination of Status
Our review of the best available scientific and commercial
information indicates that the oblong rocksnail meets the Act's
definition of an endangered species. Therefore, we propose to list the
oblong rocksnail 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
[[Page 74397]]
through listing results in public awareness, and conservation by
Federal, State, Tribal, and local agencies, private organizations, and
individuals. The Act encourages cooperation with the States and other
countries and calls for recovery actions to be carried out for listed
species. The protection required by Federal agencies, including the
Service, and the prohibitions against certain activities are discussed,
in part, below.
The primary purpose of the Act is the conservation of endangered
and threatened species and the ecosystems upon which they depend. The
ultimate goal of such conservation efforts is the recovery of these
listed species, so that they no longer need the protective measures of
the Act. Section 4(f) of the Act calls for the Service to develop and
implement recovery plans for the conservation of endangered and
threatened species. The goal of this process is to restore listed
species to a point where they are secure, self-sustaining, and
functioning components of their ecosystems.
The recovery planning process begins with development of a recovery
outline made available to the public soon after a final listing
determination. The recovery outline guides the immediate implementation
of urgent recovery actions while a recovery plan is being developed.
Recovery teams (composed of species experts, Federal and State
agencies, nongovernmental organizations, and stakeholders) may be
established to develop and implement recovery plans. The recovery
planning process involves the identification of actions that are
necessary to halt and reverse the species' decline by addressing the
threats to its survival and recovery. The recovery plan identifies
recovery criteria for review of when a species may be ready for
reclassification from endangered to threatened (``downlisting'') or
removal from protected status (``delisting''), and methods for
monitoring recovery progress. Recovery plans also establish a framework
for agencies to coordinate their recovery efforts and provide estimates
of the cost of implementing recovery tasks. Revisions of the plan may
be done to address continuing or new threats to the species, as new
substantive information becomes available. The recovery outline, draft
recovery plan, final recovery plan, and any revisions will be available
on our website as they are completed (https://www.fws.gov/program/endangered-species), or from our Alabama Ecological Services Field
Office (see FOR FURTHER INFORMATION CONTACT).
Implementation of recovery actions generally requires the
participation of a broad range of partners, including other Federal
agencies, States, Tribes, nongovernmental organizations, businesses,
and private landowners. Examples of recovery actions include habitat
restoration (e.g., restoration of native vegetation), research, captive
propagation and reintroduction, and outreach and education. The
recovery of many listed species cannot be accomplished solely on
Federal lands because their range may occur primarily or solely on non-
Federal lands. To achieve recovery of these species requires
cooperative conservation efforts on private, State, and Tribal lands.
If this species is listed, funding for recovery actions will be
available from a variety of sources, including Federal budgets, State
programs, and cost-share grants for non-Federal landowners, the
academic community, and nongovernmental organizations. In addition,
pursuant to section 6 of the Act, the State of Alabama would be
eligible for Federal funds to implement management actions that promote
the protection or recovery of the oblong rocksnail. Information on our
grant programs that are available to aid species recovery can be found
at: https://www.fws.gov/service/financial-assistance.
Although the oblong rocksnail is only proposed for listing under
the Act at this time, please let us know if you are interested in
participating in recovery efforts for this species. Additionally, we
invite you to submit any new information on this species whenever it
becomes available and any information you may have for recovery
planning purposes (see FOR FURTHER INFORMATION CONTACT).
Section 7 of the Act is titled, ``Interagency Cooperation'' and
mandates all Federal action agencies to use their existing authorities
to further the conservation purposes of the Act and to ensure that
their actions are not likely to jeopardize the continued existence of
listed species or adversely modify critical habitat. Regulations
implementing section 7 are codified at 50 CFR part 402.
Section 7(a)(2) states that each Federal action agency shall, in
consultation with the Secretary, ensure that any action they authorize,
fund, or carry out is not likely to jeopardize the continued existence
of a listed species or result in the destruction or adverse
modification of designated critical habitat. Each Federal agency shall
review its action at the earliest possible time to determine whether it
may affect listed species or critical habitat. If a determination is
made that the action may affect listed species or critical habitat,
formal consultation is required (50 CFR 402.14(a)), unless the Service
concurs in writing that the action is not likely to adversely affect
listed species or critical habitat. At the end of a formal
consultation, the Service issues a biological opinion, containing its
determination of whether the Federal action is likely to result in
jeopardy or adverse modification.
In contrast, section 7(a)(4) of the Act requires Federal agencies
to confer with the Service on any action which is likely to jeopardize
the continued existence of any species proposed to be listed under the
Act or result in the destruction or adverse modification of critical
habitat proposed to be designated for such species. Although the
conference procedures are required only when an action is likely to
result in jeopardy or adverse modification, action agencies may
voluntarily confer with the Service on actions that may affect species
proposed for listing or critical habitat proposed to be designated. In
the event that the subject species is listed or the relevant critical
habitat is designated, a conference opinion may be adopted as a
biological opinion and serve as compliance with section 7(a)(2) of the
Act.
Examples of discretionary actions for the oblong rocksnail that may
be subject to conference and consultation procedures under section 7
are actions on State, Tribal, local, or private lands that require a
Federal permit (such as a permit from the U.S. Army Corps of Engineers
under section 404 of the Clean Water Act (33 U.S.C. 1251 et seq.) or a
permit from the Service under section 10 of the Act) or that involve
some other Federal action (such as funding from the Federal Highway
Administration, Federal Aviation Administration, or the Federal
Emergency Management Agency). Federal actions not affecting listed
species or critical habitat--and actions on State, Tribal, local, or
private lands that are not federally funded, authorized, or carried out
by a Federal agency--do not require section 7 consultation. Federal
agencies should coordinate with the local Service Field Office (see FOR
FURTHER INFORMATION CONTACT) with any specific questions on section 7
consultation and conference requirements.
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
[[Page 74398]]
United States to commit, to attempt to commit, to solicit another to
commit or to cause to be committed any of the following: (1) import
endangered wildlife into, or export such wildlife from, the United
States; (2) take (which includes harass, harm, pursue, hunt, shoot,
wound, kill, trap, capture, or collect, or to attempt to engage in any
such conduct) endangered wildlife within the United States or on the
high seas; (3) possess, sell, deliver, carry, transport, or ship, by
any means whatsoever, any such wildlife that has been taken illegally;
(4) deliver, receive, carry, transport, or ship in interstate or
foreign commerce in the course of commercial activity; or (5) sell or
offer for sale in interstate or foreign commerce. Certain exceptions to
these prohibitions apply to employees or agents 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 for endangered wildlife are codified at 50 CFR 17.22.
With regard to endangered wildlife, a permit may be issued for
scientific purposes, for enhancing the propagation or survival of the
species, or for take incidental to otherwise lawful activities. The
statute also contains certain exemptions from the prohibitions, which
are found in sections 9 and 10 of the Act.
It is the policy of the Service, as published in the Federal
Register on July 1, 1994 (59 FR 34272), to identify, to the extent
known at the time a species is listed, specific activities that will
not be considered likely to result in violation of section 9 of the
Act. To the extent possible, activities that will be considered likely
to result in violation will also be identified in as specific a manner
as possible. The intent of this policy is to increase public awareness
of the effect of a proposed listing on proposed and ongoing activities
within the range of the species proposed for listing.
At this time, we are unable to identify specific activities that
will be considered likely to result in a violation of section 9 of the
Act beyond what is already clear from the descriptions of the
prohibitions at 50 CFR 17.21 and general Service permitting regulations
codified at 50 CFR part 13. Questions regarding whether specific
activities would constitute violation of section 9 of the Act should be
directed to the Alabama Ecological Services Field Office (see FOR
FURTHER INFORMATION CONTACT).
II. Critical Habitat
Background
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Our regulations at 50 CFR 424.02 define the geographical area
occupied by the species as an area that may generally be delineated
around species' occurrences, as determined by the Secretary (i.e.,
range). Such areas may include those areas used throughout all or part
of the species' life cycle, even if not used on a regular basis (e.g.,
migratory corridors, seasonal habitats, and habitats used periodically,
but not solely by vagrant individuals).
Conservation, as defined under section 3 of the Act, means to use
and the use of all methods and procedures that are necessary to bring
an endangered or threatened species to the point at which the measures
provided pursuant to the Act are no longer necessary. Such methods and
procedures include, but are not limited to, all activities associated
with scientific resources management such as research, census, law
enforcement, habitat acquisition and maintenance, propagation, live
trapping, and transplantation, and, in the extraordinary case where
population pressures within a given ecosystem cannot be otherwise
relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the requirement that each Federal action agency 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 designated 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. Rather, designation requires that, where a landowner
requests Federal agency funding or authorization for an action that may
affect an area designated as critical habitat, the Federal agency
consult with the Service under section 7(a)(2) of the Act. If the
action may affect the listed species itself (such as for occupied
critical habitat), the Federal agency would have already been required
to consult with the Service even absent the designation because of the
requirement to ensure that the action is not likely to jeopardize the
continued existence of the species. Even if the Service were to
conclude after consultation that the proposed activity is likely to
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.
[[Page 74399]]
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 the 4(d) rule if one has
been issued for the listed species. Federally funded or permitted
projects affecting listed species outside their designated critical
habitat areas may still result in jeopardy findings in some cases.
These protections and conservation tools will continue to contribute to
recovery of the species. Similarly, critical habitat designations made
on the basis of the best available information at the time of
designation will not control the direction and substance of future
recovery plans, habitat conservation plans, or other species
conservation planning efforts if new information available at the time
of those planning efforts calls for a different outcome.
Critical Habitat Determinability
Our regulations at 50 CFR 424.12(a)(2) state that critical habitat
is not determinable when one or both of the following situations exist:
(i) Data sufficient to perform required analyses are lacking, or
(ii) The biological needs of the species are not sufficiently well
known to identify any area that meets the definition of ``critical
habitat.''
When critical habitat is not determinable, the Act allows the
Service an additional year to publish a critical habitat designation
(16 U.S.C. 1533(b)(6)(C)(ii)).
We reviewed the available information pertaining to the biological
needs of the species and habitat characteristics where this species is
located. The species' needs are sufficiently well known, but a careful
assessment of the economic impacts that may occur due to a critical
habitat designation is ongoing. Until these efforts are complete,
information sufficient to perform a required analysis of the impacts of
the designation is lacking; therefore, we find designation of critical
habitat for the oblong rocksnail is prudent but not determinable at
this time. We plan to publish a proposed rule to designate critical
habitat for the oblong rocksnail concurrent with the availability of a
draft economic analysis of the proposed designation. The Act allows the
Service an additional year to publish a critical habitat designation
that is not determinable at the time of listing (16 U.S.C.
1533(b)(6)(C)(ii)).
Required Determinations
Clarity of the Rule
We are required by Executive Orders 12866 and 12988 and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in ADDRESSES. To better help us
revise the rule, your comments should be as specific as possible. For
example, you should tell us the numbers of the sections or paragraphs
that are unclearly written, which sections or sentences are too long,
the sections where you feel lists or tables would be useful, etc.
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 the oblong
rocksnail does not occupy any Tribal lands, so this proposed rule
should not affect any Tribes or Tribal lands.
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 Alabama Ecological Services Field Office (see FOR FURTHER
INFORMATION CONTACT).
Authors
The primary authors of this proposed rule are the staff members of
the Fish and Wildlife Service's Species Assessment Team and the Alabama
Ecological Services Field Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Plants,
Reporting and recordkeeping requirements, Transportation, Wildlife.
Proposed Regulation Promulgation
Accordingly, we propose to amend part 17, subchapter B of chapter
I, title 50 of the Code of Federal Regulations, as set forth below:
[[Page 74400]]
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.
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2. In Sec. 17.11, in paragraph (h), amend the List of Endangered and
Threatened Wildlife by adding an entry for ``Rocksnail, oblong'' in
alphabetical order under SNAILS to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
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Listing citations and
Common name Scientific name Where listed Status applicable rules
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* * * * * * *
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Snails
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* * * * * * *
Rocksnail, oblong............ Leptoxis Wherever found. E.............. [Federal Register citation
compacta. when published as a final
rule].
* * * * * * *
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Stephen Guertin,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2023-23994 Filed 10-30-23; 8:45 am]
BILLING CODE 4333-15-P