[Federal Register Volume 89, Number 46 (Thursday, March 7, 2024)]
[Rules and Regulations]
[Pages 16624-16681]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-04053]
[[Page 16623]]
Vol. 89
Thursday,
No. 46
March 7, 2024
Part II
Department of the Interior
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Fish and Wildlife Service
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50 Part 17
Endangered and Threatened Wildlife and Plants; Designation of Critical
Habitat for Endangered Florida Bonneted Bat; Final Rule
Federal Register / Vol. 89 , No. 46 / Thursday, March 7, 2024 / Rules
and Regulations
[[Page 16624]]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R4-ES-2019-0106; FXES1111090FEDR-245-FF09E21000]
RIN 1018-BE10
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for Endangered Florida Bonneted Bat
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate
critical habitat for the Florida bonneted bat (Eumops floridanus) under
the Endangered Species Act of 1973 (Act), as amended. In total,
approximately 1,160,625 acres (469,688 hectares) in 13 Florida counties
fall within the boundaries of the critical habitat designation. This
rule extends the Act's protections to this species' critical habitat.
DATES: This rule is effective April 8, 2024.
ADDRESSES: This final rule is available on the internet at https://www.regulations.gov and https://www.fws.gov/species/florida-bonneted-bat-eumops-floridanus. Comments and materials we received are available
for public inspection at https://www.regulations.gov at Docket No. FWS-
R4-ES-2019-0106.
Availability of supporting materials: Supporting materials we used
in preparing this rule are available at https://www.regulations.gov at
Docket No. FWS-R4-ES-2019-0106. 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-2019-0106, at https://www.fws.gov/species/florida-bonneted-bat-eumops-floridanus, and at the
Florida Ecological Services Field Office (see FOR FURTHER INFORMATION
CONTACT, below).
FOR FURTHER INFORMATION CONTACT: Lourdes Mena, Classification and
Recovery Division Manager, U.S. Fish and Wildlife Service, Florida
Ecological Services Field Office, 7915 Baymeadows Way, Suite 200,
Jacksonville, FL 32256; telephone (352) 749-2462. 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, when we determine
that any species is an endangered or threatened species, we are
required to designate critical habitat, to the maximum extent prudent
and determinable. Designations of critical habitat can only be
completed by issuing a rule through the Administrative Procedure Act
rulemaking process (5 U.S.C. 551 et seq.).
What this document does. This rule designates critical habitat for
the Florida bonneted bat. The designation includes approximately
1,160,625 acres (ac) (469,688 hectares (ha)) in portions of 13 Florida
counties.
The basis for our action. 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 protection; 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 Florida bonneted bat's final listing rule (78
FR 61004; October 2, 2013), proposed critical habitat rule (85 FR
35510; June 10, 2020), and revised proposed critical habitat rule (87
FR 71466; November 22, 2022) for a detailed description of previous
Federal actions concerning this species.
Peer Review
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 proposed critical habitat
rule (85 FR 35510; June 10, 2020). We sent the proposed rule to six
independent peer reviewers and received two responses. Following the
public comment period for the revised proposed rule (87 FR 71466;
November 22, 2022), we sent the revised proposed rule to five
independent peer reviewers and received one response. The peer reviews
can be found at https://www.regulations.gov. We incorporated the
results of these reviews, as appropriate, into this final rule. A
summary of the peer review comments and our responses can be found
under Summary of Comments and Recommendations, below.
Summary of Changes From the Proposed Rule
After considering the comments we received during the public
comment period (refer to Summary of Comments and Recommendations,
below) and new information published or obtained since the revised
proposed rule was published (87 FR 71466; November 22, 2022), we made
changes to this final critical habitat designation, as described below.
No changes were made to our economic analysis after considering public
comments on the draft document; thus, we finalized the economic
analysis of the designation. We added the following supporting
documents at https://www.regulations.gov under Docket No. FWS-R4-ES-
2019-0106: (1) A table entitled, ``Conservation Lands Within Florida
Bonneted Bat Final Critical Habitat Designation,'' (2) coordinates from
which the final critical habitat maps are generated, (3) a list of
literature cited in this final rule, (4) the peer reviews of the
revised proposed rule and the accompanying conflict of interest forms,
and (5) a table of requested additions to the proposed and revised
proposed critical habitat designations and the outcome of our
evaluation for each area.
In this rule, we make many small, nonsubstantive changes and
corrections (e.g., updating the discussion under Background, below, in
response to comments and making minor clarifications) that do not
affect the designation. We also make several minor updates to the
biological information for and habitat use by the Florida bonneted bat
based on new and updated information. Specifically, we update
measurements of roost characteristics, add detail on foraging areas and
insects associated with agricultural crops, add information about the
Florida bonneted bat's use of
[[Page 16625]]
seasonally inundated forested wetlands, and add new information about
the species' breeding and resource defense. In addition, we update
citations supporting existing statements as needed. The following items
describe changes made between the revised proposed rule (87 FR 71466;
November 22, 2022) and this final rule:
(1) In Cover or Shelter, under Physical or Biological Features
Essential to the Conservation of the Species, below, we update roost
habitat characteristics and roost measurements, including both averages
and ranges in our description, and we clarify the role of artificial
roosts in Florida bonneted bat habitat.
(2) In Food, Water, Air, Light, Minerals, or Other Nutritional or
Physiological Requirements, under Physical or Biological Features
Essential to the Conservation of the Species, below, we add information
on the influence of artificial lighting on Florida bonneted bat
habitat.
(3) In both the Summary of Essential Physical or Biological
Features, under Physical or Biological Features Essential to the
Conservation of the Species, and in the rule portion of this document,
below, we modified the first and second physical or biological features
essential to the conservation of the Florida bonneted bat to include
sufficient darkness as a habitat feature, and we modified the first
physical or biological feature to qualitatively characterize roosting
habitat.
(4) Under Special Management Considerations or Protection, below,
we update estimates of the critical habitat area to be affected by sea
level rise or converted to developed land by 2070 based on the areas
included within this final critical habitat designation, and we add a
discussion under the heading Ecological Light Pollution to align with
the changes we make to the physical or biological features noted in (2)
and (3), above, regarding artificial lighting and sufficient darkness.
(5) Under Final Critical Habitat Designation, below, we adjust the
boundaries of Subunits 3B, 9M, 9N, and 9O to include a total of an
additional 1,179 ac (477 ha). Subunit 3B now includes an additional
1,118 ac (452 ha) of lands primarily owned by Lee County, based on a
peer review comment and to ensure we are designating the specific areas
that contain the physical or biological features essential to the
conservation of the Florida bonneted bat. Subunit 9M includes an
additional 10 ac (4 ha) of lands owned by Miami-Dade County, based on a
request from Miami-Dade County and new information indicating these
areas have the essential physical or biological features. Subunit 9N
includes an additional 10 ac (4 ha) of lands primarily owned by the
State of Florida and managed by Miami-Dade County, based on a request
from Miami-Dade County and new information indicating this area also
contains the essential physical or biological features. Subunit 9O
includes an additional 42 ac (17 ha) of lands primarily owned by Miami-
Dade County (38 ac (15 ha)) and the U.S. Coast Guard (4 ac (2 ha)),
based on new information indicating this area also contains the
essential physical or biological features.
(6) Under Application of the ``Adverse Modification'' Standard,
below, we add excessive alteration of natural lighting as an action
that would significantly reduce habitat suitability or impact the prey
base for the Florida bonneted bat in the list of activities that we
may, during a consultation under section 7(a)(2) of the Act (16 U.S.C.
1531 et seq.), consider likely to destroy or adversely modify critical
habitat.
(7) We exclude the Coral Reef Commons Habitat Conservation Plan
(HCP) on-site preserve and off-site mitigation areas in Subunit 9O from
this final designation pursuant to section 4(b)(2) of the Act based on
the provisions of the HCP. This amounts to a decrease of approximately
104 ac (42 ha) from the critical habitat areas we proposed.
(8) We exclude Tribal lands of the Seminole Tribe of Florida in
Unit 6. This amounts to a decrease of approximately 14,455 ac (5,850
ha) from the critical habitat areas we proposed.
(9) We exclude Tribal lands of the Miccosukee Tribe of Florida in
Subunit 1B. This amounts to a decrease of approximately 1.25 ac (0.5
ha) from the critical habitat areas we proposed.
(10) We apply updated information on parcel boundaries and parcel
ownership that we obtained from counties, which changed some of the
areas of critical habitat by land ownership category from what we
presented in table 1 in the revised proposed rule (87 FR 71466,
November 22, 2022, p. 71475; see table 1 under Final Critical Habitat
Designation, below, for comparison). However, the total area of
critical habitat in Units 2, 4, 5, 7, and 8 are the same as we
proposed. The total area has only substantially changed for those units
where exclusions or boundary adjustments were applied, as noted above
in (5), (7), (8), and (9).
(11) Because of the above boundary adjustments and exclusions, in
this rule, we revise the index map and maps for Units 1, 3, 6, and 9A-
9O in the rule portion of this document.
Beyond those changes, this critical habitat designation is
unchanged from what we proposed on November 22, 2022 (87 FR 71466).
Summary of Comments and Recommendations
We requested that all interested parties submit written comments on
the proposed critical habitat rule (85 FR 35510; June 10, 2020) and on
the revised proposed critical habitat rule (87 FR 71466; November 22,
2022) for the Florida bonneted bat. The comment period for the proposed
critical habitat rule closed on August 10, 2020; the comment period for
the revised proposed critical habitat rule closed on January 23, 2023.
For the proposed critical habitat rule (85 FR 35510; June 10,
2020), we contacted appropriate Federal and State agencies, Tribes,
scientific experts and organizations, and other interested parties and
invited them to comment on the proposal. For the revised proposed
critical habitat rule (87 FR 71466; November 22, 2022), we again
contacted appropriate Federal and State agencies, Tribes, scientific
experts and organizations, and other interested parties and invited
them to comment on the proposal. In the November 22, 2022, revised
proposed rule, we stated that any comments we received in response to
the June 10, 2020, proposed rule need not be resubmitted as they would
be fully considered in this final rule.
For the June 10, 2020, proposed rule, newspaper notices inviting
general public comment were published in the Orlando Sentinel, Ft.
Myers News-Press, Sarasota Herald Tribune, and Miami Herald newspapers
on June 9, 2020. For the November 22, 2022, revised proposed rule, a
newspaper notice inviting general public comment was published in the
Miami Herald newspaper on November 28, 2022.
For the June 10, 2020, proposed rule, we did not receive any
requests for a public hearing, but we held public informational
webinars on June 16 and 17, 2020. For the November 22, 2022, revised
proposed rule, we did not receive any requests for a public hearing.
Because of the comprehensive changes we made to the June 10, 2020,
proposed rule in the November 22, 2022, revised proposed rule, some
substantive comments and information we received during the comment
period on the June 10, 2020, proposed rule no longer apply, and we do
not address them below. All other substantive information we received
during both comment periods has either been
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incorporated directly into this final determination or is addressed
below.
During the comment period on the June 10, 2020, proposed rule, we
received approximately 1,900 written comment letters on the proposed
critical habitat designation or the draft economic analysis (DEA) and
supplemental memo (IEc 2020a, b, entire). During the comment period on
the November 22, 2022, revised proposed rule, we received an additional
41 comment letters on the revised proposed critical habitat designation
or the DEA and supplemental memo (IEc 2021a, b, entire). During the
comment period on the November 22, 2022, revised proposed rule, we also
received four requests for exclusion of areas that were not identified
as being considered for exclusion in the proposed rule or the revised
proposed rule. We reviewed each exclusion request, whether received in
response to the proposed or revised proposed rule, to determine if the
requester provided information or a reasoned rationale to initiate an
analysis of exclusion or support an exclusion (see Policy Regarding
Implementation of Section 4(b)(2) of the Endangered Species Act (81 FR
7226; February 11, 2016), hereafter referred to as our 2016 section
4(b)(2) policy). All substantive information provided to us during both
comment periods has been incorporated directly into this final
determination or, in the case of substantive information regarding the
DEA received during the comment period on the June 10, 2020, proposed
rule, was used to revise the economic analysis and supplemental memo
(IEc 2021a, b, entire) between the June 10, 2020, proposed and November
22, 2022, revised proposed rules.
Peer Reviewer Comments
As discussed in Peer Review above, we received comments from two
peer reviewers on the June 10, 2020, proposed rule and one peer
reviewer on the November 22, 2022, revised proposed rule. We reviewed
all comments we received from the peer reviewers for substantive issues
and new information regarding the Florida bonneted bat and its habitat
use and needs. The peer reviewers provided critiques of our methods but
generally concurred with our designation of critical habitat and
conclusions and provided additional information, clarifications, and
suggestions to improve the designation. Our revised proposed critical
habitat rule (87 FR 71466; November 22, 2022) was developed in part to
address some of the critiques and information raised by the peer
reviewers in 2020. The additional details and information we received
or that were raised by the peer reviewers have been incorporated into
this final rule, as appropriate. Peer review comments are addressed in
the following summary.
(1) Comment: In response to the June 10, 2020, proposed critical
habitat rule (85 FR 35510) and the November 22, 2022, revised proposed
critical habitat rule (87 FR 71466), we received peer review and public
comments requesting that we consider adding 71 areas to the critical
habitat designation for the Florida bonneted bat. Specific additions
were recommended with supporting information, including information
regarding habitat and evidence of use by the Florida bonneted bat.
Commenters also stated their views that the critical habitat areas
included in the June 10, 2020, proposed and November 22, 2022, revised
proposed designations were not sufficient to ensure long-term
conservation of the species in light of future threats, such as climate
change and urbanization, and that unoccupied habitat should be
reexamined for inclusion.
Our Response: In preparing this final designation, we evaluated all
requests for the addition of specified areas (see ``Areas Requested for
Addition to Florida Bonneted Bat Critical Habitat'' under Supporting
and Related Material in Docket No. FWS-R4-ES-2019-0106 on https://www.regulations.gov). In the November 22, 2022, revised proposed
designation, we included 24 additions requested in response to the June
10, 2020, proposed rule that resulted from our development of new
critical habitat criteria and analysis of physical or biological
features that are essential to the Florida bonneted bat, which guided a
new delineation of revised critical habitat units. Of those areas not
included in the November 22, 2022, revised proposed rule, we determined
that four meet the definition of critical habitat for the Florida
bonneted bat, and we include these areas in this final designation as
reflected in boundary changes made to four subunits (Subunits 3B, 9M,
9N, and 9O; see Final Critical Habitat Designation, below). The
remaining areas, including identified golf courses, parks, and heavily
fragmented areas, are not included in this final designation. While we
agree that such areas can be important to the species and are
considered in recovery and regulatory processes, our evaluation
indicated the identified areas did not meet our criteria for
designating critical habitat.
A critical habitat designation does not signal that habitat outside
the designated area is unimportant or should not be managed or
conserved 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) section 9 of
the Act, which prohibits taking any individual of the species,
including taking caused by actions that affect habitat; and (3)
regulatory protections afforded by the requirement in section 7(a)(2)
of the Act for Federal agencies to ensure that actions that they
authorize, fund, or carry out are not likely to jeopardize the
continued existence of any endangered or threatened species. Thus,
Federal agencies must consult with the Service even if actions they
authorize, fund or carry out are conducted outside of designated
critical habitat if those activities may affect listed species.
In accordance with section 3(5)(A) of the Act, we are designating
critical habitat in specific areas within the geographical area
occupied by the species at the time of listing that contain the
physical or biological features essential to the conservation of the
species and which may require special management considerations or
protection. We acknowledge that a variety of roosting and foraging
habitats are important to the conservation of the Florida bonneted bat.
However, a critical habitat designation identifies the habitat areas
essential to the species; it is not necessary to include in the
designation all areas that can be occupied by the species or where the
species has been detected. We may designate critical habitat that is
outside the geographical area occupied by the species if we determine
it to be essential for the conservation of the species. Accordingly,
during the development of our November 22, 2022, revised proposed rule,
we evaluated areas both within and outside the species' current range
to identify those areas that have the essential physical or biological
features we established for inclusion in critical habitat. We then
evaluated whether the areas considered to be occupied are sufficient to
ensure conservation of the species. Based on our determination that the
occupied units included in the November 22, 2022, revised proposed rule
represent the appropriate quantity and spatial arrangement essential to
the species, we determined unoccupied areas are not essential for the
conservation of the Florida bonneted bat. However, this designation
does include areas in the northern extremes of the species'
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current range that, while currently occupied, may become of much higher
value to the species as the climate changes (see description of Unit 1
under Final Critical Habitat Designation, below).
(2) Comment: Peer reviewers recommended acknowledging the important
role artificial roosts play in Florida bonneted bat conservation and
recovery, and they suggested including artificial roosts (e.g., bat
houses, bat boxes) in the species' essential physical or biological
features and our habitat analysis.
Our Response: Physical or biological features are features that
support the species' life-history needs, such as reproduction. Roosting
habitat is essential to Florida bonneted bats to provide shelter and
support reproduction, socialization, and other natural behaviors. While
artificial roosts can provide alternative, long-term, and hurricane-
resilient roosting habitat for the species where roosting habitat is
limited, they are an imperfect surrogate for natural roosting habitat
and are not on their own a habitat feature essential for the species'
survival (see Cover or Shelter, below, for additional details). It is
also for this reason that we do not include roost measurements of
artificial or supplemental roosts in our description of roosting
habitat, although available locations of artificial roosts are included
in the presence dataset used for our habitat analysis (see ``Florida
Bonneted Bat Habitat Analysis'' under Supporting and Related Material
in Docket No. FWS-R4-ES-2019-0106 on https://www.regulations.gov).
Additionally, while our knowledge regarding how to design bat houses
with conservation benefits for Florida bonneted bats is improving, many
designs still present thermal issues to bat colonies and can be harmful
(Crawford and O'Keefe 2021, entire; Bat Conservation International
2022, pp. 10-11). Also, bat houses often require human intervention to
repair and replace as they deteriorate, especially in Florida, reducing
the potential for these structures to provide long-term conservation
benefits for Florida bonneted bats. We appreciate the efforts of our
partners to provide safe supplemental roosts for the Florida bonneted
bat, and we agree that, with proper placement, design, and maintenance,
supplemental roosts play an important role in the conservation of the
species. While not intentionally included or excluded, all bat houses
for Florida bonneted bats at Fred C. Babcock-Cecil M. Webb Wildlife
Management Area (Babcock-Webb WMA) and the majority (80 percent) of
known bat houses for Florida bonneted bats in Miami-Dade County are
located within the final critical habitat designation. Additionally, as
noted above, areas including artificial roosts remain subject to
regulatory protections afforded by the requirement in section 7(a)(2)
of the Act for Federal agencies to ensure that actions that they
authorize, fund, or carry out are not likely to jeopardize the
continued existence of any endangered or threatened species.
(3) Comment: In response to the June 10, 2020, proposed and
November 22, 2022, revised proposed rules, peer reviewers and public
commenters stated their views that additional discussion and
consideration of urban areas were needed, and they suggested including
some or all urban areas within the species' range (including golf
courses, parks, urban ponds, and canals, especially within Miami-Dade
County) in the critical habitat designation. Commenters voiced that the
addition of these areas is needed to allow the Florida bonneted bat to
forage in fragmented landscapes. Commenters also questioned why the
proposed and revised proposed rules include negative associations with
respect to urban areas and Florida bonneted bat habitat, when a
significant portion of the overall population uses an urban landscape;
commenters suggested that suburban and urban areas be modeled at a
different, smaller scale than areas outside the urban matrix and/or be
considered using different criteria for inclusion in the critical
habitat designation.
Our Response: To identify specific areas that may qualify as
critical habitat for the Florida bonneted bat, in accordance with 50
CFR 424.12(b), we included the following considerations in the process:
(1) Identifying the geographical area occupied by the species at the
time of listing; (2) identifying physical or biological habitat
features essential to the conservation of the species; (3) identifying
the specific areas within the geographical area occupied by the species
that contain one or more of the physical or biological features
essential to the conservation of the species; (4) determining which of
these essential features may require special management considerations
or protection; and (5) identifying specific areas outside the
geographical area occupied by the species that are essential for the
species' conservation. Our evaluation and conclusions are described in
detail below under the following headings: Physical or Biological
Features Essential to the Conservation of the Species, Special
Management Considerations or Protection, and Conservation Strategy and
Selection Criteria Used to Identify Critical Habitat.
In development of the November 22, 2022, revised proposed
designation, we developed revised physical or biological features based
on new information as well as peer review and public comments on the
June 10, 2020, proposed rule. As a result, habitat within the Miami-
Dade urban matrix was evaluated, and those areas that contain the
physical or biological features essential to the conservation of the
species were included in our revised proposed designation (i.e., Unit
9). However, while natural areas within urban landscapes are used by
Florida bonneted bats, increased urbanization is considered a threat to
the species as these areas can have limited resources, such as a lack
of roost trees, and increased conflicts with humans. Therefore, despite
their use by the species and their local importance, many urban areas
have a lower conservation value to the species as a whole and do not
contain the physical or biological features essential to the
conservation of the Florida bonneted bat.
Results of our habitat analysis (see ``Florida Bonneted Bat Habitat
Analysis'' under Supporting and Related Material in Docket No. FWS-R4-
ES-2019-0106 on https://www.regulations.gov) did not specifically
inform our consideration of urban areas as part of our revised proposed
critical habitat methodology or delineation. The MaxEnt model that we
used in our analysis did not identify the amount of urbanization as a
habitat-related variable having strong influence on the probability of
Florida bonneted bat occurrence. Thus, no urbanization covariate was
incorporated in our model output or analysis results, and we have no
model-related results to estimate its correlation (positive or
negative) with Florida bonneted bat occupancy or the relative
conservation value of these areas.
In addition, model covariate layers representing high-quality
foraging habitat include certain natural areas within the urban matrix
based on our evaluation of land cover type characteristics; thus, we
did not assume a broad negative association between foraging habitat
quality and urbanization. We acknowledge that choice of scale typically
impacts the results of any spatial analysis and that the influence and
association of urban areas with Florida bonneted bat occurrence and
habitat suitability may differ from our MaxEnt results if a different
scale (i.e., grid cell size) is
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used. Based on the attributes of the available covariate data, as well
as on available sample size, we identified our grid cell size using the
best available data on Florida bonneted bat biology and habitat use at
the time of analysis (see ``Florida Bonneted Bat Habitat Analysis''
under Supporting and Related Material in Docket No. FWS-R4-ES-2019-0106
on https://www.regulations.gov).
Given acknowledged limitations of the habitat analysis, additional
criteria were applied to identify areas containing the essential
physical or biological features and delineate critical habitat (see
Selection Criteria and Methodology Used to Identify Critical Habitat,
below), including in urban areas.
(4) Comment: One peer reviewer and several public commenters stated
their views that habitat is a three-dimensional concept, and therefore
the airspace above the substrate, where the Florida bonneted bat
forages and socializes, is essential to the conservation of the
species. The peer reviewer also mentioned that because this three-
dimensional habitat approach has been used in critical habitat for
aquatic and fossorial species, the same approach should be applied to
the Florida bonneted bat as a flying species. Some commenters
suggested, citing Diehl et al. 2017 and other studies, that airspace
above disturbed areas, including over paved surfaces, is vital habitat
and heavily used by the species in some areas.
Our Response: We agree that airspace is important to this species.
``Open areas,'' as described in the second essential physical or
biological feature for the Florida bonneted bat, include the ground,
water, vegetation, and air where the Florida bonneted bat forages and
socializes above those surfaces; thereby, the air above the surfaces
where the Florida bonneted bat forages and socializes is included in
the open areas described in in the essential physical or biological
features for the species. Since the species' listing, consultations
have considered the species' use of habitat in three dimensions, and
the evaluation of impacts to Florida bonneted bat habitat addressed in
the Florida Bonneted Bat Consultation Guidelines also considers habitat
use in three dimensions (see Supporting and Related Material in Docket
No. FWS-R4-ES-2019-0106 on https://www.regulations.gov).
(5) Comment: One peer reviewer and several public commenters
expressed concerns regarding policy and language in the proposed rule
that states that critical habitat does not include lands covered by
buildings, pavement, and other structures (see paragraph (3) in the
proposed rule text for the Florida bonneted bat's critical habitat
designation at 85 FR 35510, June 10, 2020, p. 35539). Commenters stated
their views that excluding these areas is arbitrary and unsupported by
the best data available on the Florida bonneted bat, and thus these
areas are inappropriately omitted from the critical habitat
designation.
Our Response: The Florida bonneted bat may roost in buildings and
forage above human-made structures, but critical habitat is not
intended to include all areas and locations that the species uses.
While certain human-made structures and the lands on which they are
located are not included in the designated critical habitat for the
Florida bonneted bat, impacts to bats using these areas may still be
considered during consultations for effects to the species.
(6) Comment: One peer reviewer suggested that live oaks (Quercus
virginiana) be included in the Cover or Shelter discussion as a
potential roost tree species. The reviewer mentioned that a non-volant
(flightless) pup was found below bisected tree cavity in a live oak,
providing evidence that the Florida bonneted bat will roost in live oak
trees. The peer reviewer also noted that the rule should acknowledge
live oak as a potential roost tree species considering mature trees of
this species with cavities are plentiful near known Florida bonneted
bat foraging areas.
Our Response: Known natural roosts with Florida bonneted bat
colonies have been documented in slash pine (Pinus elliottii), longleaf
pine (Pinus palustris), bald cypress (Taxodium distichum), and royal
palm (Roystonea regia) (see Cover or Shelter, below). All trees of
appropriate size, regardless of species, are considered to be possible
roost trees when project areas are evaluated and surveyed for
consultations. While no tree species is omitted from consideration
under the Florida bonneted bat's essential physical or biological
feature describing roosting habitat, we do not have the information
needed to specifically identify live oak trees as a species in which
roosts with Florida bonneted bat colonies have repeatedly been
observed.
Federal Agency Comments
(7) Comment: Comments from the U.S. Army Corps of Engineers and
Miami-Dade County recommended that conservation plans and additional
conservation measures for the Florida bonneted bat be included either
as part of the final rule or shared with Federal and local governments
outside of the rulemaking process. Other suggestions included that the
Service provide funding for land acquisition, incentives for limiting
pesticide use, guidance regarding bat-friendly lighting and exclusions,
and outreach materials.
Our Response: We appreciate our partners' support for conservation
of the Florida bonneted bat and interest in specific and additional
ways to conserve the species and its habitat. While critical habitat is
one tool that supports conservation of the species, providing
additional or specific conservation recommendations or funding
conservation is not within the scope of a critical habitat designation.
Additional discussion of conservation actions can be found in the
Florida Bonneted Bat Conservation Strategy and the Florida Bonneted Bat
Consultation Guidelines (see Supporting and Related Material in Docket
No. FWS-R4-ES-2019-0106 on https://www.regulations.gov) and will be
more fully addressed in the species' recovery plan. For further
coordination on development of conservation plans related to the
Florida bonneted bat or other listed species, please contact the
Service (see FOR FURTHER INFORMATION CONTACT).
(8) Comment: In response to the June 10, 2020, proposed rule, the
U.S. Army Corps of Engineers requested that private lands enrolled in
the Wetland Reserve Easement Partnership Program (WREPP, formerly the
Wetlands Reserve Program (WRP)) and lands within the Picayune Strand
Restoration Project be excluded from critical habitat designation. They
suggested that exclusion should be considered on an economic basis for
both areas of land and, for lands enrolled in WREPP, that exclusion
should also be considered due to the conservation benefits associated
with the program.
Our Response: We listed this exclusion request in table 2 in the
Exclusion Requests Received During the Previous Public Comment Period
section of the revised proposed rule (87 FR 71466, November 22, 2022,
p. 71481). In this final rule, we do not conduct an analysis of these
lands to determine whether the benefits of potentially excluding any
specific area from this critical habitat designation outweigh the
benefits of including that area in the designation under section
4(b)(2) of the Act. Under our 2016 section 4(b)(2) policy, we may
choose to exclude proposed critical habitat if there is a signed
conservation plan or program that provides for the necessary long-term
conservation and management of habitat for a species and an analysis
has determined that the benefits of
[[Page 16629]]
excluding outweigh the benefits of including the area in critical
habitat.
This comment was received in the context of the June 10, 2020,
proposed rule, and the WREPP lands that were requested for exclusion
(Wolf Island) were in Unit 1 of the proposed designation. Under the
revised physical or biological features proposed in the November 22,
2022, revised proposed rule, those WREPP lands no longer meet the
definition of critical habitat.
However, in our November 22, 2022, revised proposed designation,
there were other WREPP lands that overlapped with our revised proposed
critical habitat units, consisting of 387 ac (157 ha) in Subunit 2A.
Because of this, we extrapolated the logic of the initial request to
exclude WREPP lands, and we considered this initial request to also
apply to WREPP lands in the revised proposal, although we did not
receive a comment from the U.S. Army Corps of Engineers requesting that
we consider these other WREPP lands for exclusion. However, we did not
conduct an analysis considering the benefits of excluding WREPP lands
covered by a non-permitted voluntary conservation plan because the
initial request did not provide information on the benefits of
exclusion that would be needed to weigh the potential benefits of
excluding these lands from the critical habitat designation against
including them in the designation. Further, we did not receive any
other comments about this request. Additionally, it is our
understanding that the conservation in agreements under the WREPP
program is highly variable among landowners, and no landowner for these
WREPP lands provided information or comment on either the June 10,
2020, proposed or November 22, 2022, revised proposed rule. Similarly,
we do not conduct an exclusion analysis based on economic impacts for
either WREPP lands or lands within the Picayune Strand Restoration
Project (consisting of 64,490 ac (26,098 ha) in Unit 6) because the
commenter described an economic burden that is purely associated with
listing, and they did not describe any additional anticipated project
modifications or costs anticipated to result from the designation of
critical habitat for the Florida bonneted bat.
State Comments
(9) Comment: Two State agencies (the Florida Fish and Wildlife
Conservation Commission and Florida Farm Bureau) and other commenters
recommended that the Service provide assurances that the critical
habitat designation would not negatively affect a land manager's or
private landowner's ability to implement resource management activities
(e.g., prescribed fire, invasive species management, grazing, tree
harvesting) or recreational activities (e.g., hunting, off road vehicle
use) within critical habitat, and that it will not add regulatory
burden. Further, commenters recommended that the Service identify which
activities are likely to require (or not require) consultation with the
Service and clarify the project modifications that would be needed to
avoid adverse effects to or the destruction or adverse modification of
critical habitat.
Our Response: The purpose of the designation of critical habitat is
to identify those areas critical to the conservation of the species,
not to impede resource or habitat management. 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 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. To help Federal and State agencies
and members of the public recognize the actions considered to have
potential effects on designated critical habitat, we generally identify
those types of actions that could potentially result in destruction or
adverse modification of designated critical habitat (see Application of
the ``Adverse Modification'' Standard, below). The actual effects of a
proposed action on designated critical habitat are dependent on many
project-specific factors related to both the action being proposed and
the project area. Therefore, we cannot determine or provide specific
thresholds for adverse effects or adverse modification within this
rule. Determination of adverse effects or adverse modification is
conducted through the section 7 process, during which specific factors
of the proposed action and conditions within the project area can be
evaluated. This consultation requirement under section 7 is not a
prohibition of otherwise lawful actions; rather, it is a means by which
they may proceed in a manner that avoids destruction or adverse
modification of critical habitat. Even in areas absent designated
critical habitat, if the action may affect a listed species,
consultation is still required to ensure the action is not likely to
jeopardize the species. There is not expected to be any difference
between a jeopardy analysis (on the species) and an adverse
modification analysis (on the species' critical habitat) conducted as
part of the consultation because threats to the Florida bonneted bat
are largely habitat-related and all critical habitat units are
occupied.
Additionally, there are opportunities for collaboration and
cooperation with our partners to develop conservation strategies,
conservation plans, and programmatic consultations to streamline
regulatory procedures and compliance and to benefit listed species.
Public Comments
(10) Comment: In response to the November 22, 2022, revised
proposed critical habitat rule, one commenter requested clarification
regarding how all peer review, public comments, and new information
provided in response to the June 10, 2020, proposed rule were
considered in our revised proposed designation process. They also asked
what changes were made from the proposed rule to the revised proposed
designation and reasons for those changes.
Our Response: All peer review, public comments, and new information
we received on the June 10, 2020, proposed rule were thoroughly
reviewed and considered in our November 22, 2022, revised proposed
designation. Based on this review, we determined that changes were
needed to the physical or biological features essential to the
conservation of the Florida bonneted bat and the criteria and
methodology used to identify those specific areas that constitute
critical habitat for the species (see New Information and Revisions to
Previously Proposed Critical Habitat at 87 FR 71466, November 22, 2022,
p. 71469). To sufficiently address comments we received and incorporate
new information, we comprehensively rewrote the proposed designation
based on the development of a conservation strategy and corresponding
critical habitat criteria, a new habitat analysis, and new essential
physical or biological features, all based on the best available
science. Given the significant and substantive changes we made in
identifying the essential physical or biological features and,
accordingly, the areas that meet the definition of critical habitat for
the Florida bonneted bat, we determined it was necessary to revise the
proposal and provide for notice and comment; therefore, we published
the November 22, 2022, revised proposed rule (87 FR 71466). In this
final rule, we are providing responses to peer review and public
comments we received on both the June 10, 2020, proposed and November
22, 2022, revised proposed rules, and, where appropriate, we have noted
how our November 22, 2022,
[[Page 16630]]
revised proposed designation addressed comments on the June 10, 2020,
proposed rule.
(11) Comment: One commenter stated their view that the November 22,
2022, revised proposed rule explains how genetic diversity, geographic
extent, and ecological diversity were incorporated in the revised
proposed critical habitat designation, but it does not show that the
designation is sufficient to achieve resiliency, redundancy, and
representation.
Our Response: To determine and select appropriate areas, we
incorporated information from the conservation strategy for the species
(see ``Florida Bonneted Bat Conservation Strategy'' under Supporting
and Related Material in Docket No. FWS-R4-ES-2019-0106 on https://www.regulations.gov). This conservation strategy helped identify those
areas within the Florida bonneted bat's range that contain the
essential physical or biological features. In the absence of population
estimates or trend data, we used current presence data along with
information regarding future changes to the landscape (e.g., due to
climate and urbanization) to estimate the quantity and spatial
arrangement of units that would be sufficient to conserve the species.
The resulting 1,160,625-ac (469,688-ha) designation includes the four
known Florida bonneted bat populations that support resiliency,
redundancy, and representation of the species by including areas that
maintain or reestablish connectivity within and between populations
(supporting resiliency), that are predicted to be unaffected or less
affected by sea-level rise and climate change (supporting resiliency),
that are in each of the known genetically distinct areas and
distributed across the geographic range of the species (supporting
representation, redundancy, resiliency), and that are in each major
ecological community that provides roosting habitat (supporting
representation and resiliency).
(12) Comment: In response to the June 10, 2020, proposed and
November 22, 2022, revised proposed critical habitat rules, several
commenters stated their views that our designation process did not
consider the best available scientific information and that information
was not considered sufficiently or interpreted correctly. Specific
concerns expressed included failure to incorporate all Florida bonneted
bat location data, including acoustic and telemetry data, as well as
specific published and unpublished information sources related to the
species' range, movements, biology, genetics, habitat use, and threats
(including climate change). One commenter disagreed with our
interpretation of acoustic data, specifically related to the level of
bat activity, which the commenter believes resulted in an over-
inclusive designation regarding Subunit 9O.
Our Response: In development of the November 22, 2022, revised
proposed critical habitat rule, we reviewed all information sources and
specific information identified in comments on the June 10, 2020,
proposed rule to ensure that they were considered as part of our
revised designation process. We also obtained and incorporated all
available location data for the Florida bonneted bat, including
geographic information system (GIS) and non-GIS data from acoustic
surveys, reports, and researchers (including roost locations and maps
of telemetry data). All of this information was used in multiple facets
of our revised designation process, including the development of our
Florida Bonneted Bat Conservation Strategy and Florida Bonneted Bat
Habitat Analysis (see these documents under Supporting and Related
Material in Docket No. FWS-R4-ES-2019-0106 on https://www.regulations.gov), physical or biological features essential to the
Florida bonneted bat, critical habitat criteria, and critical habitat
delineation methods. As such, the November 22, 2022, revised proposed
rule incorporated substantial new information representing the best
available science. In addition, in the development of this final
designation, we have reviewed additional information sources provided
through public comments on the November 22, 2022, revised proposed rule
and have updated the rule as appropriate (see Summary of Changes from
the Proposed Rule, above).
We followed our standard peer review process for both the June 10,
2020, proposed and November 22, 2022, revised proposed rules to help
ensure we are applying the best available information and that our
interpretation is appropriate. While acoustic locations were used to
indicate presence of Florida bonneted bats as part of our habitat
analysis, information related to the level of bat activity (e.g.,
number of Florida bonneted bat calls or percentage of total bat calls)
did not provide further insight into the presence of Florida bonneted
bats in an area and was not used in delineating Subunit 9O or in any
part of the revised designation process. Furthermore, as mentioned, the
designation process is complex and not based on presence data alone.
(13) Comment: In response to the November 22, 2022, revised
proposed critical habitat rule, one commenter stated their view that
the habitat analysis methods used were flawed and that the results
appear to conflict with the best available science. Specifically, the
commenter expressed concerns that our use of a combination of roost
locations and positive acoustic detections (the latter of which
represented the majority of locations) resulted in skewed data. The
commenter asserted that the use of non-random acoustic data may have
influenced our analysis results, which they said seem to disagree with
independent research and peer-reviewed studies that suggest
agricultural areas are important for the Florida bonneted bat. The
commenter also questioned why and how we classified cover types as
high-quality foraging habitat in our development of modeling
covariates.
Our Response: In response to comments we received on the June 10,
2020, proposed critical habitat rule, we incorporated all available
data (e.g., acoustic detections from all available sources, including
locations sampled by Bailey et al. (2017a, entire), as well as known
roost locations) in our November 22, 2022, revised proposed
designation. In our initial exploratory analyses during the development
of the revised proposed designation, model results based only on roost
locations indicated the model was overfitted (i.e., model results
corresponded too closely to the data used and thus may fail to predict
future observations reliably), likely resulting from small sample size
(n = 21). Because these exploratory analyses showed that a roost-only
model is not appropriate based on data available at the time of our
analysis, in our final analysis, we chose to combine roost locations
with acoustic data in a single presence dataset to ensure we
incorporated all available GIS data into our model. Likewise, we did
not limit our analysis to only those data collected using a randomized
sampling design, as that would exclude a large amount of available
data. As acknowledged in our Florida Bonneted Bat Habitat Analysis (see
Supporting and Related Material in Docket No. FWS-R4-ES-2019-0106 on
https://www.regulations.gov), we recognize that the majority of
acoustic data were collected during pre-development surveys and thus
may exhibit a certain level of habitat bias based on project locations
(but not due to survey protocol, as agricultural areas are included in
potential foraging habitat to be surveyed (see ``Florida Bonneted Bat
Consultation Guidelines'' under Supporting and Related Material in
Docket No. FWS-R4-ES-2019-0106
[[Page 16631]]
on https://www.regulations.gov)). We agree that this habitat bias
likely contributed to the differing results obtained from our model
related to correlation of species' occurrence with agricultural areas
when compared to the results of those studies identified by the
commenter (i.e., Bailey et al. 2017a, p. 1589; Webb 2018, p. 25),
although our results were also (and possibly more so) influenced by
differences in the source and classification of land cover data, model
covariates, and/or model spatial scale. While our designation is based
on the best available data, we believe continued modeling efforts would
be useful to better understand the Florida bonneted bat's habitat needs
at both local and landscape scales, including how different habitat
types contribute to supporting the long-term conservation of the
species.
Many habitats or land cover types contribute at least minimally to
providing foraging opportunities for Florida bonneted bats (e.g., by
producing prey), but not all of these areas are equal in the amount or
type of prey they produce or in having the open habitat structure
needed for maneuvering to catch prey. To explore these relationships,
we classified land cover data in two ways: (1) Foraging habitat quality
(high quality, low quality, not foraging habitat) based on the cover
type's likelihood of producing large insects (e.g., beetles and moths);
and (2) foraging habitat structure (open, not open) based on the cover
type description (see table 1 in Florida Bonneted Bat Habitat Analysis
under Supporting and Related Material in Docket No. FWS-R4-ES-2019-0106
on https://www.regulations.gov). Many land cover types, including most
agricultural types, were classified as high-quality foraging habitat
(based on prey production); cover types we associated with lower prey
production consisted of saltwater/saline habitats, highly manicured
areas (e.g., lawns), and unvegetated cover types. Of those cover types
classified as high-quality foraging, all having an open habitat
structure were classified as high-quality open foraging habitat. These
classifications were then used to develop model covariate layers to
investigate their potential influence on Florida bonneted bat
occurrence. The MaxEnt model that we used in our analysis does not
identify the amount of high-quality or high-quality open foraging
habitat as having a strong influence on the probability of Florida
bonneted bat occurrence; thus, these covariates were not incorporated
in our model output or analysis results.
(14) Comment: In response to the November 22, 2022, revised
proposed critical habitat rule, commenters stated concerns about
various aspects of how current and future land use, the overall spatial
extent of the designation, ownership, and habitat quality were
considered in the revised proposed designation of critical habitat.
Some commenters stated their views that private lands, urban areas, and
agricultural areas were seemingly arbitrarily avoided in our revised
critical habitat designation and that the spatial extent of the
designation was arbitrarily reduced from the June 10, 2020, proposal.
Other commenters expressed concern with the revised proposed critical
habitat not aligning with ownership boundaries, such as conservation
easements, property lines, or other easements, or suggested that the
Service should consider future development plans when delineating
critical habitat and aim to avoid or protect areas with plans for
development. One commenter requested additional information regarding
how we considered ``hot spots'' identified by the habitat analysis,
specifically expressing concerns that some apparently high-quality
areas were omitted from the revised proposed designation.
Our Response: Critical habitat, as defined in section 3 of the Act,
includes the specific areas within the geographical area occupied by
the species, at the time it is listed, on which are found those
physical or biological features essential to the conservation of the
species and which may require special management considerations or
protection. In the development of our November 22, 2022, revised
proposed designation, we followed this approach to identify and
delineate critical habitat for the Florida bonneted bat using a step-
wise process incorporating critical habitat criteria based on the
species' conservation strategy, results of our spatially explicit
habitat analysis, and additional information that could not be
incorporated into our spatial analysis (see Conservation Strategy and
Selection Criteria Used To Identify Critical Habitat, below). We did
not consider ownership or management of any areas during this process,
and ownership and management information (including easements) is not
evaluated until after critical habitat delineation is completed; future
development plans are not considered in the definition or delineation
of critical habitat. Thus, private lands were not purposefully avoided,
and most units include private lands to some degree. Urban and
agricultural areas, while not specifically avoided, are less prevalent
than certain land cover types (e.g., forested lands, freshwater
wetlands) in the designation; this is primarily a result of their lower
likelihood of containing the essential physical or biological features
or their lower conservation value. For example, despite their use by
Florida bonneted bats and their local importance in the southeastern
extent of the species' range, many urban areas have lower conservation
value to the species as a whole and do not contain the physical or
biological features essential for the conservation of the Florida
bonneted bat, as further discussed above in our response to (3)
Comment. Likewise, although some agricultural areas are known to
provide foraging habitat for the species, the conservation value of
these areas is generally lower than that of other open foraging
habitats that are dominated by native vegetation and not exposed to
regular pesticide applications. Regardless of critical habitat
designation, Federal agencies are required to fulfill their
conservation responsibilities by consulting with the Service if the
actions they authorize, fund, or carry out ``may affect'' listed
species; therefore, Florida bonneted bats and their habitat are still
protected by the Act where they occur, including in urbanized and
agriculture areas.
Just as the composition of our November 22, 2022, revised proposed
designation was guided by the factors described above, so were the
spatial arrangement and extent of our revised critical habitat units.
During the development of our revised proposed rule, we evaluated areas
both within and outside the species' known range to identify those
areas that meet the definition of critical habitat. This evaluation
included areas identified as potential ``hot spots'' (areas having
higher probability of Florida bonneted bat occurrence) in the
predictive maps produced based on our MaxEnt model. We further
evaluated these areas for the temperature limitations of the species
and to ensure that land cover data were correctly categorized, and we
eliminated areas that were unlikely to contain the physical or
biological features essential to the species (e.g., areas at the far
northern edge of the model's spatial extent where winter temperatures
are typically too low for the bat, areas where aerial imagery indicated
poor habitat quality). Other areas identified as ``hot spots'' by the
model but that were not occupied (e.g., area east of Lake Okeechobee)
were eliminated in a later step of our delineation process because we
determined unoccupied
[[Page 16632]]
areas are not essential for the conservation of the Florida bonneted
bat, as further discussed in our response to (1) Comment, above. The
remaining areas were included in our November 22, 2022, revised
proposed designation, as were additional areas where the physical or
biological features essential to the species are found and which we
determined were necessary to fulfill critical habitat criteria (e.g.,
areas for connectivity between model-identified ``hot spots'' that fall
within the geographical area occupied by the species as defined at 50
CFR 424.02). These methods produced the specific critical habitat units
included in our November 22, 2022, revised proposed designation, and
any differences in unit size, arrangement, or composition between the
June 10, 2020, proposed and November 22, 2022, revised proposed units
are a result of delineations made following revised criteria to
identify the essential physical or biological features rather than
arbitrary changes (see also our response to (10) Comment, above).
(15) Comment: In response to the November 22, 2022, revised
proposed critical habitat rule, one commenter questioned the removal of
minimum patch size as a criterion for critical habitat units and
suggested that this was not supported other than to allow for
additional connectivity, including the addition of smaller patches or
``stepping stones.'' The commenter also requested that a definition be
provided for the term ``stepping stones.''
Our Response: Based on peer review and public comments on the June
10, 2020, proposed rule and new information, we determined that use of
a minimum patch size was not appropriate for the Florida bonneted bat
because using a minimum patch size would have eliminated areas that
contain the physical or biological features essential to the
conservation of the species and that provide necessary ecological
community and genetic representation. ``Stepping stones'' are
characterized in the November 22, 2022, revised proposed rule and in
this rule under Space for Individual and Population Growth and for
Normal Behavior, below, as suitable habitat in the form of linear
corridors or patches and are described more specifically in the
description of the essential physical or biological features as patches
such as tree islands or other isolated natural areas within a matrix of
otherwise low-quality habitat.
(16) Comment: Several comments expressed concerns that many threats
to the Florida bonneted bat, as well as details related to some of the
outlined threats (e.g., habitat loss, climate change, environmental
stochasticity, pesticides and contaminants), were not mentioned or
fully addressed in the Special Managements Considerations or Protection
discussions in the June 10, 2020, proposed and November 22, 2022,
revised proposed rules.
Our Response: The threats included in the discussion under Special
Management Considerations or Protection, below, as well as in the June
10, 2020, proposed and November 22, 2022, revised proposed rules, are
potential threats to the physical and biological features, not threats
directly to the Florida bonneted bat. Additionally, the threats
included in our discussion are not intended to be an exhaustive list.
Additional discussion of threats to the Florida bonneted bat can be
found in the final rule to list the Florida bonneted bat as an
endangered species (78 FR 61004; October 2, 2013) A comprehensive
discussion of current and future threats to the species will be a part
of the species' upcoming recovery plan.
(17) Comment: Several commenters stated that the baseline approach
used by the Service to assess economic impacts, which considers only
impacts solely attributable to the critical habitat designation, is
flawed and severely underestimates costs presented in the DEA.
Commenters further suggested that considering all costs regardless of
whether they are incremental to critical habitat designation, thus
including those costs likely to be incurred to avoid adverse habitat
modification as well as jeopardy to the species, would more accurately
analyze how a critical habitat designation affects property owners.
Our Response: Because the primary purposes of the Service's
economic analysis are to facilitate the mandatory consideration of the
economic impact of the designation of critical habitat, to inform the
discretionary section 4(b)(2) exclusion analysis, and to determine
compliance with relevant statutes and Executive orders, our economic
analysis focuses on the incremental impact of the designation. The
economic analysis of the designation of critical habitat for the
Florida bonneted bat follows this incremental approach. As such, costs
associated with actions that are anticipated to occur regardless of
critical habitat designation for the Florida bonneted bat are not
included.
The Service acknowledges that historically the method for assessing
the economic impact of critical habitat designations has been the
subject of significant debate. The United States Court of Appeals for
the Tenth Circuit in New Mexico Cattlegrowers Ass'n v. FWS, 248 F.3d
1277 (10th Cir. 2001) found that the regulatory definition of the
jeopardy standard fully encompassed the adverse modification standard,
rendering any purported economic analysis done utilizing the baseline
approach, which only considers economic impacts that would not occur
``but for'' the critical habitat, virtually meaningless. For this
reason, the court rejected the baseline approach to economic analysis.
Later, in 2004, the Ninth Circuit (Gifford Pinchot Task Force v. USFWS,
378 F.3d 1059 (9th Cir. 2004)) invalidated the regulatory definition of
``destruction or adverse modification.'' The court held that the
definition gave too little protection to critical habitat by not giving
weight to Congress' intent that designated critical habitat supports
the recovery of listed species. On August 27, 2019, the Service issued
a final rule (84 FR 44976) revising the definition of destruction or
adverse modification in a way that allows the Service to define an
incremental effect of the designation. This process eliminated the
predicate for the Tenth Circuit's analysis and decision. Therefore, the
Service has concluded that it is appropriate to consider the impacts of
designation on an incremental basis. Indeed, no court outside of the
Tenth Circuit has followed New Mexico Cattle Growers since the Ninth
Circuit issued Gifford Pinchot Task Force and the Service revised its
definition of ``destruction or adverse modification.''
Most recently, the U.S. Ninth Circuit Court of Appeals upheld the
incremental approach as lawful explaining that ``the very notion of
conducting a cost/benefit analysis is undercut by incorporating in that
analysis costs that will exist regardless of the decision made.''
Further, when the plaintiffs filed a petition for writ of certiorari
asking the U.S. Supreme Court to specifically answer the question of
whether the government is required to ``analyze all of the economic
impacts of `critical habitat' designation (regardless of whether the
impacts are co-extensive with, or cumulative of, other causes), as the
Tenth Circuit decided, or instead only those impacts for which
`critical habitat' designation is a `but for' cause, as the Ninth
Circuit decided,'' the Supreme Court declined to hear the case (Home
Builders Association of Northern California v. United States Fish and
Wildlife Service, 616 F.3d 983 (9th Cir. 2010), cert. denied, 179 L. Ed
2d 301, 2011 U.S. Lexis 1392, 79 U.S.L.W. 3475 (2011); citing Arizona
Cattle Growers v. Salazar, 606 F.3d 1160 (9th Cir. 2010), cert. denied,
179 L. Ed. 2d 300, 2011
[[Page 16633]]
U.S. Lexis 1362, 79 U.S. L.W. 3475 (2011)). Subsequently, on August 28,
2013, the Service issued a final rule (78 FR 53058) revising its
approach to conducting impact analyses for designations of critical
habitat, specifying that we will compare the impacts with and without
the designation (50 CFR 424.19(b)).
(18) Comment: Several commenters stated concerns that critical
habitat designation for the Florida bonneted bat will alter land
management, development, and conservation activities and will result in
economic impacts that are not included or are underestimated in the
DEA. Commenters specifically cited concerns that the costs that private
entities incur during section 7 consultation (e.g., biologist and
consultant fees, project modifications and mitigation, costs associated
with permit and project delays) and potential increased litigation risk
are a significant economic burden.
Our Response: Section 4 of the economic analysis (IEc 2021a, pp.
22-25) outlines the substantial baseline protections currently afforded
the Florida bonneted bat throughout areas in the revised proposed
critical habitat designation. These baseline protections result from
the listing of the Florida bonneted bat under the Act and the presence
of the species in all critical habitat units, as well as overlap with
habitat of other, similar listed species and designated critical
habitat. Specifically, once a species is listed as endangered or
threatened, section 7 of the Act requires Federal agencies to consult
with the Service to ensure that the actions they authorize, fund, or
carry out will not jeopardize the continued existence of the species,
even absent critical habitat designation. For designated critical
habitat, section 7 also requires Federal agencies to ensure that their
actions will not destroy or adversely modify critical habitat. Thus, a
key focus of the economic screening analysis is evaluating whether the
designation of critical habitat would trigger project modifications to
avoid adverse modification that would be above and beyond modifications
that would already have been undertaken to avoid adverse effects to the
species itself. The jeopardy analysis conducted as part of consultation
would focus on the same impacts that an adverse modification standard
analysis would because threats to the Florida bonneted bat are habitat-
related (e.g., removal, fragmentation, or degradation of habitat due to
construction, development, or climate change). Under those
circumstances, project modifications or conservation measures would
likely be required to address the species, regardless of whether there
is designated critical habitat, because of the effects on the species.
Therefore, it is unlikely that an analysis would identify a difference
between measures needed to avoid the destruction or adverse
modification of critical habitat from measures needed to avoid
jeopardizing the species. Thus, the designation of critical habitat is
unlikely to generate recommendations for additional project
modifications in occupied areas. As such, we do not forecast any
incremental costs associated with project modifications that would
involve additional conservation efforts resulting from this critical
habitat designation. Incremental costs include additional time for the
Service, action agencies, and third parties to participate in
consultations related to designated critical habitat for the Florida
bonneted bat.
The Service makes its decision whether to specify any particular
area as critical habitat based on the best available science after
taking into consideration the economic impact, the impact on national
security, and any other relevant impact. We do not consider the costs
of litigation surrounding the critical habitat rule itself when
considering the economic impacts of the rule. The extent to which
litigation could increase the costs of a critical habitat designation
is purely speculative and inappropriate for consideration.
(19) Comment: Several commenters stated that the number of actions
that would be affected by the designation of critical habitat for the
Florida bonneted bat, and thus the costs associated with those actions,
may be larger than estimated in the DEA. Commenters specifically stated
that the number of consultations associated with private projects that
require Federal authorization (e.g., those triggering consultation
under section 404 of the Clean Water Act, 33 U.S.C. 1251 et seq.) are
underestimated in the DEA.
Our Response: The economic analysis forecasts the likely number of
future section 7 consultation actions based on the number of
consultations for the Florida bonneted bat that have occurred since its
listing in 2013 and information from the Service about likely future
actions in particular units. The analysis also incorporates information
provided by several government agencies, as well as by several public
commenters, into the forecast of the number of likely actions that will
require section 7 consultation. Specifically, the analysis incorporates
information from the National Park Service, the U.S. Army Corps of
Engineers, the Florida Department of Transportation, the Service's
Southwest Florida Refuge Complex, the Miccosukee Tribe of Florida, the
Seminole Tribe of Florida, Florida Power and Light (FPL), and other
commenters. By adding the number of annual consultations based on the
historical rate to the specific known actions and actions identified
through commenter input, our estimate of the number of future
consultation actions is likely to be overstated because some of these
actions would have also been captured in the historical number of
consultations. Also, see our response to (18) Comment, regarding the
substantial baseline protections currently afforded the Florida
bonneted bat throughout areas in the revised proposed critical habitat
designation.
(20) Comment: Several commenters stated that the DEA underestimates
the effect of the designation of critical habitat for the Florida
bonneted bat on private land values, primarily because it does not
account for the full perceptional effects of designating critical
habitat.
Our Response: Section 5 of the economic analysis discusses the
possible perceptional effects of the proposed designation on private
property values. Specifically, this section of the economic analysis
discusses comments and concerns submitted in response to previous
critical habitat rulemakings that the designation of critical habitat
may affect the value of a private property due to the public perception
that the Act may preclude, limit, or slow development or somehow alter
the highest and best use of the property. The analysis acknowledges
that incremental costs from public perception of the critical habitat
designation for Florida bonneted bat could be possible. As stated in
the analysis, public attitudes and concerns about the regulatory
effects of the Act can cause real economic effects to the owners of
property, regardless of whether such concerns and effects are actually
realized. Over time, as public awareness grows with respect to the role
of critical habitat and the impacts of a critical habitat designation,
particularly where no Federal nexus compelling a section 7 consultation
exists, concerns regarding the effect of critical habitat designation
on properties may subside.
While existing economic literature and prior public comments on
previous designations suggest that costs may result from public
perception about how critical habitat may affect private lands, given
the differences in circumstances, including varying species, geographic
[[Page 16634]]
locations, public attitudes, and potential for a Federal nexus, we lack
the ability to calculate costs associated with public perception in a
manner that does not require extensive speculation. Additionally, we
are unable to estimate the magnitude of perception-related impacts to
property values likely to result from this designation. We are unable
to do this due to existing data limitations regarding the probability
that such effects will occur, the likelihood of perception effects
above and beyond those associated with the listing, and the presence of
other co-occurring listed species and designated critical habitats.
(21) Comment: In response to the June 10, 2020, proposed rule, one
commenter stated that the Service should account for and incorporate
planned land use changes in the economic impacts of critical habitat
designation considered in the DEA.
Our Response: Planned land use changes were considered and
incorporated into our economic analysis of this critical habitat
designation. Section 3 of the economic analysis forecasts section 7
consultations based on data on past consultation efforts for the
Florida bonneted bat in or near proposed critical habitat areas and
identifies known or probable projects in proposed critical habitat that
may affect critical habitat designation or require consultation under
section 7 of the Act. Known or probable projects were identified based
on information we received from Federal agencies during the development
of the incremental effects memorandum (IEM) and from the public in
response to the June 10, 2020, proposed rule. In addition, public
comments we received on the proposed rule from FPL, Collier Enterprises
Management, and a number of other interested parties provided
information about potential effects of the critical habitat designation
for Florida bonneted bat on ongoing activities. We used this
information, as well as comments from Federal and State agencies, to
forecast the number of consultations that will occur for the Florida
bonneted bat in proposed critical habitat areas over the next 10 years.
Information we received during the public comment period for the
November 22, 2022, revised proposed rule about potential effects of
critical habitat designation for Florida bonneted bat on ongoing
activities was also considered in our analysis of the probable
incremental economic impacts of this critical habitat designation.
(22) Comment: One commenter stated that the DEA fails to account
for private development on county-owned leased lands in the Miami-Dade
Rocklands Unit (Unit 9) and thus does not adequately estimate
incremental costs, including those associated with perceptional
effects, associated with private development on county-owned leased
lands.
Our Response: We appreciate the information the commenter submitted
with respect to Unit 9. We did consider potential activity on all areas
within this unit, including county-owned leased lands, when evaluating
the economic impacts. Because the primary purposes of the economic
analysis are to facilitate the mandatory consideration of the economic
impact of the designation of critical habitat, to inform the
discretionary section 4(b)(2) exclusion analysis, and to determine
compliance with relevant statutes and Executive orders, the economic
analysis focuses on the incremental impact of the designation. The
economic analysis of the designation of critical habitat for the
Florida bonneted bat follows this incremental approach. Based on the
consultation history and public and agency comments, the economic
analysis anticipates that approximately 2 formal consultations, 15
informal consultations, and 3 technical assistance efforts will occur
in the Miami-Dade Rocklands Unit that will consider Florida bonneted
bat critical habitat during the next 10 years, or approximately 2
consultation actions annually. These forecasted consultations are not
specific to particular landowners and may include county-owned lands.
Critical habitat would only affect a private development project on
county-owned leased lands if there were a Federal nexus for the project
or the designation of critical habitat triggered regulatory compliance
under State or local laws. We are aware of Miami-Dade County approving
a long-term lease for lands within Unit 9. Because this area is
considered occupied for Florida bonneted bat and co-occurs with other
listed species and their critical habitats, should there be a Federal
nexus for a project conducted on these lands, the incremental economic
impact as a result of this critical habitat designation would be
limited to minor additional administrative economic costs due to the
additional analysis required for the destruction or adverse
modification analysis.
As the commenter notes, the economic analysis specifically
discusses perception-related impacts as related to privately owned
lands. Perception-related effects are also possible for county-owned
lands that may be leased to private developers. However, for the
reasons discussed above (see our response to (20) Comment), we are
unable to estimate the magnitude of perception-related impacts to
property values that may result from this designation.
(23) Comment: In response to the June 10, 2020, proposed rule,
Collier Enterprises Management, Inc. requested that we exclude the
lands within the boundary of the draft East Collier Multiple Species
Habitat Conservation Plan (HCP), totaling 3,772 ac (1,526 ha) within
Units 5 and 6 of the revised proposed designation.
Our Response: We listed this exclusion request in table 2 of the
revised proposed rule (87 FR 71466, November 22, 2022, pp. 71481-
71482); however, we did not conduct an analysis to determine whether
the benefits of potentially excluding any specific area outweigh the
benefits of including that area under section 4(b)(2) of the Act
because this HCP was withdrawn prior to the publication of this final
rule.
(24) Comment: In response to the June 10, 2020, proposed rule,
Aliese Priddy, JB Ranch I, LLC, requested that we exclude the property
owned by JB Ranch I, LLC, and Sunniland Family Limited Partnership
lands. In addition, Miami-Dade Limestone Products Association requested
that we exclude lands overlapping the Florida legislature-designated
Lake Belt mining area.
Our Response: We listed these exclusion requests in table 2 of the
revised proposed rule (87 FR 71466, November 22, 2022, pp. 71481-
71482), and we noted that these requests do not overlap with the
revised proposed designation for the Florida bonneted bat. In this
final rule, we did not conduct an analysis to determine whether the
benefits of potentially excluding these specific areas outweigh the
benefits of including them under section 4(b)(2) of the Act because the
lands identified in these requests do not overlap with the final
critical habitat designation.
(25) Comment: In response to the June 10, 2020, proposed and
November 22, 2022, revised proposed rules, several commenters requested
that broad areas of land (e.g., all private property; all currently
operating cattle ranches, associated rights-of-way, and access points
within proposed critical habitat; all Federal and other publicly owned
lands; entire proposed critical habitat units; and/or all proposed
critical habitat) be excluded from designation because of economic and
regulatory burdens. Commenters expressed concerns that critical habitat
designation would restrict or prevent
[[Page 16635]]
actions from proceeding on those lands. One commenter supported their
request for exclusion by stating that our approach for assessing the
economic impacts of critical habitat designation was flawed and
advocated for a coextensive approach. One commenter further stated that
all Federal and publicly owned lands should be excluded from the
critical habitat designation because the Service has not demonstrated
that exclusion of all lands from critical habitat will result in the
extinction of the Florida bonneted bat.
Our Response: We considered these requests according to our 2016
section 4(b)(2) policy, which outlines measures we consider when
excluding any areas from critical habitat. The commenters provided
general statements of their desire to be excluded but provided no
specific information about the economic impacts or reasoned rationale
about the benefits of excluding any specific areas. To properly
evaluate an exclusion request, the commenters must provide information
concerning the economic impacts of the designation, and hence the need
for exclusion. Thus, we did not conduct an analysis to balance or weigh
the benefits of excluding the areas against the benefits of including
the areas in the critical habitat designation. Neither the Act nor the
implementing regulations at 50 CFR 424.19 requires the Secretaries of
the Interior and Commerce (Secretaries) to conduct a discretionary
section 4(b)(2) exclusion analysis (see, e.g., Cape Hatteras Access
Preservation Alliance v. DOI, 731 F. Supp. 2d 15, 29-30 (D.D.C. 2010)).
Rather, the Secretaries have discretion as to whether to conduct that
analysis. If the Secretary decides not to consider exclusion of any
particular area, no additional analysis is required.
Regarding the concern that the critical habitat designation would
restrict or prevent actions, the requirement to consult with us on
actions with a Federal nexus that may affect designated critical
habitat is designed to allow actions to proceed while avoiding
destruction or adverse modification of critical habitat, as further
discussed in our responses to (9) Comment and (18) Comment.
Regarding the concern that our approach for assessing the economic
impacts is flawed, the economic analysis for the designation of
critical habitat for the Florida bonneted bat follows an incremental
approach, which has been upheld by the courts, as further discussed in
(17) Comment.
Regarding one commenter's assertion that all critical habitat
should be excluded because this would not result in extinction of the
species, we are mandated by the Act to designate critical habitat for
listed species, to the maximum extent prudent and determinable. The Act
does not require us to exclude lands from the designation if that
exclusion would not result in the extinction of the species. Rather,
the Secretary of the Interior (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 designate such area as critical habitat will result in the
extinction of the species (see Consideration of Impacts under Section
4(b)(2) of the Act, below). As stated earlier in this comment response,
because the commenter did not provide specific information or reasoned
rationale about the benefits of excluding any specific areas, we chose
not to conduct an analysis to balance or weigh the benefits of
excluding the areas against the benefits of including the areas in the
critical habitat designation.
(26) Comment: In response to the November 22, 2022, revised
proposed rule, Miami-Dade County requested that we exclude the 327 ac
(132 ha) of the developed footprint of Zoo Miami due to concerns that
including this area in the critical habitat designation would prevent
the zoo from conducting activities needed to adhere to Association of
Zoos and Aquariums (AZA) accreditation standards. The commenter
expressed concern that if they were not able to meet AZA standards,
they could lose their AZA accreditation, which impacts the zoo's
economic capacity.
Our Response: We appreciate our partners' efforts to conserve
wildlife and inspire stewardship for local wildlife as well as species
around the world. We considered this request for exclusion according to
our 2016 section 4(b)(2) policy, and we consulted with AZA
accreditation experts and reviewed the AZA accreditation standards and
related policies (AZA 2024, entire).
Because a focus on conservation and active stewardship of the
natural environment, including wildlife, is part of the accreditation
process and standards (AZA 2024, pp. 6, 12, 27-28), it is reasonable to
assume that a demonstrated commitment to supporting the conservation of
an endangered species, such as the Florida bonneted bat, would benefit
an organization seeking accreditation.
Human-altered areas such as buildings or pavement without any type
of vegetation that could provide roosting habitat or support insect
populations that provide prey for the Florida bonneted bat may not
possess the physical and biological features essential to the
conservation of the species and would not meet the definition of
critical habitat. These areas are ``excluded by text'' from the
designation. However, the Zoo Miami property does include areas that
contain the physical and biological features essential to the
conservation of the Florida bonneted as well as features essential to
five other species with designated critical habitat within the Zoo
Miami area.
Also, critical habitat designations do not affect activities by
private landowners unless projects have a Federal nexus (e.g., on
Federal property, using Federal funding, authorized or carried out by a
Federal agency). Furthermore, any regulatory burden related to updating
or improving exhibits or expanding the developed areas of Zoo Miami to
maintain accreditation would be associated with the species' listing,
not the critical habitat designation. Therefore, since the designation
of critical habitat is unlikely to have a negative effect on the
ability of Zoo Miami to continue AZA accreditation and any foreseen
regulatory burden would be purely associated with listing, we did not
conduct an analysis to determine whether the benefits of potentially
excluding any specific area outweigh the benefits of including that
area under section 4(b)(2) of the Act. Neither the Act nor the
implementing regulations at 50 CFR 424.19 require the Secretaries to
conduct a discretionary 4(b)(2) exclusion analysis (see, e.g., Cape
Hatteras Access Preservation Alliance v. DOI, 731 F. Supp. 2d 15, 29-30
(D.D.C. 2010)). Rather, the Secretaries have discretion as to whether
to conduct that analysis. If the Secretary decides not to consider
exclusion of any particular area, no additional analysis is required.
(27) Comment: We received comments from the Division of Charlotte
County Mosquito Control and the Collier Mosquito Control District
requesting that the areas of critical habitat overlapping their
respective mosquito control districts be excluded from critical
habitat; we also received comments expressing concern about designating
the portions of Lee, Collier, and Charlotte Counties for which taxes
fund mosquito control services. Commentors expressed concerns that the
designation of critical habitat would restrict their ability to conduct
mosquito control practices within critical habitat, resulting in
negative impacts to public health, suppression of economic growth, and
reductions in land value.
[[Page 16636]]
Our Response: We considered this request for exclusion under our
2016 section 4(b)(2) policy. No specific information was provided to
enable us to conduct an analysis to balance or weigh the benefits of
excluding the areas against the benefits of including the areas in the
designation. Therefore, we did not conduct an analysis to determine
whether the benefits of potentially excluding any specific area
outweigh the benefits of including that area under section 4(b)(2) of
the Act. Neither the Act nor the implementing regulations at 50 CFR
424.19 require the Secretaries to conduct a discretionary section
4(b)(2) exclusion analysis (see, e.g., Cape Hatteras Access
Preservation Alliance v. DOI, 731 F. Supp. 2d 15, 29-30 (D.D.C. 2010)).
Rather, the Secretaries have discretion as to whether to conduct that
analysis. If the Secretary decides not to consider exclusion of any
particular area, no additional analysis is required.
The lands included in this critical habitat designation are all
considered occupied by the Florida bonneted bat. Therefore, regardless
of any critical habitat designation, activities that may take Florida
bonneted bat are subject to prohibitions under section 9 of the Act. We
would recommend protective measures be established for the Florida
bonneted bat regardless of critical habitat designation within mosquito
control districts because of potential impacts to the species, but this
critical habitat designation does not limit or stop mosquito control
operations or reduce efforts to protect communities from mosquito-borne
viruses.
(28) Comment: Miami-Dade County and several other commenters
requested clarification regarding the areas that are excluded from
designation ``by text,'' specified at paragraph (3) in the regulatory
text of the critical habitat designation for the Florida bonneted bat,
and what meets the characteristics of natural habitats at the time of
critical habitat designation. Commenters also stated their views that
some areas within Unit 9 in the November 22, 2022, revised proposed
designation should not be included in the final designation because
they should be considered developed or because they do not contain the
physical or biological features essential for the conservation of the
species.
Our Response: As specified at paragraph (3) of the regulatory text
in this rule (see Regulation Promulgation, below), critical habitat
does not include human-made structures (such as buildings, aqueducts,
runways, roads, and other paved areas) and the land on which they are
located. These types of structures and lands that are within critical
habitat units on the effective date of this final rule (see DATES,
above) are excluded from designation ``by text.'' Areas within
delineated critical habitat units that (1) are not human-made
structures or the land on which they are located and (2) include any of
the physical or biological features essential to the conservation of
the Florida bonneted bat are designated critical habitat. These areas
could include human-altered areas such as areas near buildings or
pavement with any type of vegetation that could provide roosting
habitat or could support insect populations that provide prey for the
Florida bonneted bat. Where specific areas were identified by
commenters, we evaluated and determined that removal from the final
designation was not appropriate or required because the areas would
already be excluded from the designation under paragraph (3) of the
regulatory text or because they have at least one physical or
biological feature essential to the conservation of the species that
requires special management considerations or protection (and, thus, do
meet our criteria for designating critical habitat). Questions
regarding whether other specific areas are included in the designation
should be directed to the Service (see FOR FURTHER INFORMATION
CONTACT). Even absent critical habitat designation, Federal agencies
are still required to consult with the Service if any action they
authorize, fund, or carry out may affect listed species, so impacts to
Florida bonneted bats using these areas may still be considered during
consultations for effects to the species.
(29) Comment: One commenter requests an explanation of how the
State of Florida's assumption of permitting authority under section 404
of the Clean Water Act program affects the consideration of critical
habitat in reviews of projects or actions impacting Florida bonneted
bats.
Our Response: Consistent with the biological opinion, which is
titled, ``U.S. Environmental Protection Agency's Approval of Florida
Department of Environmental Protection's Assumption of the
Administration of the Dredge and Fill Permitting Program under Section
404 of the Clean Water Act'' (Service 2020, entire), and a memorandum
of understanding between the Service, Florida Department of
Environmental Protection (FDEP), and Florida Fish and Wildlife
Conservation Commission (FWC), we provide technical assistance to FDEP
to ensure that no State 404 permit action jeopardizes the continued
existence of federally listed species or adversely modifies or destroys
critical habitat, pursuant to 40 CFR 233.20(a). We continue to consult
with the U.S. Army Corps of Engineer on permits they issue pursuant to
section 404 of the Clean Water Act.
(30) Comment: One commenter stated that the Service should prepare
an environmental impact statement to comply with the National
Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.) for every
Federal action significantly affecting the quality of the human
environment. The commenter also stated that the Service should have
included an initial regulatory flexibility analysis with the proposed
rule to comply with the Regulatory Flexibility Act (RFA; 5 U.S.C. 601
et seq.). The commenter further stated that the Service has not
accurately represented the significant impact that this critical
habitat rule will have on a substantial number of small entities.
Our Response: It is our position that, outside the jurisdiction of
the U.S. Court of Appeals for the Tenth Circuit, we do not need to
prepare environmental analyses pursuant to NEPA in connection with
designating critical habitat under the Act. We published a notice
outlining our reasons for this determination in the Federal Register on
October 25, 1983 (48 FR 49244). This position was upheld by the U.S.
Court of Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48
F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)).
Therefore, it is appropriate that we did not prepare an environmental
impact statement for this designation of critical habitat. See also
National Environmental Policy Act (42 U.S.C. 4321 et seq.), below.
As required by the RFA, we evaluated the potential incremental
impacts of rulemaking on those entities directly regulated by the
rulemaking itself. Under section 7 of the Act, only Federal action
agencies are directly subject to this specific regulatory requirement
imposed by critical habitat designation. 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. See Regulatory
Flexibility Act (5 U.S.C. 601 et seq.), below, for more detail.
(31) Comment: In response to the November 22, 2022, revised
proposed critical habitat rule, two commenters noted that the
information necessary to evaluate the impacts of critical habitat
(e.g., Florida Bonneted Bat Consultation Guidelines, shapefile for
critical habitat maps) were not available or difficult to
[[Page 16637]]
obtain during the comment period for the revised proposed rule, thus
making it difficult to fully review and provide comment on the revised
proposed rule.
Our Response: We agree that sharing the supporting documents for
proposed rules during the comment period is important for providing the
public the ability to fully review and comment on a proposed rule.
During the comment period for the November, 22, 2022, revised proposed
critical habitat rule, all supporting documents, with the exception of
shapefiles (which are not supported by the platform), were made
available at https://www.regulations.gov under Docket No. FWS-R4-ES-
2019-0106, as noted in the revised proposed rule (87 FR 71466; November
22, 2022). During the comment period for the November 22, 2022, revised
proposed rule, the Florida Ecological Services Field Office website was
undergoing updates, and we were unable to make some information
directly available from the office website, although much of it was
available in the docket for the revised proposed rule on https://www.regulations.gov. However, the November 22, 2022, revised proposed
rule also provided our contact information to the public for questions,
and we did, upon being contacted, provide the link to the critical
habitat shapefile directly to the commenter and all other individuals
and partners who requested this information.
(32) Comment: In response to the November 22, 2022, revised
proposed critical habitat rule, one commenter suggested that the
Service should be more transparent with the data we consider in the
designation of critical habitat, making data and information publicly
accessible unless we risk compromising sensitive information and
sharing peer reviews we receive on proposed rules.
Our Response: We agree that transparency is important and always
strive to share with the public the information that supports our
proposed and final rules where prudent to do so. As noted in (31)
Comment, we made supporting documents publicly available concurrent
with the publication of the June 10, 2020, proposed and November 22,
2022, revised proposed rules, with the exception of shapefiles, which
we shared upon request. Included in these supporting documents were the
DEA, conservation strategy, a list of conservation lands that overlap
with the proposed designation, conservation and natural resource
management plans for areas we were considering for exclusion, a summary
of the habitat analysis conducted to inform delineation of the revised
proposed critical habitat units, and a list of all literature cited in
the rule with references available as attachments. The Florida Bonneted
Bat Conservation Strategy provides a technical foundation for recovery
strategies, summarizing the best scientific data available concerning
the status of the species and threats affecting the species, and
outlines objectives for achieving recovery of the Florida bonneted bat.
This document was prepared based on input and information from
researchers and species experts. Additionally, we have provided the
Recovery Outline for Florida Bonneted Bat (Eumops floridanus) (see
Supporting and Related Material in Docket No. FWS-R4-ES-2019-0106 on
https://www.regulations.gov) concurrent with publication of this final
rule. The recovery outline is a brief document that broadly sketches
the interim conservation and management program for the Florida
bonneted bat during the time between the species' final listing under
the Act and completion of a recovery plan.
We also agree that it is important to provide the public access to
the peer review responses we receive on proposed rules. In accordance
with our joint policy on peer review published in the Federal Register
on July 1, 1994 (59 FR 34270), we summarize peer review in this final
rule. Prior to the publication of the November 22, 2022, revised
proposed rule, we also shared all peer review comments on the June 10,
2020, proposed rule and the accompanying conflict of interest forms
completed by the peer reviewers; these peer reviews and conflict of
interest forms were made available at https://www.regulations.gov under
Docket No. FWS-R4-ES-2019-0106 on September 29, 2020. Concurrent with
the publication of this final rule, we have made available the most
recent peer review and accompanying completed conflict of interest form
on the revised proposed critical habitat rule at https://www.regulations.gov under Docket No. FWS-R4-ES-2019-0106.
(33) Comment: In response to the November 22, 2022, revised
proposed critical habitat rule, we received two comments that raised
concerns that the peer review of the proposed rule was flawed,
specifically, that there were not enough reviewers, reviewers were
unqualified, and that a peer reviewer had an undisclosed conflict of
interest.
Our Response: The Service has long been committed to the use of
best available science in decision[hyphen]making and to the use of peer
review to improve such science. The Service solicited independent
scientific reviews of both the June 10, 2020, proposed and November 22,
2022, revised proposed rules in accordance with our joint policy on
peer review (59 FR 34270; July 1, 1994), and our August 22, 2016,
memorandum updating and clarifying the role of peer review of listing
actions under the Act.
The policy and memo direct us to solicit an independent scientific
review from a minimum of three reviewers; accordingly, we sent the June
10, 2020, proposed critical habitat rule to six reviewers and the
November 22, 2022, revised proposed critical habitat rule to five
reviewers. In response, we received two reviews of the June 10, 2020,
proposed rule and one review of the November 22, 2022, revised proposed
rule.
As directed in our August 22, 2016, memorandum, we selected
qualified reviewers with, ``expertise and/or experience relevant to the
scientific questions and determinations addressed in our actions.''
Peer reviewers were selected based on their ability to act as an
independent reviewer and on their expertise related to the Florida
bonneted bat and its habitat and threats. Peer reviewers were asked to
review the science applied to the June 10, 2020, proposed and November
22, 2022, revised proposed critical habitat rules, and the peer reviews
they submitted did indeed focus on critique of the science rather than
policy. One peer reviewer who provided comments on the June 10, 2020,
proposed rule is a Service employee but does not work within Florida,
did not contribute otherwise to the development of this rule, and is a
subject matter expert (bats); thus, we think this person meets the
standards set forth by our peer review policy and clarified in our
August 22, 2016, memorandum. Additionally, we solicited peer review
from five other external experts.
Per our August 22, 2016, memorandum, peer reviewers were required
to complete a conflict of interest form, and we assessed potential
conflicts of interest by examining financial and business relationships
and consulting arrangements, using applicable standards issued by the
Office of Government Ethics. As noted in our August 22, 2016,
memorandum, ``Divulging a conflict of interest does not invalidate the
comments of the reviewer; however, it will allow for transparency to
the public regarding the reviewer's possible biases or associations.''
In instances where a reviewer has a substantial conflict of interest,
we will evaluate their comments in light of that conflict;
[[Page 16638]]
however, we did not determine that any of the three peer reviewers who
submitted comments on the two proposed rules have a substantial
conflict of interest.
(34) Comment: Several commenters suggested that the Service should
notify private landowners if their land overlaps a proposed critical
habitat designation.
Our Response: We strive for good communication with the public,
including communicating our intent to designate critical habitat and
making available proposed critical habitat rules, which include the
specific locations where critical habitat is proposed. Section 4(b)(5)
of the Act requires us to, not less than 90 days before the effective
date of the regulation, publish a general notice and the complete text
of the proposed regulation in the Federal Register. For the June 10,
2020, proposed and November 22, 2022, revised proposed critical habitat
rules for the Florida bonneted bat, we notified the public via
publication in the Federal Register on June 10, 2020 (85 FR 35510), and
November 22, 2022 (87 FR 71466), respectively. On June 9, 2020, we
posted a press release notifying the public of the publication of the
June 10, 2020, proposed critical habitat rule on our Regional website,
and on November 21, 2022, we also posted a press release notifying the
public of the publication of the November 22, 2022, revised proposed
critical habitat rule at https://www.fws.gov/press-release/2022-11/florida-bonneted-bat. For the June 10, 2020, proposed rule, newspaper
notices inviting general public comment were published in the Orlando
Sentinel, Ft. Myers News-Press, Sarasota Herald Tribune, and Miami
Herald newspapers. For the November 22, 2022, revised proposed rule, a
newspaper notice inviting general public comment was again published in
the Miami Herald newspaper. For the proposed and revised proposed
rules, we also disseminated notice of the publication on various social
media platforms, including Twitter and Facebook, and sent notices to
several interested parties, including nongovernmental organizations and
interested industry and property-holding entities. Accordingly, we make
every attempt to ensure the public is well-informed of proposed
regulations that may affect it.
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. Critical habitat is defined in
section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Our regulations at 50 CFR 424.02 define the geographical area
occupied by the species as an area that may generally be delineated
around species' occurrences, as determined by the Secretary (i.e.,
range). Such areas may include those areas used throughout all or part
of the species' life cycle, even if not used on a regular basis (e.g.,
migratory corridors, seasonal habitats, and habitats used periodically,
but not solely by vagrant individuals).
Conservation, as defined under section 3 of the Act, means to use
and the use of all methods and procedures that are necessary to bring
an endangered or threatened species to the point at which the measures
provided pursuant to the Act are no longer necessary. Such methods and
procedures include, but are not limited to, all activities associated
with scientific resources management such as research, census, law
enforcement, habitat acquisition and maintenance, propagation, live
trapping, and transplantation, and, in the extraordinary case where
population pressures within a given ecosystem cannot be otherwise
relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the requirement that Federal agencies ensure, in consultation
with the Service, that any action they authorize, fund, or carry out is
not likely to result in the destruction or adverse modification of
critical habitat. The designation of critical habitat does not affect
land ownership or establish a refuge, wilderness, reserve, preserve, or
other conservation area. Such designation 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 developed during the listing process for the species.
Additional information sources
[[Page 16639]]
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, 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 include, but are not limited to, space
for individual and population growth and for normal behavior; cover or
shelter; sites for breeding, reproduction, or rearing (or development)
of offspring; food, water, air, light, minerals, or other nutritional
or physiological requirements; and habitats with appropriate
disturbance regimes (for more information, see the October 4, 2012,
proposed rule to list the Florida bonneted bat (77 FR 60750), and the
Florida Bonneted Bat Conservation Strategy (see Supporting and Related
Material in Docket No. FWS-R4-ES-2019-0106 on https://www.regulations.gov)). We summarize below the more important habitat
characteristics, particularly those that support the description of
physical or biological features essential to the conservation of the
Florida bonneted bat. We also consider these habitat features relative
to the scale at which Florida bonneted bats use the features, allowing
us to more logically organize the physical or biological features to
delineate the critical habitat.
Space for Individual and Population Growth and for Normal Behavior
Due to the spatial variability of its prey, its large size, and its
wing morphology, the Florida bonneted bat has significant spatial needs
for foraging. Insect abundance, density, and community composition
frequently vary across space and over time based on season and
environmental conditions. As a result of this spatial variability,
Florida bonneted bats may need to travel far distances and feed over
large areas to satisfy dietary needs. For example, Florida bonneted
bats from Babcock-Webb WMA, on average, traveled 9.5 miles (mi) (15
kilometers (km)) from their roosts and flew 24 mi (39 km) total per
night (Webb et al. 2018, p. 8; Webb 2018, pers. comm.). These bats also
traveled maximum distances of more than 24 mi (39 km) from their roosts
and more than 56 mi (90 km) total in one night (Webb et al. 2018, p. 8;
Webb 2018, pers. comm.). Florida bonneted bats also require open areas
for foraging due to their large body size and the morphology of their
wings, which are designed for fast and efficient, but less
maneuverable, flight.
This large bat relies on swarms of larger insects for feeding;
thus, foraging habitat for the Florida bonneted bat consists of areas
that hatch and concentrate insects of this size, including vegetated
areas and waterways. These bats are also frequently detected in
agricultural areas and golf courses (Bailey et al. 2017a, entire) and
are known to feed on insects associated with crops (Webb 2018, pp. 12,
61).
Ecologically diverse areas of suitable habitat representing the
geographic extent of the species' range are also important for
population growth and persistence. The major ecological communities
(Myers and Ewel 1990, entire; Service 1999, entire; FNAI 2010, entire)
that provide Florida bonneted bat roosting habitat in central and
southern Florida include: pine rocklands (south Florida rockland,
rockland pine forest, rockland hammock); cypress communities (cypress
swamps, strand swamps, domes, sloughs, ponds); hydric pine flatwoods
(wet flatwoods); mesic pine flatwoods; and high pine. A variety of
other habitats, including agricultural areas, may be used as well
(Bailey et al. 2017a, entire), and freshwater forested
[[Page 16640]]
wetlands, including areas with longer hydroperiods and deeper water,
may be more important to the species than previously thought (FWC and
Fish and Wildlife Research Institute (FWRI) 2023, pp. 15-24). Diverse,
open foraging habitats (e.g., prairies, riverine habitat) are also
important. Adequate roosting and foraging habitats are essential to the
species, as they provide the diversity necessary to allow for
population resiliency following minor disturbances (e.g., loss of roost
tree, cold snap) as well as more significant stochastic events (e.g.,
hurricane, drought, forest disease, climate change).
Structural connectivity (suitable habitat in the form of linear
corridors or patches creating ``stepping stones'') facilitates the
recolonization of extirpated populations; facilitates the establishment
of new populations; and allows for natural behaviors needed for
foraging, exploratory movements, and dispersal. Four genetically
differentiated populations of the Florida bonneted bat have been
identified (Charlotte, Polk/Osceola, Lee/Collier, and Miami-Dade
Counties) (Austin et al. 2022, entire; also see the Florida Bonneted
Bat Conservation Strategy under Supporting and Related Material in
Docket No. FWS-R4-ES-2019-0106 on https://www.regulations.gov). While
dispersal of Florida bonneted bats appears to be geographically
restricted between populations, the geographic extent of the four
genetically differentiated areas is not yet known, and maintaining
structural connectivity to allow for ongoing and future functional
connectivity (i.e., actual movement of animals and/or exchange of
genes) between known populations remains important to the species for
resiliency as well as population stability and growth (Austin et al.
2022, pp. 507-508). Structural connectivity in the form of vegetated
corridors with opportunities for roosting and/or foraging, vegetated
river corridors and other areas with freshwater available year-round,
and habitat patches such as pine rockland fragments and tree islands
are needed to provide and maintain connections between regions where
known Florida bonneted bat populations occur. Maintaining viable
populations in each of the known genetically differentiated areas and
protecting connectivity is necessary for the demographic and genetic
health of the species. Therefore, it is important that this species has
areas of ecologically diverse and connected habitat, including
sufficient amounts of open foraging habitat.
Cover or Shelter
The Florida bonneted bat primarily roosts in tree cavities, either
as individuals or small or large colonies (Ober et al. 2017, p. 378;
Braun de Torrez et al. 2020a, p. 6; 2020b, entire). Roosts provide
protection from sunlight, adverse weather, and predators; sites for
mating, rearing of young, social interaction and information sharing,
resting, and digestion of food; and microclimate stability (Kunz 1982,
entire; Ormsbee et al. 2007, pp. 130-135; Marks and Marks 2008a, p. 4;
Dechmann et al. 2010, pp. 1-7; Bohn 2012, in litt.).
Florida bonneted bat roosts are difficult to locate; only 36
natural roosts have been identified (not all currently occupied), the
first in 2013 (Angell and Thompson 2015, entire; Braun de Torrez et al.
2016, entire; Braun de Torrez et al. 2020b, entire; Braun de Torrez
2021, pers. comm.; Borkholder 2022, pers. comm.; Braun de Torrez 2022,
pers. comm.). Known natural roosts have been documented in the
following tree species: slash pine, longleaf pine, bald cypress, and
royal palm (Braun de Torrez et al. 2020b, entire). A significant
proportion of known roosts are in snags of these tree species (Braun de
Torrez et al. 2020b, entire). One non-volant (flightless) pup was found
at the base of a live oak hours after a tree cavity was bisected
(Ridgley 2020, pers. comm.); it is not known if this tree species is
commonly used as a roost site or may be used particularly where
suitable trees are sparse.
Relative to surrounding trees, Florida bonneted bat roost trees
tend to have greater overall height (average of 58 feet (ft) (17.7
meters (m)) with a range of 34 to 93 ft (10.4 to 28.2 m)), diameter
(average of 15 inch (in) (38 centimeter (cm)) diameter at breast height
(dbh) with a range of 7.4 to 27 in (19 to 69.5 cm) dbh), and canopy
height relative to the surrounding trees (average of 19.8 ft (6 m) with
a range of -2.6 to 49 ft (-0.8 to 15 m)) (Braun de Torrez et al. 2020b,
entire; Hoyt 2023a, b, pers. comm.). The species also appears to
require sufficient unobstructed space for emergence, with cavities high
above the ground (average of 49 ft (14.9 m) with a range of 27.5 to 77
ft (8.4 to 23.5 m)) and roost trees set apart from the nearest tree (by
an average of 12 ft (3.8 m) with a range of 2 to 39 ft (0.6 to 11.9 m))
(Braun de Torrez et al. 2020b, entire; Hoyt 2023a, pers. comm.), often
in open or semi-open canopy and canopy gaps. Cavities may require a
minimum of approximately 27.5 ft (8.4 m) of ground clearance (i.e.,
cavity height above the ground) (Braun de Torrez et al. 2020b, entire;
Hoyt 2023a, pers. comm.); however, there are two instances of Florida
bonneted bats using bat houses with approximately 13 ft (4 m) of ground
clearance in Miami-Dade County (Ridgley 2021, unpublished data).
Collectively, this indicates that this species prefers large trees with
adequate space around the cavity for emergence. Florida bonneted bats
typically roost in cavities made by other species (notably woodpeckers)
or by natural damage caused by fire, storms, or decay.
The Florida bonneted bat is suspected to have high roost-site
fidelity. Some roosts are used for several years by Florida bonneted
bat colonies, possibly decades (Myers 2013, pers. comm.; Scofield
2013a-b, pers. comm.; 2014a-b, pers. comm.; Bohn 2014, pers. comm.;
Gore et al. 2015, p. 183; Angell and Thompson 2015, p. 186; Hosein
2016, pers. comm.; Webb 2017, pers. comm.; B. Myers 2018, pers. comm.;
Aldredge 2019, pers. comm.). Conversely, natural roosts may frequently
succumb to natural causes (i.e., hurricanes, wildfire), resulting in
total loss or too much damage to allow for future roosting. At least 37
percent of the known natural roosts discovered since 2013 are now
uninhabitable (due to decay, hurricanes, and other factors) (Braun de
Torrez et al. 2020b, entire). Suitable roost sites are a critical
resource, are an ongoing need of the species, and may be limiting
population growth and distribution in certain situations. The loss of a
roost site may represent a greater impact to this species relative to
some other bat species (Ober 2012, in litt.).
Florida bonneted bats also roost in artificial structures (e.g.,
homes with barrel-tile roofs, chimneys, barns, hangars, utility poles)
and bat houses (Marks and Marks 2008b, p. 8; Morse 2008, entire; Trokey
2012a-b, pers. comm.; Gore et al. 2015, entire; see Use of Artificial
Structures (Bat Houses) in the final listing rule (78 FR 61004, October
2, 2013, p. 61010)). While artificial roosts can provide valuable
alternative, long-term, and hurricane-resilient roosting habitat for
the species where roosting habitat is limited (Braun de Torrez 2022,
pers. comm.), these are imperfect surrogates for natural roosting
habitat and are not on their own a habitat feature essential for the
species' survival. Therefore, natural roosts (i.e., live or dead trees
and tree snags, especially longleaf pine, slash pine, bald cypress, and
royal palm, taller than 34 ft (10.4 m) and greater than 7.4 in (19 cm)
dbh and having unobstructed space for emergence) are important habitat
characteristics for this species.
[[Page 16641]]
Sites for Breeding, Reproduction, or Rearing (or Development) of
Offspring
Sites supporting the Florida bonneted bats' breeding activities
appear to be required year-round (Timm and Genoways 2004, p. 859; Ober
et al. 2017, p. 382; Bailey et al. 2017b, p. 556; see also Life History
in the final listing rule (78 FR 61004, October 2, 2013, pp. 61005-
61006) and Food, Water, Air, Light, Minerals, or Other Nutritional or
Physiological Requirements, below). Reproductively active adults have
been observed during August, December, and April capture sessions, and
non-volant pups (young not yet capable of flying) have been documented
in roosts in every month other than February and March (Scofield 2014b,
pers. comm.; Angell and Thompson 2015, p. 186; Ridgley 2015, pers.
comm.; Ober et al. 2017, pp. 381, 383;384; Gore 2017, pers. comm.; J.
Myers 2018, pers. comm.; 2020, pers. comm.). Based upon these data,
flightless young bonneted bats and females with high energetic demands
due to pregnancy and lactation may be vulnerable to disturbance for at
least 10 months of the year. Most roosting bats are sensitive to human
disturbance (Kunz 1982, p. 32), and maternity colonies may be
especially intolerant of disturbance (Harvey et al. 1999, p. 13; see
also Inadvertent and Purposeful Impacts from Humans in the final
listing rule (78 FR 61004, October 2, 2013, pp. 61033-61034)).
Florida bonneted bat colonies conform to a harem structure (one
dominant male, several reproductively active females and their young)
with males exhibiting resource defense polygyny (dominant males defend
the roost from other males) (Ober et al. 2017, p. 382; Braun de Torrez
et al. 2020a, pp. 10-12). This type of social organization, together
with evidence of high roost-site fidelity, underscores the importance
of roosts to this species for population maintenance, population
growth, and natural behaviors. Disturbance of a roost at any time can
alter social dynamics and impact reproductive success (Ober et al.
2017, p. 382). Accordingly, areas where roosting and other natural
behaviors can occur undisturbed are important in considering the
conservation of the species.
Food, Water, Air, Light, Minerals, or Other Nutritional or
Physiological Requirements
The Florida bonneted bat's precise foraging habits and long-term
requirements are unknown (Belwood 1992, p. 219). However, because the
species is active year-round and aseasonally polyestrous (i.e., having
more than one period of estrous in a year, not restricted to one
season) (Timm and Genoways 2004, p. 859; Marks and Marks 2008a, p. 9;
Ober et al. 2016, entire), the Florida bonneted bat likely needs
constant and/or multiple sources of prey to support its high
metabolism. Energy demands of the Florida bonneted bat probably
fluctuate seasonally (e.g., assumed higher demands during cold weather
as the species does not have periods of torpor (a state of decreased
physiological activity in an animal, including decreased body
temperature, heart rate, and metabolism)) and during sensitive times
(e.g., maternity, nursery, supporting offspring). The maternity season
is a time of particular sensitivity, with increased energy demands and
risks as females leave young in roosts while making multiple foraging
excursions to support lactation (Kurta et al. 1989a, entire; Kurta et
al. 1990, entire; Kunz et al. 1995, entire; Marks and Marks 2008a, pp.
8-9; Ober et al. 2016, entire). Exploitation of insects in patches that
yield high-energy returns for pregnancy and lactation is important
(Kunz et al. 1995, p. 412). Reduced insect populations in urban areas
may make it difficult for females to successfully raise offspring to
maturity (Kurta et al. 1990, entire; Kurta and Teramino 1992, p. 260).
Most insectivorous bats eat large quantities of insects (Ross 1967,
entire; Black 1974, entire; Kunz 1974, entire; Kunz et al. 1995,
entire; Kurta and Whitaker 1998, entire; Lee and McCracken 2002, pp.
306-313; 2005, entire; Leelapaibul et al. 2005, entire; Kunz et al.
2011, entire). Insectivorous bat activity and diversity are strongly
correlated with arthropod abundance (Racey and Swift 1985, pp. 210-211,
214; Wickramasinghe et al. 2004, entire; Wickramasinghe et al. 2003,
pp. 987-992), suggesting that bats seek out areas of concentrated prey
sources (Kunz et al. 2011, p. 5). Foraging behavior is tied in part to
insect abundance, availability, and density (Anthony and Kunz 1977,
entire; Racey and Swift 1985, p. 212; Wickramasinghe et al. 2003, pp.
987-992; Wickramasinghe et al. 2004, entire). Exploitation of insects
in patches that yield high-energy returns appears to be important for
meeting the energy needs associated with prolonged flights as well as
pregnancy and lactation (Kunz et al. 1995, p. 412). In general, bats
foraging from continuous flight must encounter prey at relatively high
rates and successfully attack many individual items (Fenton 1990, p.
416). Since Florida bonneted bats are thought to employ this feeding
strategy, areas with higher insect abundance, more (multiple) prey
sources, and diverse natural habitats that produce prey diversity are
essential for suitable foraging habitat.
Like other molossids (e.g., Brazilian free-tailed bats (Tadarida
brasiliensis)), the species may be a generalist predator, capable of
opportunistically exploiting available resources (McCracken et al.
2012, entire). Limited information from guano analyses indicates
Florida bonneted bats feed on flying insects of the following orders:
Coleoptera (beetles), Diptera (flies), Hemiptera (true bugs),
Lepidoptera (moths), and Trichoptera (caddisflies) (Belwood 1981, p.
412; 1992, p. 220; Marks 2013, entire; Marks and Marks 2015, pp. 2-3).
Like other large molossids, the Florida bonneted bat's physiological
characteristics (e.g., large size, broad jaws, big teeth, large ears)
and lower frequency echolocation make it well equipped for finding and
taking relatively larger insects and harder prey items (Freeman 1979,
entire; 1981, pp. 166-173; Obrist et al. 1993, entire; Aguirre et al.
2003, p. 207; Timm and Genoways 2004, pp. 855-857; Mora and Torres
2008, p. 12).
It is not clear if insect availability is limiting or sufficient;
however, if the Florida bonneted bat is similar in its needs to other
insectivorous bats, then reduced prey abundance or density could
negatively affect the species, affecting survival, growth, and
reproduction. We find that foraging habitat sufficient to support
insect populations and the seasonal nutritional needs of the bat are
essential to its conservation. Protecting natural habitats conducive to
insect diversity (Marks 2013, p. 2) is also essential to the Florida
bonneted bat's survival.
Sources of drinking water are important for most insectivorous bat
species (Kurta et al. 1989b, entire; 1990, pp. 59, 63; Adams and Hayes
2008, pp. 1, 6). Water sources and wetlands also provide important
sources and concentrations of prey (Belwood and Fenton 1976, entire;
Swift and Racey 1983, entire; Barclay 1991, pp. 174-176; Brigham et al.
1992, entire; Sullivan et al. 1993, entire; Racey et al. 1998, pp. 200-
201; Russo and Jones 2003, pp. 197, 201; Nam et al. 2012, p. 1095;
Wickramasinghe et al. 2004, p. 1289; Fukui et al. 2006, entire).
Water sources (for drinking, prey, and structure) are important
habitat components for the Florida bonneted bat. This species forages
over ponds, streams, and wetlands and drink when flying over open water
(Marks and Marks 2008a, p. 4; 2008c, p. 3). For
[[Page 16642]]
example, in Big Cypress National Preserve the vast majority of Florida
bonneted bat calls were recorded in 2014 at one remote pond surrounded
by wetland forest (Arwood 2014a-c, pers. comm.). At Picayune Strand
State Forest (PSSF), all sites where the species has been detected were
located near canals (Smith 2013, pers. comm.). At Florida Panther
National Wildlife Refuge, the highest detection of Florida bonneted bat
calls occurred in areas with the largest amount of open water (Maehr
2013, pp. 7-11; 2013a-c, pers. comm.). In the Miami area (Richmond pine
rocklands (Zoo Miami, Larry and Penny Thompson Park, and the Martinez
Preserve)), the species has been detected in a variety of habitat
types, but peak activity occurred in areas of artificial freshwater
lakes adjacent to intact pine rocklands (Ridgley 2013a-d, pers. comm.).
We find that open water and wetlands provide drinking water, open
foraging areas, and concentrations of prey that are essential to the
conservation of the species. During dry seasons, bats become more
dependent on remaining ponds, streams, and wetland areas for foraging
purposes, making these precious resources essential (Marks and Marks
2008c, p. 4; 2008d, p. 3). Because the Florida bonneted bat, like other
Eumops, appears to be confined to foraging in open spaces due to its
wing morphology (Norberg and Rayner 1987, pp. 399-400; Voigt and
Holderied 2012, entire), larger water bodies and more open wetlands in
general may be structurally better foraging habitat than smaller, more
confined areas.
The Florida bonneted bat's physiological or behavioral responses to
abiotic factors, such as artificial lighting, have not been
specifically studied; however, some information about other bat
species' responses to artificial lighting is available for closely
related bats and bat species with edge and open space foraging
behaviors, similar to those of the Florida bonneted bat. Although edge
and open space foraging bat species are considered to generally be more
tolerant of artificial lighting than those species foraging in forests,
tolerance to artificial light appears to vary among bat species with
similar foraging strategies and flight techniques (Rowse et al. 2016,
pp. 200-202). Responses to artificial light can vary depending on the
development intensity, land use type, and vegetation community where
artificial light occurs (Rowse et al. 2016, pp. 200-202; Voigt et al.
2020, pp. 190, 197-199). However, even open space foraging species that
are considered to be light-tolerant can be impacted by artificial
light, as evidenced by delays in night-time foraging activity and
reduced abundance at foraging sites (Mariton et al. 2022, pp. 6-8).
Additionally, urban habitats with artificial lights can act as
ecological traps with lower habitat quality for reproduction and
potential for lower survival in bat species that are more frequent or
abundant in urban habitats (Russo and Ancillotto 2015, pp. 209-210).
Artificial light aversion has been documented in other species
closely related to Florida bonneted bat (i.e., within Molossidae and/or
Eumops) (Jung and Kalko 2010, pp. 147-148; Mena et al. 2022, pp. 568-
571). Despite increases in research of Florida bonneted bat ecology
since the species' listing in 2013, there has been no evidence that
Florida bonneted bats exploit artificial light sources, and the highest
Florida bonneted bat activity within an urban matrix has been
associated with large, dark, open areas with tree cover (Bat
Conservation International 2022, p. 18; Ridgley 2023, unpublished data;
Ridgley and Gamba-Rios 2023, unpublished data). Artificial lighting has
been demonstrated to also have broadscale negative effects on insects
and insect populations (e.g., reduced abundance; altered larval
development, reproduction, and other behaviors) (van Grunsven et al.
2020, entire; Boyes et al. 2021, entire; Pennisi 2021, entire),
potentially reducing the availability of prey (Mariton et al. 2022, pp.
2, 7) and the quality of foraging habitat for Florida bonneted bats. In
addition to effects on foraging habitat, artificial lighting can impact
roosting habitat quality because light at emergence is thought to
disrupt emergence cues and increase predation risk (or perceived
predation risk) at emergence for other open-space-foraging and
insectivorous bats (Rydell et al. 1996, pp. 249, 251; Mariton et al.
2022, p. 8). Therefore, areas where roosting, foraging, and other
natural behaviors, such as commuting, can occur with limited or no
impacts from artificial light are important in considering the
conservation of the species.
Similarly, temperature requirements and tolerances for the Florida
bonneted bat are not fully understood. The species is active year-round
and considered semi-tropical (Ober et al. 2016, entire). Florida
bonneted bats have been detected in Polk and Osceola Counties (Bailey
et al. 2017a, p. 1589), but future surveys in additional counties are
needed to help determine the limit of the northern extent of the range.
There are low probabilities of occurrence of bonneted bats in areas
where historical mean minimum temperatures dropped below 15 degrees
Celsius ([deg]C) (59 degrees Fahrenheit ([deg]F)), which suggests that
the species may be limited to southern Florida due to temperature
(Bailey et al. 2017a, p. 1591). At this time, the most northern known
roost sites are located at Avon Park Air Force Range and its vicinity
(Angell and Thompson 2015, entire; B. Myers 2018, pers. comm.; Webb
2018, pers. comm.). Mean monthly temperatures at this location range
from 15 to 28 [deg]C (60-83 [deg]F), with an average low of 8.3 [deg]C
(47 [deg]F) (January) and an average high of 33.9 [deg]C (93 [deg]F)
(July). Prolonged cold temperatures resulted in bonneted bat
mortalities at one known colony site in North Fort Myers, Florida,
during a severe cold snap in 2010 (Trokey 2010a-b, pers. comm.; 2012a,
pers. comm.; see also the discussion of Factor E factors in the final
listing rule (78 FR 61004, October 2, 2013, pp. 61033-61034)). Limited
data at survey sites in south Florida indicated reduced bat activity
under conditions of lower ambient temperatures (Arwood 2014d, pers.
comm.). In general, molossids that inhabit the warmer temperate and
subtropical zones incur much higher energetic costs for
thermoregulation during cold weather events than those inhabiting
northern regions (Arlettaz et al. 2000, pp. 1004-1014; see also the
discussion of Factor E factors in the final listing rule (78 FR 61004,
October 2, 2013, pp. 61033-61034)). As a result, we recognize the
species' requirement of subtropical climate conditions for its long-
term persistence.
This species is suspected to seasonally vary its use of the
northern and southern extent of its known range. This may relate to
temperature sensitivity (as described above), different nutritional
needs during peak reproductive seasons, or changes in prey
availability. Florida bonneted bat detection is positively influenced
by Julian date and minimum temperature of the survey night; thus,
future monitoring efforts should be focused on warm nights later in the
spring to maximize detection probabilities (Bailey et al. 2017a, pp.
1589, 1591). Florida bonneted bats were also ``more common in areas
with higher historical mean annual rainfall but seemed to prefer areas
with lower rainfall during the spring'' (Bailey et al. 2017a, p. 1591).
The authors concluded that higher detection probabilities observed were
likely a result of increased insect abundance due to increased
temperatures, humidity, and precipitation influencing the bats'
activity (Bailey et al. 2017a, p. 1591). Therefore, we find that
seasonal
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differences and these other climatological conditions, in addition to
temperature, likely influence the species' distribution, habitat
requirements, and foraging opportunities, thereby affecting its
conservation. Differences in these environmental conditions may occur
seasonally or on finer temporal scales.
Habitats With Appropriate Disturbance Regimes
The Florida bonneted bat not only requires healthy and ecologically
diverse habitat, it also needs areas with an appropriate disturbance
regime. The Florida bonneted bat's entire range is within the fire-
dependent and fire-adapted landscape of central and south Florida (Noss
2018, entire). The species uses fire-dependent vegetation communities
for roosting (Belwood 1992, pp. 219-220; Angell and Thompson 2015,
entire; Braun de Torrez et al. 2016, p. 240) and foraging (Bailey et
al. 2017a, entire; Braun de Torrez et al. 2018a-c, entire). Florida
bonneted bats appear to be attracted to recently burned areas (Braun de
Torrez et al. 2018a, entire); it appears that Florida bonneted bats are
fire-adapted and benefit from prescribed burn programs that closely
mimic historical fire regimes. Fires during the historical fire season
(i.e., early wet season, April through June) at a moderate frequency
(more than 3 to 5 years) appear to optimize habitat for bats in both
pine flatwoods and prairies (Braun de Torrez et al. 2018b, pp. 6-9).
Fire may result in an increase of suitable roosts (i.e., create more
snags and cavities), more open flight space, and increased prey
availability (Boyles and Aubrey 2006, pp. 111-113; Armitage and Ober
2012, pp. 107-109; O'Keefe and Loeb 2017, p. 271; Braun de Torrez et
al. 2018a, p. 1120; 2018b, pp. 8-9).
Fire also has the potential to harm bats through disturbance or
destruction of roost trees (Morrison and Raphael 1993, p. 328;
Dickinson et al. 2010, pp. 2196-2200). Despite the risks that Florida
bonneted bats may abandon roosts, or roosts and pups may be lost during
fires, it is critical for fires to occur on the landscape to maintain
suitable habitat; precautions can be taken to reduce risks
appropriately (see Inadvertent Impacts from Land Management Practices,
below). Therefore, based on the information in this discussion, we
identify areas of diverse habitat types and ecological communities
maintained via appropriate disturbance regimes as essential physical or
biological features for this species.
Summary of Essential Physical or Biological Features
We derive the specific physical or biological features essential to
the conservation of Florida bonneted bat from studies of the species'
habitat, ecology, and life history as described below and further in
the Florida Bonneted Bat Conservation Strategy (see Supporting and
Related Material in Docket No. FWS-R4-ES-2019-0106 on https://www.regulations.gov) and the proposed and final listing rules (77 FR
60750, October 4, 2012; 78 FR 61004, October 2, 2013). We have
determined that the following physical or biological features are
essential to the conservation of the Florida bonneted bat:
(1) Habitats with sufficient darkness that provide for roosting and
rearing of offspring. Such habitat provides structural features for
rest, digestion of food, social interaction, mating, rearing of young,
protection from sunlight and adverse weather conditions, and cover to
reduce predation risks for adults and young, and is generally
characterized by:
(a) Live or dead trees and tree snags, especially longleaf pine,
slash pine, bald cypress, and royal palm, that are sufficiently large
(in diameter) and tall and that have cavities of a sufficient size for
roosts; and
(b) Live or dead trees and tree snags with sufficient cavity
height, spacing from adjacent trees, and relative canopy height to
provide unobstructed space for Florida bonneted bats to emerge from
roost trees; this may include open or semi-open canopy and canopy gaps.
(2) Habitats that provide adequate prey and space for foraging,
which may vary widely across the Florida bonneted bat's range, in
accordance with ecological conditions, seasons, and disturbance regimes
that influence vegetation structure and prey species' distributions.
Foraging habitat may be separate and relatively far from roosting
habitat. Essential foraging habitat consists of sufficiently dark open
areas in or near areas of high insect production or congregation,
commonly including, but not limited to:
(a) Freshwater edges and freshwater herbaceous wetlands (permanent
or seasonal);
(b) Prairies;
(c) Wetland and upland shrub; and/or
(d) Wetland and upland forests.
(3) A dynamic disturbance regime (e.g., fire, hurricanes, forest
management) that maintains and regenerates forested habitat, including
plant communities, open habitat structure, and temporary gaps, which is
conducive to promoting a continual supply of roosting sites, prey
items, and suitable foraging conditions.
(4) A sufficient quantity and diversity of habitats to enable the
species to be resilient to short-term impacts associated with
disturbance over time (e.g., drought, forest disease). This quantity
and diversity are essential to provide suitable conditions despite
temporary alterations to habitat quality. The ecological communities
the Florida bonneted bat inhabits differ in hydrology, fire frequency/
intensity, climate, prey species, roosting sites, and threats, and
include, but are not limited to:
(a) Pine rocklands;
(b) Cypress communities (cypress swamps, strand swamps, domes,
sloughs, ponds);
(c) Hydric pine flatwoods (wet flatwoods);
(d) Mesic pine flatwoods; and
(e) High pine.
(5) Habitats that provide structural connectivity where needed to
allow for dispersal, gene flow, and natural and adaptive movements,
including those that may be necessitated by climate change. These
connections may include linear corridors such as vegetated, riverine,
or open-water habitat with opportunities for roosting and/or foraging,
or patches (i.e., stepping stones) such as tree islands or other
isolated natural areas within a matrix of otherwise low-quality
habitat.
(6) A subtropical climate that provides tolerable conditions for
the species such that normal behavior, successful reproduction, and
rearing of offspring are possible.
Special Management Considerations or Protection
When designating critical habitat, we assess whether the specific
areas within the geographical area occupied by the species at the time
of listing contain features which are essential to the conservation of
the species and which may require special management considerations or
protection. Recovery of the Florida bonneted bat will require special
management considerations or protection of the essential physical or
biological features including passive (e.g., allowing natural processes
to occur without intervention) and active (e.g., taking actions to
restore and maintain habitat conditions or address threats) management.
The features essential to the conservation of this species that may
require special management considerations or protection to reduce the
threats that are related to inadvertent impacts from land management
practices are discussed below.
[[Page 16644]]
Habitat Loss
Habitat loss, degradation, and modification from human population
growth and associated development (including infrastructure and energy
development) and agriculture have impacted the Florida bonneted bat and
are expected to further curtail its limited range (see the Factor A
discussion in the final listing rule (78 FR 61004, October 2, 2013, pp.
61026-61030); Bailey et al. 2017a, entire). Based on the expected rates
of human population growth and urbanization in southern Florida, nearly
all agricultural and private natural lands are predicted to be
converted to developed land by 2060 (Zwick and Carr 2006, pp. 15, 18).
Of this, approximately 2.6 percent of designated critical habitat
(30,716 ac (12,430 ha)) is predicted to be converted to developed land
by 2070 (Carr and Zwick 2016, entire). The species occurs, in part, on
publicly owned lands that are managed for conservation, ameliorating
some of these threats (see Conservation Lands Within Florida Bonneted
Bat Final Critical Habitat Designation under Supporting and Related
Material in Docket No. FWS-R4-ES-2019-0106 on https://www.regulations.gov). However, any unknown extant populations of the
bat or suitable habitat on private lands or non-conservation public
lands are vulnerable to habitat loss and fragmentation. Retaining a
habitat network of large and diverse natural areas for conservation
purposes in a spatial configuration throughout the Florida bonneted
bat's range and actively managing those lands will likely be essential
to conservation. In addition, conservation efforts on private lands can
help reduce the threats of habitat loss, increasing the potential for
long-term survival.
Natural roosting habitat appears to be limiting, and competition
for tree cavities is high (see Competition for Tree Cavities under the
Factor E discussion in the final listing rule (78 FR 61004, October 2,
2013, p. 61034)). To help conserve the Florida bonneted bat, efforts
should be made to retain tall trees, cavity trees, trees with hollows
or other decay, and snags wherever possible to protect habitat, reduce
competition for suitable roosts, and bolster or expand populations
within the species' known range (Angell and Thompson 2015, p. 187;
Braun de Torrez et al. 2016, pp. 235, 240; Ober et al. 2016, p. 7). The
use of artificial structures for the Florida bonneted bat may also be
beneficial in some locations, especially where roosting structures are
lacking or deficient (see Use of Artificial Structures (Bat Houses) in
the final listing rule (78 FR 61004, October 2, 2013, p. 61010)).
Substantial losses in suitable foraging habitats are expected to
occur in the coming decades as natural and agricultural areas are
converted to other uses and as areas become urbanized (Carr and Zwick
2016, entire; Bailey et al. 2017a, p. 1591). Conservation of natural
and semi-natural habitats and restoration with native plants is
imperative to help maintain sufficient prey base. Natural habitats
conducive to insect diversity should be protected and any pesticides
should be used with caution (for more information, see the final
listing rule (78 FR 61004; October 2, 2013) under Life History (pp.
61005-61006), and Pesticides and Contaminants in the Factor E
discussion (pp. 61035-61036).
Climate Change and Sea Level Rise
The effects resulting from climate change, including sea level
rise, saltwater intrusion, and coastal squeeze, are expected to become
severe in the future and result in additional habitat losses, including
the loss of roost sites and foraging habitat (see the Factor A
discussion in the final listing rule (78 FR 61004, October 2, 2013, pp.
61026-61030)). Within the species' range, low-lying areas along the
coast are most vulnerable to inundation, and additional areas are
likely to experience changes in plant species composition (decline in
forested habitat such as cabbage palm forests, pine rockland, and
coastal hardwood hammocks). Occupied Florida bonneted bat habitat
located near the coast in south Florida (e.g., Collier, Lee, Miami-
Dade, Monroe, Charlotte, Desoto, and Sarasota Counties) will be
vulnerable to inundation and/or saltwater intrusion as sea levels rise.
Based on source data used by the National Oceanic and Atmospheric
Administration (NOAA) Sea Level Rise map viewer, an estimated 8.7
percent (100,840 ac (40,809 ha)) of the designated occupied habitat
area is projected to be inundated by 6 feet of salt water around 2070
(sea level rise plus tidal flooding; Sweet et al. 2017, entire; Sweet
et al. 2018, entire; Sweet et al. 2019, entire; Sweet et al. 2022,
entire). In addition, data from Florida's statewide digital elevation
model (University of Florida (UF) GeoPlan Center 2017, entire) indicate
that an additional 14.3 percent (166,257 ac (67,282 ha)) of designated
occupied habitat outside of the areas mapped by NOAA are at or below 6
feet in elevation and may also be affected by sea level rise (this does
not include area in Unit 1 due to the unlikelihood of sea level rise
impacts). Although we are unable to accurately estimate the extent of
other climate change-related effects, we expect additional occupied
habitat will be impacted by saltwater intrusion, drier conditions, and
increased variability in precipitation, likely resulting in changes to
vegetation composition and prey availability, decreased forest
regeneration, and potential increases in wildfire frequency, severity,
and scale (for more information, see the final listing rule (78 FR
61004; October 2, 2013) under the discussion of Factor A in Land Use
Changes and Human Population Growth (pp. 61026-61027) and Climate
Change and Sea Level Rise (pp. 61028-61029)). The trend toward higher
temperatures and lower rainfall (or shifts in rainfall patterns) could
result in the degradation of wetlands and other important open water
habitats, or complete loss of affected foraging areas if drought-like
conditions persist. Actual impacts may be greater or less than
anticipated based upon high variability of factors involved (e.g., sea
level rise, human population growth) and assumptions made.
As a result of these impacts and other causes of habitat loss and
degradation, the essential physical or biological features for the
Florida bonneted bat may no longer be available in some areas, and the
amount of suitable occupied Florida bonneted bat habitat is likely to
shrink dramatically in the future. Habitat loss from sea level rise and
saltwater intrusion will be greatest in areas closer to the coast and
is likely to result in the loss of some bonneted bat populations, such
as those in eastern Miami-Dade County, reducing the species' ability to
withstand catastrophic events (i.e., redundancy). We anticipate
additional populations near the coast will be reduced in size, such as
those in Charlotte, Lee, Collier, Monroe, and remaining areas in Miami-
Dade Counties, resulting in decreased overall health and fitness (i.e.,
resiliency) of those populations. Further, most of the remaining bat
populations face similar threats and pressures (e.g., development
pressure, effects of climate change, coastal squeeze, droughts,
hurricanes) that are expected to reduce their resiliency. This limits
the species' ability to recover from population declines when many
populations are similarly affected. However, we lack certainty as to
the severity of impacts the effects of sea level rise may have on the
Florida bonneted bat's critical habitat.
Directly addressing sea level rise is beyond the control of
landowners or managers. However, while landowners or land managers may
not be able prevent these events, they may be able
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to respond with management or protection. Management actions or
activities that could ameliorate the effects of sea level rise on the
Florida bonneted bat (i.e., loss and degradation of habitats that
provide for roosting or foraging, especially those areas closer to the
coast) include providing protection of inland or higher elevation
suitable habitats (e.g., in the northern portion of the bat's range)
that are predicted to be unaffected or less affected by sea level rise,
or habitat restoration or enhancement of these areas.
Environmental Stochasticity
Hurricanes, storm surges, and other catastrophic and stochastic
events are of significant concern (for more information, see final
listing rule (78 FR 61004; October 2, 2013) under the discussion of
Factor E in Environmental Stochasticity (pp. 61037-61039) and Aspects
of the Species' Life History and Climate Change Implications (p.
61039)). In 2017 alone, at least four known roost trees were impacted
by Hurricane Irma. While landowners or land managers cannot prevent
these events, they may be able to respond with protection or management
that can help reduce some effects or facilitate recovery from these
events. Retention of large trees and snags wherever possible in
multiple locations can help provide valuable roosting habitat
throughout the species' range (Braun de Torrez et al. 2016, pp. 235,
240; Ober et al. 2016, p. 7). Management actions or activities that
could enhance forest recovery following storms may include hand or
mechanical removal of damaged vegetation or prescribed fire, if or when
conditions are suitable. If large trees, cavity trees, trees with
hollows or other decay, or snags need to be removed due to safety
issues, visual or other inspection should occur to ensure that active
roosts are not removed in this process.
Artificial structures could potentially help provide roosting
opportunities in areas impacted by stochastic events or where suitable
natural roosts are lacking or deficient. More research on the role of
bat houses in bonneted bat conservation is needed, especially given the
bat's social structure (FWC 2013, pp. 11-12; Ober et al. 2016, p. 7).
If used, bat houses should be appropriately designed, placed,
maintained, and monitored; such structures may also need to be
reinforced and duplicated to prevent loss. If an occupied area is
severely impacted, causing major losses of suitable natural roosts, the
use of artificial structures could be explored as one possible option
to help regain lost roosting capacity.
Pesticides and Contaminants
More study is needed to fully assess the risk that pesticides
(particularly insecticides) and contaminants pose to the Florida
bonneted bat (see Pesticides and Contaminants under the Factor E
discussion in the final listing rule (78 FR 61004, October 2, 2013, pp.
61035-61036)). Although data are lacking, the species may be exposed to
a variety of compounds through multiple routes of exposure. Areas with
intensive pesticide activity may not support an adequate food base.
Foraging habitat can be enhanced, in part, by limiting the use of
pesticides, including agrochemicals (chemicals used in agriculture)
(Russo and Jones 2003, pp. 206-207; Wickramasinghe et al. 2003, pp.
991-992; Wickramasinghe et al. 2004, entire). While exposure to some
contaminants (e.g., mercury) may be beyond the realm of what
individuals or agencies can rectify, risks from pesticides can be
partially reduced at the local level. For example, landowners and land
managers can help reduce some risks of exposure and improve foraging
conditions for the Florida bonneted bat by avoiding or limiting use of
insecticides (e.g., mosquito control, agricultural), wherever possible,
and especially in areas known to be occupied by the Florida bonneted
bat. An increased occurrence of bonneted bats was found in agricultural
areas and was attributed to a combination of insect abundance in these
areas and the species' ability to forage in open spaces (Bailey et al.
2017a, pp. 1589, 1591). It is reasonable to assume that prey base
(i.e., availability, abundance, and diversity of insects) would be more
plentiful with reduction of insecticides, where possible. If pesticides
cannot be avoided, ways to reduce impacts should be explored.
Protecting natural and semi-natural habitats that support insect
diversity can also improve foraging conditions and contribute to
conservation.
Ecological Light Pollution
The Florida bonneted bat's behavioral response to ecological light
pollution has not specifically been examined (see Ecological Light
Pollution under the Factor E discussion in the final listing rule (78
FR 61004, October 2, 2013, p. 61036)); however, there is evidence of
closely related and other open space foraging bat species avoiding
artificial lighting and of the Florida bonneted bat preferring darker
landscapes within an urban matrix (Jung and Kalko 2010, pp. 147-148;
Bat Conservation International 2022, p. 18; Mena et al. 2022, pp. 568-
571). Artificial lighting can impact roosting habitat quality as light
at emergence can disrupt emergence cues and may increase predation risk
(or perceived predation risk) for other open space foraging and
insectivorous bats (Rydell et al. 1996, pp. 249, 251; Mariton et al.
2022, p. 8). Similarly, lighting can restrict habitat connectivity and
fragment foraging areas (Voigt et al. 2020, pp. 197-199).
Artificial lighting can also affect the abundance and availability
of insects (van Grunsven et al. 2020, entire; Boyes et al. 2021,
entire; Pennisi 2021, entire; Mariton et al. 2022, pp. 2, 7), thereby
reducing the quality of foraging habitat for Florida bonneted bats.
Thus, at this time, we consider ecological light pollution a potential
threat to the Florida bonneted bat and its habitat. Management actions
or activities that could ameliorate ecological light pollution include
avoiding and minimizing the use of artificial lighting, retaining
natural light conditions, and promoting the use of environmentally
friendly lighting practices to minimize impacts to wildlife (e.g.,
Voigt et al. 2018, entire).
Inadvertent Impacts From Land Management Practices
Forest management can help maintain and improve the Florida
bonneted bat's roosting and foraging habitat (see Use of Forests and
Other Natural Areas in the final listing rule (78 FR 61004, October 2,
2013, pp. 61007-61010)), and a lack of forest management, including a
lack of prescribed fire or invasive plant control, can be detrimental
to the species. For example, prescribed burns may benefit Florida
bonneted bats by improving habitat structure, enhancing the prey base,
and creating openings; restoration of fire to fire-dependent forests
may improve foraging habitat for this species and create snags (Carter
et al. 2000, p. 139; Boyles and Aubrey 2006, pp. 111-113; Lacki et al.
2009, entire; Armitage and Ober 2012, pp. 107-109; FWC 2013, pp. 9-11;
Ober and McCleery 2014, pp. 1-3; Braun de Torrez et al. 2018a-b,
entire).
Fire is a vital component in maintaining suitable Florida bonneted
bat habitat (Braun de Torrez et al. 2018b, entire), and while many
prescribed fire and other land management practices mimic natural
processes and benefit native species on broad spatial and temporal
scales, these activities can result in inadvertent negative impacts in
the near term. For example, extensive removal of trees with cavities or
hollows during activities associated with forest management, fuel
reduction, vista management, off-road vehicle trail
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maintenance, prescribed fire, or habitat restoration may inadvertently
remove roost sites or reduce the availability of roost sites (see Land
Management Practices in the final listing rule (78 FR 61004, October 2,
2013, p. 61027)).
The features essential to the conservation of the Florida bonneted
bat may require special management considerations or protection to
reduce threats and conserve these features. Actions that could
ameliorate threats include, but are not limited to:
(1) Retaining and actively managing a habitat network of large and
diverse conservation lands throughout the Florida bonneted bat's range;
(2) Protecting, restoring, or enhancing inland or higher elevation
habitats that are predicted to be unaffected or less affected by sea
level rise;
(3) Protecting habitats that support high insect diversity and
abundance, and avoiding the excessive use of pesticides wherever
possible;
(4) Retaining potential roost trees and snags (see Cover or
Shelter, above); and
(5) Developing and implementing specific guidelines (see the
Florida Bonneted Bat Consultation Guidelines under Supporting and
Related Material in Docket No. FWS-R4-ES-2019-0106 on https://www.regulations.gov) to minimize impacts of activities associated with
hurricane clean-up, prescribed fire, invasive species management,
forest management, and development.
Conservation Strategy and Selection Criteria Used To Identify Critical
Habitat
Conservation Strategy
As required by section 4(b)(2) of the Act, we use the best
scientific data available to designate critical habitat. In accordance
with the Act and our implementing regulations at 50 CFR 424.12(b), we
review available information pertaining to the habitat requirements of
the species and identify specific areas within the geographical area
occupied by the species at the time of listing and any specific areas
outside the geographical area occupied by the species to be considered
for designation as critical habitat. We are not designating any areas
outside the geographical area occupied by the species because we have
not identified any unoccupied areas that meet the definition of
critical habitat. The occupied areas identified encompass the varying
types and distribution of habitat needed by the species and provide
sufficient habitat to allow for maintaining and potentially expanding
the populations.
To determine and select appropriate occupied areas that contain the
physical or biological features essential to the conservation of the
species or unoccupied areas otherwise essential for the conservation of
the Florida bonneted bat, we incorporated information from the
conservation strategy for the species. The goal of our conservation
strategy for the Florida bonneted bat is to recover the species to the
point where the protections of the Act are no longer necessary. The
role of critical habitat in achieving this conservation goal is to
identify the specific areas within the Florida bonneted bat's range
that provide essential physical or biological features without which
the Florida bonneted bat's rangewide resiliency, redundancy, and
representation could not be achieved. Specifically, this conservation
strategy helped identify those areas within the Florida bonneted bat's
range that contain the physical or biological features without which
rangewide resiliency, redundancy, and representation could not be
achieved. Our conservation strategy identified goals, from which we
developed the following six critical habitat criteria for determining
the specific areas that contain the physical or biological features
essential to the conservation of the species:
(1) Genetic diversity--To maintain viable populations in each of
the known genetically differentiated areas (see Space for Individual
and Population Growth and for Normal Behavior, above), critical habitat
should include one unit within each of the four genetically
differentiated populations.
(2) Geographic extent--To maintain viable populations that are
distributed across the geographic range of the Florida bonneted bat
(see Current Distribution in the final listing rule (78 FR 61004,
October 2, 2013, pp. 61010-61011)), critical habitat units should
represent the extent of the species' existing known range.
(3) Ecological diversity--To maintain at least one viable
population in each major ecological community that provides roosting
habitat for the Florida bonneted bat (see Habitats with Appropriate
Disturbance Regimes, above), these community types should be well
represented in critical habitat units.
(4) Climate change resilience--To maintain at least one viable
population in suitable habitat predicted to be unaffected or less
affected by sea level rise and climate change, critical habitat should
include one unit in the northern, inland portion of the Florida
bonneted bat's range.
(5) High conservation value (HCV) habitat--To maintain sufficient
habitat with HCV that supports the life history of the species within
each population, critical habitat units should incorporate multiple
areas that support roosting and foraging needs and that have HCV (as
informed by habitat analysis results and telemetry data).
(6) Structural connectivity--To maintain, enhance, and reestablish
connectivity within and between Florida bonneted bat populations,
critical habitat units should be configured within the central and
south Florida landscape to provide connectivity based on the best
available movement data for the species (see Space for Individual and
Population Growth and for Normal Behavior, above).
Selection Criteria and Methodology Used to Identify Critical Habitat
To delineate the specific areas that are occupied by the species
and that contain the physical or biological features essential to the
Florida bonneted bat's conservation, we conducted a habitat analysis.
Acknowledging some limitations in the information available, we used
the best available data to conduct our habitat analysis (see Florida
Bonneted Bat Habitat Analysis under Supporting and Related Material in
Docket No. FWS-R4-ES-2019-0106 on https://www.regulations.gov).
Information used in the habitat analysis and/or the delineation of
critical habitat units consists of the following:
(1) Confirmed presence data compiled in our Geographic Information
System (GIS) database from 2003 through 2021, and provided by FWC, UF,
and other various sources, including survey reports, databases, and
publications;
(2) Vegetation cover types from the Cooperative Land Cover map
(CLC; version 3.4) developed by FWC and Florida Natural Areas
Inventory;
(3) Canopy height from the global forest canopy height map (2019)
developed by Global Land Analysis and Discovery;
(4) Red-cockaded woodpecker (Picoides borealis) potential habitat
(2016) developed by FWC, based on evidence indicating Florida bonneted
bats use woodpecker cavities for roosting;
(5) Artificial sky luminance from the New World Atlas of Artificial
Sky Brightness developed by the Light Pollution Science and Technology
Institute (Falchi et al. 2016, entire);
(6) Fire frequency data provided by the Monitoring Trends in Burn
Severity program;
[[Page 16647]]
(7) Urban development data (2010 baseline) from the Florida 2070
project developed by the Florida Department of Agriculture and Consumer
Services, the UF GeoPlan Center, and 1000 Friends of Florida;
(8) Maps of unpublished telemetry data collected and provided by UF
and FWC; and
(9) ArcGIS online basemap aerial imagery (2018-2020) to cross-check
CLC data and ensure the presence of physical or biological features.
To help identify potential factors affecting Florida bonneted bat
use, we conducted a spatial analysis to quantify relationships of
habitat-related and other environmental variables with species
occurrence (see Florida Bonneted Bat Habitat Analysis under Supporting
and Related Material in Docket No. FWS-R4-ES-2019-0106 on https://www.regulations.gov). Available presence data incorporated into the
analysis primarily consisted of acoustic data, as well as locations of
known roosts. Maps of telemetry locations were used to inform our
evaluation of HCV areas but were not part of the habitat analysis
dataset because coordinate data were not available at the time. We
identified 10 covariates that related to habitat types (e.g., pine/
cypress) and other factors (e.g., fire history) thought to influence
habitat suitability and use by the Florida bonneted bat and modeled
those at three spatial scales (see Florida Bonneted Bat Habitat
Analysis under Supporting and Related Material in Docket No. FWS-R4-ES-
2019-0106 on https://www.regulations.gov). Model output included
predictive maps representing the probability of species occurrence
based on the covariates included in the final models, and we used these
maps to characterize the relative habitat suitability and conservation
value of areas within central and south Florida. We also conducted
sensitivity/specificity analyses to identify an objective threshold
value for each model, which we then applied to identify areas with high
conservation value to the species. For full details of our methodology
and results, including links to data sources used, see the Florida
Bonneted Bat Habitat Analysis under Supporting and Related Material in
Docket No. FWS-R4-ES-2019-0106 on https://www.regulations.gov.
We considered the model output and the conservation strategy to
determine the specific areas occupied by the species on which are found
the physical or biological features that are essential to the Florida
bonneted bat. Those specific areas (critical habitat units) were
identified and delineated using the following steps:
(1) We identified areas having high conservation value (as
described above) for the Florida bonneted bat based on model output
because those areas are likely to contain the combination of
characteristics that we have determined are essential physical or
biological features for the Florida bonneted bat.
(2) We refined these areas to eliminate any unsuitable or less
suitable areas that are unlikely to contain features essential to the
conservation of the species based on the Florida bonneted bat's biology
(e.g., temperature requirements) and aerial imagery.
(3) We considered telemetry maps and certain critical habitat
criteria that were not incorporated into the models (e.g.,
connectivity). Where telemetry maps indicated high use (e.g., HCV
foraging habitat), or where additional area was needed to ensure
sufficient connectivity, we delineated additional habitat using CLC
data and aerial imagery and based on model output and covariate
relationships identified in our habitat analysis.
(4) We evaluated the resulting units to determine whether occupied
habitat is adequate to ensure conservation of the species. We
specifically evaluated occupied units to ensure they fulfill all
critical habitat criteria and meet the goals and objectives in our
conservation strategy for identifying the areas that contain the
features that are essential to the Florida bonneted bat. Based on our
determination that occupied areas are sufficient for the conservation
of the species, no unoccupied habitat is included in this critical
habitat designation.
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 physical or
biological features necessary for the Florida bonneted bat. 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 and are not designated as critical habitat. Therefore, a Federal
action involving these lands would not trigger section 7 consultation
with respect to critical habitat and the requirement of no adverse
modification unless the specific action would affect the physical or
biological features in the adjacent critical habitat.
We are designating as critical habitat areas that we have
determined are occupied at the time of listing (i.e., currently
occupied) and that contain one or more of the physical or biological
features that are essential to support life-history processes of the
species. We considered areas occupied at the time of listing if they
have documented presence of Florida bonneted bats from October 2013
through 2021. Due to the species' life span and high site fidelity, it
is reasonable to conclude that these areas found to be occupied in 2013
to 2021 would have been inhabited by Florida bonneted bats when the
species was listed in 2013. Each critical habitat unit contains all the
identified physical or biological features essential to 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-2019-0106 and at
the Florida bonneted bat species web page at https://www.fws.gov/species/florida-bonneted-bat-eumops-floridanus.
Final Critical Habitat Designation
We are designating nine units as critical habitat for the Florida
bonneted bat. The critical habitat areas we describe below constitute
our current best assessment of areas that meet the definition of
critical habitat for the Florida bonneted bat. The nine areas we
designate as critical habitat are: (1) Kissimmee Unit, (2) Peace River
Unit, (3) Babcock Unit, (4) Fisheating Creek Unit, (5) Corkscrew Unit,
(6) Big Cypress Unit, (7) Everglades Tree Islands Unit, (8) Long Pine
Key Unit, and (9) Miami Rocklands Unit. All nine units are occupied by
the species. Table 1, below, shows the units and the approximate area
of each unit/subunit within each land ownership category.
[[Page 16648]]
Table 1--Final Critical Habitat Units and Subunits for the Florida Bonneted Bat, Including Acres (ac) and Hectares (ha) by Land Ownership Category
[Area estimates reflect all land within critical habitat unit boundaries, and land ownership was determined using the most recent parcel data provided
by each county. All units are occupied]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Land ownership: ac (ha)
Critical habitat unit/subunit ------------------------------------------------------------------------------------------------ Total area: ac
Federal State County Local Private/other Unidentified (ha)
--------------------------------------------------------------------------------------------------------------------------------------------------------
1. Kissimmee............................ 99 137,283 834 0 35,455 2,065 175,735
(40) (55,556) (338) (14,348) (836) (71,118)
1A.................................. 90 136,846 629 0 29,701 2,065 169,331
(36) (55,380) (255) (12,020) (836) (68,526)
1B.................................. 9 437 205 0 5,753 <1 6,404
(4) (177) (83) (2,328) (2,592)
2. Peace River.......................... 32 6,369 710 165 18,874 1,897 28,046
(13) (2,577) (287) (67) (7,638) (768) (11,350)
2A.................................. 0 0 0 0 2,603 0 2,603
(1,053) (1,053)
2B.................................. 0 0 0 0 5,478 200 5,678
(2,217) (81) (2,298)
2C.................................. 0 0 0 0 2,029 2 2,031
(821) (1) (822)
2D.................................. 32 6,369 710 165 8,765 1,694 17,734
(13) (2,577) (287) (67) (3,547) (686) (7,177)
3. Babcock.............................. 0 108,748 1,843 19 23,739 328 134,677
(44,009) (746) (8) (9,607) (133) (54,502)
3A.................................. 0 80,238 782 19 7,193 328 88,559
(32,471) (316) (8) (2,911) (133) (35,839)
3B.................................. 0 28,510 1,062 0 16,546 0 46,118
(11,538) (430) (6,696) (18,663)
4. Fisheating Creek..................... 0 7,689 <1 0 5,300 6 12,995
(3,112) (2,145) (2) (5,259)
5. Corkscrew............................ 0 26,313 5,188 0 17,324 41 48,865
(10,648) (2,100) (7,011) (16) (19,775)
6. Big Cypress.......................... 533,227 152,559 8,421 229 16,011 3,638 714,085
(215,789) (61,738) (3,408) (93) (6,480) (1,472) (288,980)
7. Everglades Tree Islands.............. 16,596 1 4 0 2 1 16,604
(6,716) (1) (2) (1) (1) (6,719)
8. Long Pine Key........................ 25,147 2 (1) 0 0 187 0 25,337
(10,177) (76) (10,253)
9. Miami Rocklands...................... 603 785 2,458 8 (3) 381 46 4,281
(244) (318) (995) (154) (19) (1,732)
9A.................................. 0 0 52 0 0 1 53
(21) (<1) (21)
9B.................................. 0 0 104 0 0 1 104
(42) (<1) (42)
9C.................................. 0 0 5 0 0 0 5
(2) (2)
9D.................................. 0 0 0 0 28 <1 28
(11) (12)
9E.................................. 0 21 230 <1 13 2 267
(9) (93) (5) (1) (108)
9F.................................. 140 0 <1 0 <1 0 140
(57) (57)
9G.................................. 0 8 0 0 19 <1 28
(3) (8) (11)
9H.................................. 0 235 0 0 0 3 238
(95) (1) (96)
9I.................................. 0 0 22 0 0 0 22
(9) (9)
9J.................................. 0 60 <1 8 28 3 99
(24) (3) (11) (1) (40)
9K.................................. 0 26 11 0 0 0 37
(10) (4) (15)
9L.................................. 0 77 <1 0 <1 0 77
(31) (31)
9M.................................. 0 0 123 0 0 0 123
(50) (50)
9N.................................. 0 28 0 0 <1 0 28
(11) (11)
9O.................................. 462 0 1,215 0 22 1 1,700
(187) (492) (9) (<1) (688)
9P.................................. 0 48 0 0 13 <1 61
(19) (5) (25)
9Q.................................. 0 <1 7 0 7 0 14
(3) (3) (6)
9R.................................. 0 36 22 0 14 8 80
(15) (9) (6) (3) (32)
9S.................................. 0 34 63 0 35 2 135
(14) (26) (14) (1) (55)
9T.................................. 0 10 0 0 25 <1 36
(4) (10) (14)
9U.................................. 0 18 4 0 1 <1 23
(7) (2) (<1) (9)
[[Page 16649]]
9V.................................. 0 0 0 0 30 1 31
(12) (1) (13)
9W.................................. 0 9 103 0 <1 <1 112
(4) (42) (45)
9X.................................. 0 0 10 0 20 <1 30
(4) (8) (12)
9Y.................................. 0 0 18 0 11 4 32
(7) (4) (1) (13)
9Z.................................. 0 0 28 0 <1 3 31
(11) (1) (13)
9AA................................. 0 22 24 0 37 0 84
(9) (10) (15) (34)
9BB................................. 0 0 19 0 23 1 43
(8) (9) (<1) (17)
9CC................................. 0 0 9 0 15 <1 24
(4) (6) (10)
9DD................................. 0 19 0 0 0 0 19
(8) (8)
9EE................................. 0 12 <1 0 1 5 18
(5) (<1) (2) (7)
9FF................................. 0 0 39 0 <1 0 39
(16) (16)
9GG................................. 0 81 240 0 28 1 351
(33) (97) (12) (<1) (142)
9HH................................. 0 22 0 0 <1 0 22
(9) (9)
9II................................. 0 18 5 0 10 6 39
(7) (2) (4) (2) (16)
9JJ................................. <1 0 105 0 0 2 108
(42) (1) (44)
Total........................... 575,703 439,750 19,459 421 117,272 8,021 1,160,625
(232,979) (177,960) (7,875) (170) (47,458) (3,246) (469,688)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.
We present brief descriptions of all units, and reasons why they
meet the definition of critical habitat for the Florida bonneted bat,
below.
Unit 1: Kissimmee Unit
Unit 1 encompasses 175,735 ac (71,118 ha) of lands in Polk,
Osceola, Highlands, and Okeechobee Counties, Florida. This unit
consists of two subunits generally located along the eastern bank of
Lake Kissimmee northeast to SR-192, north of SR-60; and along portions
of the Kissimmee River, south of SR-60. Unit 1 predominately consists
of State-owned conservation lands (137,283 ac (55,556 ha)) and private
lands (35,455 ac (14,348 ha)). The largest conservation landholdings
within this unit include Kissimmee Prairie Preserve State Park, Three
Lakes WMA, Herky Huffman/Bull Creek WMA, Triple N Ranch WMA, and South
Florida Water Management District lands along the Kissimmee River.
Other smaller conservation lands also occur within this unit (for more
information, see Conservation Lands Within Florida Bonneted Bat Final
Critical Habitat Designation under Supporting and Related Material in
Docket No. FWS-R4-ES-2019-0106 on https://www.regulations.gov). We
excluded approximately 1.25 ac (0.5 ha) of Tribal lands (Miccosukee
Tribe of Florida) that occur within Subunit 1B from this final critical
habitat designation (see Exclusions Based on Other Relevant Impacts,
below).
Unit 1 contains all of the essential physical or biological
features for the Florida bonneted bat and is considered occupied at the
time of listing based on documented presence of Florida bonneted bats
within the unit. The Kissimmee Unit represents the northern extent of
the species' range and provides resiliency against the expected impacts
from habitat loss due to climate change as the unit includes areas
considered less vulnerable to these effects. Habitat in this unit
provides ecological diversity (i.e., high pine and mesic flatwoods) and
includes areas identified as having HCV, specifically high-quality
roosting habitat (e.g., potential roost trees, red-cockaded woodpecker
activity in the area) and foraging habitat (e.g., open water, abundant
prey). In addition, the Florida bonneted bats in this area are
genetically differentiated from those occurring elsewhere in the range
(Austin et al. 2022, entire), and thus contribute to the genetic
diversity of the overall population.
The physical or biological features essential to the conservation
of the Florida bonneted bat in Unit 1 may require special management
considerations or protection due to the following threats: Habitat loss
and fragmentation from changes in land use (e.g., land clearing for
residential/commercial development); lack of habitat management and/or
inadvertent impacts from these habitat management practices (e.g.,
prescribed fire, snag removal); and excessive pesticide use (see
Special Management Considerations or Protection, above).
Under section 4(a)(3)(B)(i) of the Act, we are exempting Avon Park
Air Force Range lands (99,523 ac (40,276 ha)) from the critical habitat
designation because the U.S. Air Force has an approved integrated
natural resources management plan (INRMP) that provides benefits to the
Florida bonneted bat and its habitat (see Exemptions, below, for more
detailed information).
Unit 2: Peace River Unit
Unit 2 encompasses 28,046 ac (11,350 ha) of lands in Hardee,
DeSoto, and
[[Page 16650]]
Charlotte Counties, Florida. This unit consists of four subunits
located along portions of the Peace River and its tributaries (e.g.,
Shell Creek, Charlie Creek), south of CR-64 with the majority west of
U.S.-17. Unit 2 predominately consists of privately owned lands (18,874
ac (7,638 ha)) and State-owned conservation lands (6,369 ac (2,577
ha)). The largest conservation landholdings within this unit include
the Peace River State Forest and the Deep Creek Preserve. Other smaller
conservation lands also occur within this unit (for more information,
see Conservation Lands Within Florida Bonneted Bat Final Critical
Habitat Designation under Supporting and Related Material in Docket No.
FWS-R4-ES-2019-0106 on https://www.regulations.gov).
Unit 2 contains all of the essential physical or biological
features for the Florida bonneted bat and is considered occupied at the
time of listing based on documented presence of Florida bonneted bats
within the unit. The Peace River Unit encompasses a known movement
corridor (generally connecting Units 1 and 3), allowing gene flow
between these populations, and includes areas identified as having HCV,
specifically high-quality foraging habitat along the Peace River and
adjacent forested lands that provide open water and abundant prey. In
addition, this unit adds ecological diversity (a natural river
corridor) to the overall designation.
The physical or biological features essential to the conservation
of the Florida bonneted bat in Unit 2 may require special management
considerations or protection due to the following threats: Habitat
loss, fragmentation, or degradation from changes in land use (e.g.,
land clearing for residential/commercial development); lack of habitat
management and/or inadvertent impacts from land management practices
(e.g., prescribed fire, snag removal); excessive pesticide use; and
climate change (e.g., sea level rise/inundation, saltwater intrusion,
habitat alteration/degradation) (see Special Management Considerations
or Protection, above).
Unit 3: Babcock Unit
Unit 3 encompasses 134,677 ac (54,502 ha) of lands in Charlotte,
Lee, and Glades Counties, Florida. This unit consists of two subunits,
with the majority of Unit 3 located in Charlotte County, east of I-75;
other portions are in northwestern Lee and western Glades Counties.
This unit predominately consists of State-owned conservation lands
(108,748 ac (44,009 ha)) and private lands (23,739 ac (9,607 ha)). The
largest conservation landholdings within this unit are Babcock-Webb WMA
and Babcock Ranch Preserve; other smaller conservation lands also occur
within this unit (for more information, see Conservation Lands Within
Florida Bonneted Bat Final Critical Habitat Designation under
Supporting and Related Material in Docket No. FWS-R4-ES-2019-0106 on
https://www.regulations.gov).
Unit 3 contains all of the essential physical or biological
features for the Florida bonneted bat and is considered occupied at the
time of listing based on documented presence of Florida bonneted bats
within the unit. Habitat in the Babcock Unit provides ecological
diversity (i.e., hydric and mesic flatwoods) and includes areas
identified as having HCV, specifically superior roosting and foraging
habitat. Babcock-Webb WMA and surrounding areas support a large
population of Florida bonneted bats and many of the known roost sites.
In addition, the Florida bonneted bats in this westernmost extent of
the species' range are genetically differentiated from those occurring
elsewhere in the range (Austin et al. 2022, entire), thus contributing
to the genetic diversity of the overall population.
The physical or biological features essential to the conservation
of the Florida bonneted bat in Unit 3 may require special management
considerations or protection due to the following threats: Habitat
loss, fragmentation, or degradation from changes in land use (e.g.,
land clearing for residential/commercial development); lack of habitat
management and/or inadvertent impacts from land management practices
(e.g., prescribed fire, snag removal); excessive pesticide use; and
climate change (e.g., sea level rise/inundation, saltwater intrusion,
habitat alteration/degradation) (see Special Management Considerations
or Protection, above).
Unit 4: Fisheating Creek Unit
Unit 4 encompasses 12,995 ac (5,259 ha) of lands in Glades and
Highlands Counties, Florida. The majority of Unit 4 is located in
Glades County, west of US-27; the remaining portion of the unit extends
north into southern Highlands County. This unit predominately consists
of State-owned conservation lands (7,689 ac (3,112 ha)) and private
lands (5,300 ac (2,145 ha)). Conservation landholdings within this unit
are Fisheating Creek WMA, Fisheating Creek/Lykes Brothers Conservation
Easement, and Platt Branch Wildlife and Environmental Area.
Unit 4 contains all of the essential physical or biological
features for the Florida bonneted bat and is considered occupied at the
time of listing based on documented presence of Florida bonneted bats
within the unit. High-quality foraging habitat along Fisheating Creek
and adjacent forested lands provide open water and abundant prey. This
unit serves as important foraging habitat connecting bats traveling
between Unit 3 and areas to the north and east, and, along with Unit 2,
this unit adds ecological diversity (natural river corridors) to the
overall designation.
The physical or biological features essential to the conservation
of the Florida bonneted bat in Unit 4 may require special management
considerations or protection due to the following threats: Habitat
loss, fragmentation, or degradation from changes in land use (e.g.,
land clearing for residential/commercial development); lack of habitat
management and/or inadvertent impacts from land management practices
(e.g., prescribed fire, snag removal, hydrologic restoration);
excessive pesticide use; and climate change (e.g., sea level rise/
inundation, saltwater intrusion, habitat alteration/degradation) (see
Special Management Considerations or Protection, above).
Unit 5: Corkscrew Unit
Unit 5 encompasses 48,865 ac (19,775 ha) of lands in Lee and
Collier Counties, Florida. This unit straddles the Lee/Collier county
line, east of I-75, and predominately consists of State-owned
conservation lands (26,313 ac (10,648 ha)) and private lands (17,324 ac
(7,011 ha)). The largest conservation landholdings within this unit are
Corkscrew Regional Ecosystem Watershed and the National Audubon
Society's Corkscrew Swamp Sanctuary; other smaller conservation lands
also occur within this unit (for more information, see Conservation
Lands Within Florida Bonneted Bat Final Critical Habitat Designation
under Supporting and Related Material in Docket No. FWS-R4-ES-2019-0106
on https://www.regulations.gov).
Unit 5 contains all of the essential physical or biological
features for the Florida bonneted bat and is considered occupied at the
time of listing based on documented presence of Florida bonneted bats
within the unit. Habitat within the Corkscrew Unit provides ecological
diversity (i.e., cypress and hydric flatwoods) and includes areas
identified as having HCV. Corkscrew
[[Page 16651]]
Swamp Sanctuary was established to protect one of the largest remaining
stands of cypress in North America, and this area likely includes high-
quality roosting habitat. The area also provides connectivity between
Babcock-Webb WMA and areas south. The natural habitat within Unit 5
serves as important habitat in an area that is otherwise under high
development pressure.
The physical or biological features essential to the conservation
of the Florida bonneted bat in Unit 5 may require special management
considerations or protection due to the following: Habitat loss,
fragmentation, or degradation from changes in land use (e.g., land
clearing for residential/commercial development); lack of habitat
management and/or inadvertent impacts from land management practices
(e.g., prescribed fire, snag removal); and climate change (e.g., sea
level rise/inundation, saltwater intrusion, habitat alteration/
degradation) (see Special Management Considerations or Protection,
above).
Unit 6: Big Cypress Unit
Unit 6 encompasses 714,085 ac (288,980 ha) of lands in Collier,
Hendry, and Monroe Counties, Florida. The majority of Unit 6 is located
in Collier County, south of I-75; the remainder occurs in southern
Hendry County and mainland portions of Monroe County. This unit
predominately consists of Federal (533,227 ac (215,789 ha)) and State-
owned (152,559 ac (61,738 ha)) conservation lands. The largest
landholdings within this unit are Big Cypress National Preserve,
Florida Panther National Wildlife Refuge, Fakahatchee Strand Preserve
State Park, and Picayune Strand State Forest; other smaller
conservation lands also occur within this unit (for more information,
see Conservation Lands Within Florida Bonneted Bat Final Critical
Habitat Designation under Supporting and Related Material in Docket No.
FWS-R4-ES-2019-0106 on https://www.regulations.gov). We excluded
approximately 14,455 ac (5,850 ha) of Tribal lands (Seminole Tribe of
Florida) that occur within Unit 6 from this final critical habitat
designation (see Exclusions Based on Other Relevant Impacts, below).
Unit 6 contains all of the essential physical or biological
features for the Florida bonneted bat and is considered occupied at the
time of listing based on documented presence of Florida bonneted bats
within the unit. Habitat in the Big Cypress Unit, along with Unit 5,
provides ecological diversity (i.e., cypress and hydric flatwoods) and
includes areas identified as having HCV. Roosting habitat within this
unit is of particularly high quality. Despite challenges in accessing
this site to conduct surveys, a large Florida bonneted bat population
has been documented in this unit, including the discovery of 25 natural
roosts (the most of any unit). The Florida bonneted bats in this area
are genetically differentiated from those occurring elsewhere in the
range (Austin et al. 2022, entire), and thus contribute to the genetic
diversity of the overall population.
The physical or biological features essential to the conservation
of the Florida bonneted bat in Unit 6 may require special management
considerations or protection due to the following threats: Habitat
loss, fragmentation, or degradation from changes in land use (e.g.,
land clearing for residential, commercial, transportation, or energy-
related development); lack of habitat management and/or inadvertent
impacts from land management practices (e.g., prescribed fire, snag
removal, habitat and hydrologic restoration); excessive pesticide use;
and climate change (e.g., sea level rise/inundation, saltwater
intrusion, habitat alteration/degradation, coastal squeeze) (see
Special Management Considerations or Protection, above).
Unit 7: Everglades Tree Islands Unit
Unit 7 encompasses 16,604 ac (6,719 ha) of lands in Miami-Dade
County, Florida, south of Tamiami Trail and west of Krome Avenue.
Nearly this entire unit is Federal land within Everglades National Park
(ENP; 16,596 ac (6,716 ha)).
Unit 7 contains all of the essential physical or biological
features for the Florida bonneted bat and is considered occupied at the
time of listing based on documented presence of Florida bonneted bats
within the unit. The Everglades Tree Islands Unit provides connectivity
between Unit 6 and the southeast coast (Units 8 and 9), allowing gene
flow between these populations. It also includes areas identified as
having HCV. Despite limited effort and challenges accessing the area to
conduct surveys, the Florida bonneted bat has been documented
throughout this unit.
The physical or biological features essential to the conservation
of the Florida bonneted bat in Unit 7 may require special management
considerations or protection due to the following threats: Lack of
habitat management and/or inadvertent impacts from land management
practices (e.g., prescribed fire, snag removal, habitat and hydrologic
restoration) and climate change (e.g., sea level rise/inundation,
saltwater intrusion, habitat alteration/degradation) (see Special
Management Considerations or Protection, above).
Unit 8: Long Pine Key Unit
Unit 8 encompasses 25,337 ac (10,253 ha) of lands in Miami-Dade
County, Florida, along ENP's Main Park Road (SR-9336) between Mahogany
Hammock and SW 237th Avenue. Nearly this entire unit is Federal land
within ENP (25,147 ac (10,177 ha)).
Unit 8 contains all of the essential physical or biological
features for the Florida bonneted bat and is considered occupied at the
time of listing based on documented presence of Florida bonneted bats
within the unit. Habitat in the unit provides ecological diversity
(i.e., pine rocklands) and includes areas identified as having HCV,
specifically high-quality roosting and foraging habitat within Long
Pine Key, the largest remaining contiguous occurrence of pine rockland
habitat. This unit includes the southernmost extent of the species'
range and provides additional connectivity between Units 6 and 9.
The physical or biological features essential to the conservation
of the Florida bonneted bat in Unit 8 may require special management
considerations or protection due to the following: Lack of habitat
management and/or inadvertent impacts from land management practices
(e.g., prescribed fire, snag removal) and climate change (e.g., sea
level rise/inundation, saltwater intrusion, habitat alteration/
degradation) (see Special Management Considerations or Protection,
above).
Unit 9: Miami Rocklands Unit
Unit 9 encompasses 4,281 ac (1,732 ha) of lands in Miami-Dade
County, Florida. This unit consists of 36 subunits located between
Tamiami Trail to the north and SR-9336 to the south, and is surrounded
by a dense urban matrix typical of the Miami metropolitan area. This
unit predominately consists of conservation lands owned by county
(2,458 ac (995 ha)), State (785 ac (318 ha)), and Federal (603 ac (244
ha)) agencies. The largest landholdings within this unit are Zoo Miami,
Larry and Penny Thompson Park, the U.S. Coast Guard Communication
Station, Navy Wells, and the Deering Estate. Many county-owned
preserves and parks, as well as other smaller conservation lands, also
occur within this unit (for more information, see Conservation Lands
Within Florida Bonneted Bat Final Critical Habitat Designation under
Supporting and Related Material in Docket No. FWS-R4-ES-2019-0106 on
[[Page 16652]]
https://www.regulations.gov). We excluded approximately 104 ac (42 ha)
from Unit 9 associated with the Coral Reef Commons HCP from this final
critical habitat designation (see Exclusions Based on Other Relevant
Impacts, below).
Unit 9 contains all of the essential physical or biological
features for the Florida bonneted bat and is considered occupied at the
time of listing based on documented presence of Florida bonneted bats
within the unit. The Miami Rocklands Unit represents the easternmost
extent of the species' range. Habitat in this unit provides ecological
diversity (i.e., pine rocklands) and includes areas identified as
having HCV. This unit includes remaining fragments of pine rockland and
rockland hammock habitat within an urbanized landscape. These fragments
of natural habitat are used extensively by Florida bonneted bats and
provide connectivity within the unit. Florida bonneted bats inhabiting
the area are the most genetically differentiated from those occurring
elsewhere in the range (Austin et al. 2022, entire), and thus
contribute to the genetic diversity of the overall population.
The physical or biological features essential to the conservation
of the Florida bonneted bat in Unit 9 may require special management
considerations or protection due to the following: Habitat loss,
fragmentation, or degradation from changes in land use (e.g., land
clearing for residential, commercial, transportation, or energy-related
development); lack of habitat management and/or inadvertent impacts
from land management practices (e.g., prescribed burns, snag removal,
habitat restoration); excessive pesticide use; and climate change
(e.g., sea level rise/inundation, saltwater intrusion, habitat
alteration/degradation, coastal squeeze) (see Special Management
Considerations or Protection, above).
Under section 4(a)(3)(B)(i) of the Act, we are exempting Homestead
Air Reserve Base (Base) lands (280 ac (113 ha)) from critical habitat
designation because the U.S. Air Force has an approved INRMP that
provides benefits to the Florida bonneted bat and its habitat (see
Exemptions, below, for more detailed information).
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 (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
[[Page 16653]]
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 significantly alter roosting or foraging
habitat or habitat connectivity such that they appreciably diminish the
value of critical habitat as a whole. Such activities may include, but
are not limited to: Land clearing for residential, commercial,
transportation, energy-related or other development; water diversion,
drainage, or wetland loss or conversion; and excessive alteration of
natural lighting (that disrupts roosting, movements, or foraging
conditions or impacts prey). These activities could destroy Florida
bonneted bat roosting and foraging sites (necessary for food, shelter,
protection from predation, and reproduction), reduce habitat conditions
below what is necessary for the species' survival and growth, and/or
eliminate or reduce the habitat necessary for successful reproduction,
dispersal, and population expansion (see Physical or Biological
Features Essential to the Conservation of the Species, above).
(2) Actions that would significantly alter vegetation structure or
composition such that they appreciably diminish the value of critical
habitat as a whole. Such activities could include, but are not limited
to: Vegetation removal conducted in a manner that leads to significant,
irreversible diminishment of physical or biological features essential
to the conservation of the Florida bonneted bat. Habitat management or
restoration activities that are intended to benefit Florida bonneted
bat critical habitat (e.g., habitat or hydrologic restoration,
prescribed burning and other forest management activities, or removal
of invasive plants), following state and federal guidelines, and with
previously approved management plans, under most circumstances would
not significantly adverselyalter designated critical habitat. These
activities could affect habitat that provides for the Florida bonneted
bat's roosting and rearing, foraging and prey, refuge from short-term
changes to habitat, and/or protection from predation (see Physical or
Biological Features Essential to the Conservation of the Species,
above).
(3) Actions that would significantly reduce suitability of habitat
or impact prey base (e.g., availability, abundance, density, diversity)
such that they appreciably diminish the value of critical habitat as a
whole. These actions include, but are not limited to: Hydrologic
alteration, excessive pesticide applications, or excessive alteration
of natural lighting that impact prey or alter foraging behavior or
movement. These activities could significantly modify habitat that
currently provides adequate prey and space for foraging for the Florida
bonneted bat (see Physical or Biological Features Essential to the
Conservation of the Species, above).
Activities that the Service may, during a consultation under
section 7(a)(2) of the Act, consider likely to adversely affect
critical habitat but not likely to destroy or adversely modify critical
habitat include actions that significantly affect the unit or subunit's
ability to fulfill its primary functions (e.g., connectivity, foraging
or roosting habitat, genetic representation), but do not appreciably
diminish the value of critical habitat as a whole. Such activities may
include a landscape-scale hydrologic restoration project that would
convert large amounts of roosting habitat to foraging habitat within a
unit; development that would eliminate a small amount of high-value
foraging area or affect a known corridor; or habitat or invasive
species management programs that are overall beneficial to Florida
bonneted bat habitat but may result in inadvertent, but significant,
impacts to roosting habitat.
When conducted with guidance from the Service or using established
best management practices (BMPs) that prevent or minimize impacts, the
actions mentioned above are beneficial and are encouraged as a part of
standard land management practices. Avoidance and minimization measures
can also reduce the impacts of habitat loss and other impacts from
development projects, habitat alteration, and habitat conversion.
General guidance has already been developed and is in use (see the
Florida Bonneted Bat Consultation Guidelines, appendices D and E, and
the Florida Bonneted Bat Avoidance and Minimization Measures under
Supporting and Related Material in Docket No. FWS-R4-ES-2019-0106 on
https://www.regulations.gov); additional guidance is under development
to address habitat management practices on conservation lands.
Other activities that the Service may consider that may affect, but
are unlikely to adversely affect, critical habitat include actions that
are wholly beneficial (i.e., those that maintain, improve, or restore
the functionality of critical habitat for the Florida bonneted bat
without causing adverse effects to the essential physical or biological
features), discountable (i.e., unlikely to occur), or insignificant. In
such cases, the Act's section 7 consultation requirements can be
satisfied through the informal concurrence process.
Whether an action will have insignificant effects must be
considered within the context of the unit or subunit in which the
action occurs. A localized reduction in roosting or foraging habitat
within a stand may have such a small impact on the essential physical
or biological features within that stand that a ``not likely to
adversely affect'' determination is appropriate. Similarly, effects to
roosting habitat may be negligible where a hazard tree removal project
occurs in a stand with many suitable roosting trees.
Exemptions
Application of Section 4(a)(3) of the Act
The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a)
required each military installation that includes land and water
suitable for the conservation and management of natural resources to
complete an integrated natural resources management plan (INRMP) by
November 17, 2001. An INRMP integrates implementation of the military
mission of the installation with stewardship of the natural resources
found on the base. Each INRMP includes:
(1) An assessment of the ecological needs on the installation,
including the need to provide for the conservation of listed species;
(2) A statement of goals and priorities;
(3) A detailed description of management actions to be implemented
to provide for these ecological needs; and
(4) A monitoring and adaptive management plan.
Among other things, each INRMP must, to the extent appropriate and
applicable, provide for fish and wildlife management; fish and wildlife
habitat enhancement or modification; wetland protection, enhancement,
and restoration where necessary to support fish and wildlife; and
enforcement of applicable natural resource laws.
The National Defense Authorization Act for Fiscal Year 2004 (Pub.
L. 108-136) amended the Act to limit areas eligible for designation as
critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16
U.S.C. 1533(a)(3)(B)(i)) provides that the Secretary shall not
designate as critical habitat any lands or other geographical areas
owned or controlled by the Department of Defense
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(DoD), or designated for its use, that are subject to an INRMP prepared
under section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary
determines in writing that such plan provides a benefit to the species
for which critical habitat is proposed for designation.
We consult with the military on the development and implementation
of INRMPs for installations with listed species. We analyzed INRMPs
developed by military installations located within the range of the
critical habitat designation for Florida bonneted bat to determine if
they meet the criteria for exemption from critical habitat under
section 4(a)(3) of the Act. The following areas are DoD lands with
completed, Service-approved INRMPs within the critical habitat
designation.
Approved INRMPs
For discussion of the approved INRMP for Avon Park Air Force Range
(Unit 1: Kissimmee Unit; 99,523 ac (40,276 ha)), see Exemptions in the
proposed critical habitat rule (85 FR 35510, June 10, 2020, p. 35531).
For discussion of the approved INRMP for Homestead Air Reserve Base
(Unit 9: Miami Rocklands Unit--Subunits KK, LL; 280 ac (113 ha)), see
Exemptions in the revised proposed critical habitat rule (87 FR 71466,
November 22, 2022, p. 71480).
In accordance with section 4(a)(3)(B)(i) of the Act, we have
determined that the identified lands are subject to Avon Park Air Force
Range's and Homestead Air Reserve Base's INRMPs and that conservation
efforts identified in the INRMPs will provide a benefit to the Florida
bonneted bat. Therefore, lands within these installations are exempt
from critical habitat designation under section 4(a)(3) of the Act.
Accordingly, we are not including approximately 99,803 ac (40,389 ha)
of habitat in this final critical habitat designation because of these
exemptions.
Consideration of Impacts Under Section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that the Secretary shall
designate and make revisions to critical habitat on the basis of the
best available scientific data after taking into consideration the
economic impact, national security impact, and any other relevant
impact of specifying any particular area as critical habitat. The
Secretary may exclude an area from critical habitat based on economic
impacts, impacts on national security, or any other relevant impacts.
Exclusion decisions are governed by the regulations at 50 CFR 424.19
and the Policy Regarding Implementation of Section 4(b)(2) of the
Endangered Species Act (hereafter, the ``2016 Policy''; 81 FR 7226,
February 11, 2016)--both of which were developed jointly with the
National Marine Fisheries Service (NMFS). We also refer to a 2008
Department of the Interior Solicitor's opinion entitled, ``The
Secretary's Authority to Exclude Areas from a Critical Habitat
Designation under Section 4(b)(2) of the Endangered Species Act'' (M-
37016). 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 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.
When identifying the benefits of inclusion for an area, we consider
the additional regulatory benefits that area would receive due to the
protection from destruction of adverse modification as a result of
actions with a Federal nexus; the educational benefits of mapping
essential habitat for recovery of the listed species; and any benefits
that may result from a designation due to State or Federal laws that
may apply to critical habitat. In the case of the Florida bonneted bat,
the benefits of critical habitat include public awareness of the
presence of Florida bonneted bat and the importance of habitat
protection, and, where a Federal nexus exists, increased habitat
protection for the Florida bonneted bat due to the protection from
destruction or adverse modification of critical habitat.
When identifying the benefits of exclusion, we consider, among
other things, whether exclusion of a specific area is likely to result
in conservation or in the continuation, strengthening, or encouragement
of partnerships. Additionally, continued implementation of an ongoing
management plan that provides equal to or more conservation than a
critical habitat designation would reduce the benefits of including
that specific area in the critical habitat designation.
We evaluate the existence of a conservation plan when considering
the benefits of inclusion. We consider a variety of factors, including,
but not limited to, whether the plan is finalized; how it provides for
the conservation of the essential physical or biological features;
whether there is a reasonable expectation that the conservation
management strategies and actions contained in a management plan will
be implemented into the future; whether the conservation strategies in
the plan are likely to be effective; and whether the plan contains a
monitoring program or adaptive management to ensure that the
conservation measures are effective and can be adapted in the future in
response to new information.
After identifying the benefits of inclusion and the benefits of
exclusion, we carefully weigh the two sides to evaluate whether the
benefits of exclusion outweigh those of inclusion. If our analysis
indicates that the benefits of exclusion outweigh the benefits of
inclusion, we then determine whether exclusion would result in
extinction of the species. If exclusion of an area from critical
habitat will result in extinction, we will not exclude it from the
designation.
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 IEM and screening analysis, including a memo addressing supplemental
information on land values, which, together with our narrative and
interpretation of effects, we consider our economic analysis of the
critical habitat designation and related factors (IEc 2021a, b,
entire). The original DEA, dated February 14, 2020, and the memo
providing supplemental data supporting the original DEA, dated February
6, 2020, were made available for public review from June 10 through
August 10, 2020 (85 FR 35510; June 10, 2020). The IEM and the economic
analysis were revised prior to publication of the November 22, 2022,
revised proposed rule, and the revised analyses, both dated September
1, 2021, were made available for public review from November 22, 2022,
through January 23, 2023 (87 FR 71466, November 22, 2022). The economic
analysis addressed probable economic impacts of critical habitat
designation for Florida bonneted bat. Following the close of the
comment period on the November 22, 2022, revised proposed rule, we
reviewed and evaluated all information submitted during both comment
periods that may pertain to our consideration of the probable
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incremental economic impacts of this critical habitat designation.
Additional information relevant to the probable incremental economic
impacts of critical habitat designation for the Florida bonneted bat is
summarized below and available in the screening analysis for the
Florida bonneted bat (IEc 2021a, entire), available at https://www.regulations.gov.
As part of our screening analysis, we considered the types of
economic activities that are likely to occur within the areas likely
affected by the critical habitat designation. In our evaluation of the
probable incremental economic impacts that may result from this
designation of critical habitat for the Florida bonneted bat, first we
identified, in the revised IEM dated June 22, 2021, probable
incremental economic impacts associated with the following categories
of activities: (1) Commercial or residential development; (2)
transportation; (3) utilities; (4) energy (including solar, wind, and
oil and gas); (5) water management (including water supply, flood
control, and water quality); (6) recreation; (7) land management
(including prescribed burning and invasive species control); and (8)
habitat and hydrologic restoration. We considered each industry or
category individually. Additionally, we considered whether their
activities have any Federal involvement. Critical habitat designation
generally will not affect activities that do not have any Federal
involvement; under the Act, designation of critical habitat only
affects activities conducted, funded, permitted, or authorized by
Federal agencies. Because the Florida bonneted bat is already listed
under the Act, in areas where the species is present, Federal agencies
are currently required to consult with the Service under section 7 of
the Act on activities they fund, permit, or implement that may affect
the species. Consultations to avoid the destruction or adverse
modification of critical habitat will be incorporated into the existing
consultation process.
In our IEM, we attempted to clarify the distinction between the
effects that result from the species being listed and those
attributable to the critical habitat designation (i.e., difference
between the jeopardy and adverse modification standards) for the
Florida bonneted bat's critical habitat. The following specific
circumstances in this case help to inform our evaluation: (1) The
essential physical or biological features identified for critical
habitat are the same features essential for the life requisites of the
species, and (2) any actions that would result in sufficient harm to
constitute jeopardy to the Florida bonneted bat would also likely
adversely affect the essential physical or biological features of
critical habitat. The IEM outlines our rationale concerning this
limited distinction between baseline conservation efforts and
incremental impacts of the designation of critical habitat for this
species. This evaluation of the incremental effects has been used as
the basis to evaluate the probable incremental economic impacts of this
designation of critical habitat.
The critical habitat designation for the Florida bonneted bat
consists of nine units, all occupied by the species, totaling 1,160,625
ac (469,688 ha) and including lands under Federal, State, county,
local, and private ownership (see table 1, above). Because all areas
are occupied, the economic impacts of implementing the rule through
section 7 of the Act will most likely be limited to additional
administrative effort to consider adverse modification. This finding is
based on the following factors:
Any activities with a Federal nexus occurring within
occupied habitat will be subject to section 7 consultation requirements
regardless of critical habitat designation, due to the presence of the
listed species; and
In most cases, project modifications requested to avoid
adverse modification are likely to be the same as those needed to avoid
jeopardy in occupied habitat.
Our analysis considers the potential need to consult on
development, transportation, utilities, land management, habitat
restoration, and other activities authorized, undertaken, or funded by
Federal agencies within critical habitat. The total incremental section
7 costs associated with this designation are estimated to be less than
$70,800 per year, with the highest costs expected in Unit 6 (IEc 2021a,
pp. 2, 25). While the designated critical habitat area is relatively
large, incremental section 7 costs are kept comparatively low due to
the strong baseline protections that already exist for this species due
to its listed status, the existence of a consultation area map that
alerts managing agencies about the location of the species and its
habitat, and the presence of other listed species in the area.
Florida Department of Transportation (FDOT) Rights-of-Way
Based on a request for exclusion from FDOT, we are examining the
benefits of inclusion or exclusion of areas of critical habitat that
overlap with FDOT rights-of-way in all critical habitat units (Units 1-
9). FDOT requested exclusion because they expect this critical habitat
designation to significantly increase consultation actions for the
regular and frequent activities for work FDOT conducts within its
transportation rights-of-way, thus resulting in an undue economic
hardship to FDOT. Because all critical habitat units are occupied, any
inclusion of rights-of-way would be occupied areas. FDOT receives
Federal agency funding and has assumed responsibility for environmental
reviews from the Federal Highway Administration. It also receives
authorization (U.S. Army Corps of Engineers) for many of their
activities along their rights-of-way.
Benefits of Inclusion
The principal benefit of including an area in critical habitat
designation is the requirement of Federal agencies to ensure that
actions that they authorize, fund, or carry out are not likely to
result in the destruction or adverse modification of any designated
critical habitat, which is the regulatory standard of section 7(a)(2)
of the Act under which consultation is completed. Federal agencies must
also consult with the Service on actions that may affect a listed
species and ensure their actions are not likely to jeopardize the
continued existence of such species. The analysis of effects to
critical habitat is a separate and different analysis from that of the
effects to the species. Therefore, the difference in outcomes of these
two analyses represents the regulatory benefit of critical habitat. In
some cases, the outcome of these analyses will be similar, because
effects to critical habitat will often result in effects to the
species. This would generally be in cases where the species is
considered present in the action area and may be affected by the
proposed action and when any voluntary or required measures to avoid
jeopardy are the same as those measures to avoid destruction or adverse
modification of critical habitat; that is the case here. Additionally,
there may be educational benefits associated with the designation of
critical habitat. Thus, critical habitat designation may provide
greater benefits to the recovery of a species than listing would alone.
Critical habitat designation is expected to provide some benefit
(although likely less of a benefit than if the units were unoccupied)
through the conservation measures associated with future section 7
consultations associated with FDOT actions that involve a Federal
nexus. Another possible benefit of including lands in critical habitat
is public and agency education regarding the potential conservation
value of these areas. For FDOT actions without a
[[Page 16656]]
Federal nexus, there is no requirement to consider effects to critical
habitat, but there is still a requirement to consider potential effects
to the species itself (e.g., take of a listed species). Designation of
critical habitat would provide educational benefits by informing
Federal agencies and the public about the presence of listed species
within FDOT rights-of-way. Florida bonneted bats are typically
associated with a diversity of ecological communities, including pine
rocklands, cypress communities, hydric pine flatwoods, mesic pine
flatwoods, and high pine, but they also occur in a variety of other
habitats that provide adequate prey and space for foraging (e.g.,
freshwater edges and freshwater herbaceous wetlands, prairies, wetland
and upland shrub communities, and wetland and upland forests),
including habitat edges adjacent to roads and mowed areas (see Physical
or Biological Features Essential to the Conservation of the Species,
above). FDOT rights-of-way contain the physical or biological features
essential to the conservation of the species, and these rights-of-way
overlap designated critical habitat units, all of which are occupied by
Florida bonneted bats.
Including FDOT rights-of-way in designated critical habitat
provides an opportunity to highlight FDOT rights-of-way as important
for the conservation of the species, thus increasing awareness of the
species and its habitat use and needs. Therefore, we foresee
educational value that a designation would be expected to provide to
FDOT, Federal agencies, and the public. There is also the possible
benefit that additional funding could be generated for habitat
improvement by an area being designated as critical habitat. Some
funding sources may rank a project higher if the area is designated as
critical habitat.
We also evaluated whether there were any conservation plans or
other conservation measures that may reduce the benefits of including
FDOT rights-of-way in this designation of critical habitat. However,
there are no specific Florida bonneted bat management plans, habitat
plans, or specific conservation measures that have been developed by
FDOT that would provide a conservation benefit to the Florida bonneted
bat in these areas.
Thus, we find that inclusion of areas that overlap with FDOT
rights-of-way in designated critical habitat for the Florida bonneted
bat would provide: (1) A regulatory benefit when there is a Federal
nexus; and (2) significant educational benefits for the Florida
bonneted bat and its habitat.
Benefits of Exclusion
When considering the benefits of exclusion, we consider, among
other things, whether exclusion of a specific area is likely to result
in conservation or in the continuation, strengthening, or encouragement
of partnerships. We expect to continue to work with FDOT on efforts to
conserve the Florida bonneted bat and other co-occurring federally
listed species. Working with our Federal partners or, in the case of
FDOT, entities that have assumed some responsibility from a Federal
partner, there are opportunities to develop section 7(a)(1)
conservation strategies and programmatic section 7(a)(2) consultations
to streamline regulatory procedures and benefit listed species. There
are also opportunities to develop conservation plans for non-Federal
actions to streamline regulatory compliance.
We also considered the potential economic impact of designating
critical habitat. The total number of future section 7 consultations
expected over the next 10 years are modest at approximately 4 formal
consultations, 19 informal consultations, and 2 technical assistance
actions (IEc 2021a, p. 2); however, it is anticipated that all FDOT
projects would result in only informal consultation on Florida bonneted
bat critical habitat, each of which is estimated to have a total cost
of $2,600 compared to estimated costs of $5,300 for a formal
consultation or $9,800 for a programmatic consultation (IEc 2021a, pp.
10, 12-15, 18, 24). There is not expected to be any difference between
a jeopardy analysis and a destruction or adverse modification analysis
conducted as part of the consultation because threats to the Florida
bonneted bat are largely habitat related. Because all areas of critical
habitat are occupied, there would always be a consultation due to the
presence of the species when there is a Federal nexus, and the
designation of critical habitat would then result in only minor
additional administrative economic costs due to the additional analysis
required for the destruction or adverse modification analysis. The
Service has developed a consultation area map (see Florida Bonneted Bat
Consultation Guidelines under Supporting and Related Material in Docket
No. FWS-R4-ES-2019-0106 on https://www.regulations.gov), which is
routinely used by FDOT, that can help streamline consultation and
reduce the administrative burden associated with consultation. The
Florida Bonneted Bat Consultation Guidelines alert managing agencies
about the location of the species and its habitat. Agencies can use the
consultation guidelines to screen projects for potential impacts to the
species; to determine whether additional consultation with the Service
is required; and, where appropriate, to reach a determination that an
action may affect, but is not likely to adversely affect, designated
critical habitat. Prior to publication of this final rule, the Service
updated the consultation guidelines to include critical habitat for the
Florida bonneted bat, which increases the usefulness of this tool to
FDOT for section 7 consultations involving Florida bonneted bat
critical habitat. Therefore, we anticipate that this will help
streamline consultation for FDOT and reduce the administrative burden
associated with consultation, thus reducing the overall cost of
consultation to FDOT associated with this critical habitat designation.
The total estimated cost of considering destruction or adverse
modification of Florida bonneted bat critical habitat during all
section 7 consultations will result in incremental costs of
approximately $70,800 per year, of which approximately $50,800 are the
incremental costs associated with all informal consultations (IEc
2021a, p. 25). Incremental costs for FDOT are expected to only comprise
a portion of the annual estimated incremental costs, although FDOT is
one of several agencies most likely to consult with the Service with
regard to the Florida bonneted bat over the next 10 years. It is
estimated that approximately 62 FDOT projects may intersect with
critical habitat in Units 1 through 6; there are no planned FDOT
projects in or near Units 7 through 9 (IEc 2021a, p. 8). Thus,
excluding the rights-of-way could moderately reduce costs for FDOT.
Benefits of Inclusion Outweigh the Benefits of Exclusion
In weighing the benefits of including versus the benefits of
excluding FDOT rights-of-way in our critical habitat designation, we
find that the benefits of inclusion of these lands outweigh the
benefits of exclusion of these lands in the designation. The benefits
of exclusion are small and are primarily the avoidance of potential
future costs due to section 7 consultation. Because the entire critical
habitat designation is occupied by the Florida bonneted bat, any
consultation would result from the presence of a listed species; there
would be an additional minor administrative cost for the destruction or
adverse modification analysis. Any project modifications to avoid
destruction or adverse modification would likely be
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the same as those modifications already undertaken to avoid jeopardy;
thus, we anticipate that conducting a destruction or adverse
modification analysis would have only a minor administrative cost
beyond the cost of the analysis that would already be conducted to
avoid jeopardy.
In contrast, the benefits of inclusion are higher than those of
exclusion because of educational opportunities and the regulatory
benefit of potential section 7 consultations. Because critical habitat
is one conservation tool that can contribute to the recovery of the
species, the recovery of the Florida bonneted bat is best served by the
inclusion of FDOT rights-of-way in critical habitat units. Further,
there are no specific Florida bonneted bat management plans, habitat
plans, or specific conservation measures that have been developed by
FDOT that would provide a conservation benefit to the Florida bonneted
bat in these areas. Therefore, we conclude that the benefits of
inclusion are greater than the benefits of exclusion, and we are
including FDOT rights-of-way in the designation of critical habitat for
the Florida bonneted bat.
Florida Power and Light (FPL) Power Line Easements and Rights-of-Way
Based on a request for exclusion from FPL, we are examining the
benefits of inclusion or exclusion of areas of critical habitat in
Units 2, 3, 5, 6, 8, and 9 that overlap with FPL power line easements
and rights-of-way. FPL requested exclusion because they expect this
critical habitat designation to significantly increase costs and time
to conduct activities associated with existing and potential future
facilities within its power line easements and rights-of-way, thus
resulting in an undue economic hardship to FPL. Because all critical
habitat units are occupied, any inclusion of power line easements and
rights-of-way would be occupied areas. In total, FPL has approximately
73 mi (118 km) of transmission lines and 46 mi (74 km) of distribution
lines within power line easements and rights-of-way that overlap with
critical habitat, with 21 mi (33 km) of transmission lines and 2.5 mi
(4 km) of distribution lines in Unit 2, 40 mi (64 km) of transmission
lines and 12 mi (20 km) of distribution lines in Unit 3, 10 mi (16 km)
of transmission lines and 3 mi (5 km) of distribution lines in Unit 5,
15 mi (24 km) of distribution lines in Unit 6, 0.05 mi (0.07 km) of
distribution lines in Unit 8, and 2 mi (4 km) of transmission lines and
13 mi (21 km) of distribution lines in Unit 9. FPL maintains existing
facilities on Federal lands and receives Federal agency funding (e.g.,
U.S. Department of Energy) or authorization (e.g., U.S. Army Corps of
Engineers) for many of their activities within their power line
easements and rights-of-way.
Benefits of Inclusion
The principal benefit of including an area in a critical habitat
designation is the requirement of Federal agencies to ensure that
actions that they authorize, fund, or carry out are not likely to
result in the destruction or adverse modification of any designated
critical habitat, which is the regulatory standard of section 7(a)(2)
of the Act under which consultation is completed. Federal agencies must
also consult with the Service on actions that may affect a listed
species and ensure their actions are not likely to jeopardize the
continued existence of such species. The analysis of effects to
critical habitat is a separate and different analysis from that of the
effects to the species. Therefore, the difference in outcomes of these
two analyses represents the regulatory benefit of critical habitat. In
some cases, the outcome of these analyses will be similar, because
effects to critical habitat will often result in effects to the
species. This would generally be in cases where the species is
considered present in the action area and may be affected by the
proposed action and when any voluntary or required measures to avoid
jeopardy are the same as those measures to avoid destruction or adverse
modification of critical habitat; that is the case here. Additionally,
there may be educational benefits associated with the designation of
critical habitat. Thus, critical habitat designation may provide
greater benefits to the recovery of a species than listing would alone.
Critical habitat designation is expected to provide some benefit
(although likely less of a benefit than if the units were unoccupied)
through the conservation measures associated with future section 7
consultations associated with FPL actions that involve a Federal nexus.
Another possible benefit of including lands in critical habitat is
public and agency education regarding the potential conservation value
of these areas. For FPL actions without a Federal nexus, there is no
requirement to consider effects to critical habitat, but there is still
a requirement to consider potential effects to the species itself
(e.g., take of a listed species). Designation of critical habitat would
provide educational benefits by informing Federal agencies and the
public about the presence of listed species within FPL power line
easements and rights-of-way. Florida bonneted bats are typically
associated with a diversity of ecological communities, including pine
rocklands, cypress communities, hydric pine flatwoods, mesic pine
flatwoods, and high pine, but they also occur in a variety of other
habitats that provide adequate prey and space for foraging (e.g.,
freshwater edges and freshwater herbaceous wetlands, prairies, wetland
and upland shrub communities, and wetland and upland forests) (see
Physical or Biological Features Essential to the Conservation of the
Species, above). FPL power line easements and rights-of-way are within
these ecological communities and habitats occupied by Florida bonneted
bat; contain the physical or biological features essential to the
conservation of the species; and overlap designated critical habitat
units, all of which are occupied by Florida bonneted bats.
Including FPL power line easements and rights-of-way in designated
critical habitat provides an opportunity to highlight these areas as
important for the conservation of the species, thus increasing
awareness of the species and its habitat use and needs. Since the
publication of the June 10, 2020, proposed rule, communication between
the Service and FPL has increased, and designating critical habitat may
continue to encourage communication that provides an educational value.
Therefore, we anticipate that a critical habitat designation including
FPL power line easements and rights-of-way would provide continued
educational value to FPL, Federal agencies, and the public. There is
also the possible benefit that additional funding could be generated
for habitat improvement by an area being designated as critical
habitat. Some funding sources may rank a project higher if the area is
designated as critical habitat.
We also evaluated whether there were any conservation plans or
other conservation measures that may reduce the benefits of including
FPL power line easements and rights-of-way in this designation of
critical habitat. Before initiating work at a utility pole location,
FPL follows a well-established process for managing and protecting
migratory bird nests, including inspecting poles for migratory bird
nests, such as active woodpecker cavities. FPL plans to continue this
best practice and expand it to include determining the presence or
absence of any Florida bonneted bat or Florida bonneted bat active
roost. If a Florida bonneted bat or Florida bonneted bat roost is
confirmed within an FPL pole or on any FPL equipment during pre-removal
inspection, FPL will promptly notify and coordinate with the
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Service. However, there are no specific Florida bonneted bat management
plans, habitat plans, or formalized conservation measures that have
been developed by FPL that would provide a conservation benefit to the
Florida bonneted bat or its habitat in these areas. Thus, we find that
inclusion of areas that overlap with FPL power line easements and
rights-of-way in the critical habitat designation for the Florida
bonneted bat would provide: (1) A regulatory benefit when there is a
Federal nexus; and (2) significant educational benefits for the Florida
bonneted bat and its habitat.
Benefits of Exclusion
When considering the benefits of exclusion, we consider, among
other things, whether exclusion of a specific area is likely to result
in conservation or in the continuation, strengthening, or encouragement
of partnerships. We expect to continue to work with FPL on efforts to
conserve the Florida bonneted bat and other co-occurring federally
listed species. Working with our Federal partners, there are
opportunities to develop section 7(a)(1) conservation strategies and
programmatic section 7(a)(2) consultations to streamline regulatory
procedures and benefit listed species. There are also opportunities to
develop conservation plans for non-Federal actions to streamline
regulatory compliance.
We also considered the potential economic impact of designating
critical habitat. The total number of future section 7 consultations
expected over the next 10 years are modest at approximately 4 formal
consultations, 19 informal consultations, and 2 technical assistance
actions (IEc 2021a, p. 2). However, we estimate only approximately one
future FPL utility project-related action would require informal
consultation in each critical habitat unit annually over the next 10
years in addition to consultations forecast from their consultation
history for Florida bonneted bat in or near proposed critical habitat
areas (IEc 2021a, pp. 10-13, 15, 18-22). There is not expected to be
any difference between a jeopardy analysis and a destruction or adverse
modification analysis conducted as part of the consultation because
threats to the Florida bonneted bat are habitat-related. Because of
this, there would always be a consultation due to the presence of the
species when there is a Federal nexus, and the designation of critical
habitat would then result in only minor additional administrative
economic costs due to the additional analysis required for the
destruction or adverse modification analysis. The Service has developed
a consultation area map (see the Florida Bonneted Bat Consultation
Guidelines under Supporting and Related Material in Docket No. FWS-R4-
ES-2019-0106 on https://www.regulations.gov), which is routinely used
by FPL, that can help streamline consultation and reduce the
administrative burden associated with consultation. The Florida
Bonneted Bat Consultation Guidelines alert managing agencies about the
location of the species and its habitat. Agencies can use the
consultation guidelines to screen projects for potential impacts to the
species; to determine whether additional consultation with the Service
is required; and, where appropriate, to reach a determination that an
action may affect, but is not likely to adversely affect, designated
critical habitat. Prior to publication of this final rule, the Service
updated the consultation guidelines to include critical habitat for the
Florida bonneted bat, which further increases the usefulness of this
tool to FPL for section 7 consultations involving Florida bonneted bat
critical habitat. Therefore, we anticipate that this will help
streamline consultation for FPL and reduce the administrative burden
associated with consultation, thus reducing the overall cost of
consultation to FPL associated with this critical habitat designation.
The total estimated cost of considering destruction or adverse
modification of Florida bonneted bat critical habitat during section 7
consultation will result in incremental costs of approximately $70,800
per year throughout the entirety of designated critical habitat (IEc
2021a, p. 25); however, incremental costs for FPL are expected to only
comprise a portion of these annual estimated incremental costs. Thus,
excluding FPL's power line easements and rights-of-way could moderately
reduce costs for FPL.
Benefits of Inclusion Outweigh the Benefits of Exclusion
In weighing the benefits of including versus the benefits of
excluding FPL power line easements and rights-of-way in our critical
habitat designation, we find that the benefits of inclusion of these
lands outweigh the benefits of exclusion of these lands in the
designation. The benefits of exclusion are small and are primarily the
avoidance of potential future costs due to section 7 consultation.
Because the entire critical habitat designation is occupied by the
Florida bonneted bat, any consultation would result from the presence
of a listed species; there would be an additional minor administrative
cost for the destruction or adverse modification analysis. Any project
modifications to avoid destruction or adverse modification would likely
be the same as those modifications already undertaken to avoid
jeopardy; thus, we anticipate that conducting a destruction or adverse
modification analysis would have only a minor administrative cost
beyond the cost of the analysis that would already be conducted to
avoid jeopardy.
In contrast, the benefits of inclusion are greater than those of
exclusion. This is primarily because of the regulatory benefit
associated with future section 7 consultations when FPL undertakes
actions with a Federal nexus. In addition, as discussed above under
Benefits of Inclusion, in this instance we also expect significant
educational benefits from designating critical habitat along FPL power
line easements and rights-of-way. The clear mapping of critical habitat
provides helpful information to FPL to better understand where
additional management actions may be appropriate (with or without a
Federal nexus). FPL has no current Florida bonneted bat habitat
conservation plans or other management plans or agreements with the
Service in place to rely upon at this time. Therefore, coordination
with the Service would be expected to provide education about critical
habitat that would help FPL understand how to accomplish their needs
while supporting conservation of the Florida bonneted bat and its
habitat. This education would also be expected to result in better
regulatory coordination with the Service both when there is a Federal
nexus and when there is not a Federal nexus. The recovery of the
Florida bonneted bat is best served by the inclusion of FPL power line
easements and rights-of-way in designated critical habitat. Therefore,
we conclude that the benefits of inclusion are greater than the
benefits of exclusion, and we are including FPL power line easements
and rights-of-way in the designation of critical habitat for the
Florida bonneted bat.
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 Florida bonneted bat based on economic impacts.
Exclusions Based on Impacts on National Security and Homeland Security
Section 4(a)(3)(B)(i) of the Act may not cover all DoD lands or
areas that pose potential national-security concerns (e.g., a DoD
installation that is
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in the process of revising its INRMP for a newly listed species or a
species previously not covered). If a particular area is not covered
under section 4(a)(3)(B)(i), national-security or homeland-security
concerns are not a factor in the process of determining what areas meet
the definition of ``critical habitat.'' Nevertheless, when designating
critical habitat under section 4(b)(2) of the Act, we must consider
impacts on national security, including homeland security, on lands or
areas not covered by section 4(a)(3)(B)(i). Accordingly, we will always
consider for exclusion from the designation areas for which DoD,
Department of Homeland Security (DHS), or another Federal agency has
requested exclusion based on an assertion of national-security or
homeland-security concerns.
We consulted with DoD and DHS on this designation. Neither agency
identified any potential national-security impact nor requested an
exclusion from critical habitat based on potential national-security
impacts. Additionally, we did not receive any new information or public
comments regarding our intended determination to not exclude DHS and
DoD lands in Subunit 9O identified in the November 22, 2022, revised
proposed rule (87 FR 71466). Consequently, the Secretary is not
exercising her discretion to exclude any areas from this designation
based on impacts on national security.
Exclusions Based on Other Relevant Impacts
Under section 4(b)(2) of the Act, we consider any other relevant
impacts, in addition to economic impacts and impacts on national
security. To identify other relevant impacts that may affect the
exclusion analysis, we consider a number of factors, including whether
there are permitted conservation plans covering the species in the area
such as HCPs, safe harbor agreements, or candidate conservation
agreements with assurances (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.
When identifying the benefits of inclusion for an area, we consider
the additional regulatory benefits that area would receive due to the
protection from destruction or adverse modification as a result of
actions with a Federal nexus, the educational benefits of mapping
essential habitat for recovery of the listed species, and any benefits
that may result from a designation due to State or Federal laws that
may apply to critical habitat. In the case of the Florida bonneted bat,
the benefits of critical habitat include public awareness of the
presence of the Florida bonneted bat and the importance of habitat
protection and, where a Federal nexus exists, increased habitat
protection for the Florida bonneted bat due to protection from
destruction or adverse modification of critical habitat.
When identifying the benefits of exclusion, we consider, among
other things, whether exclusion of a specific area is likely to result
in conservation, or in the continuation, strengthening, or
encouragement of partnerships. Additionally, continued implementation
of an ongoing management plan that provides equal to or more
conservation than a critical habitat designation would reduce the
benefits of including that specific area in the critical habitat
designation.
We evaluate the existence of a conservation plan when considering
the benefits of inclusion. We consider a variety of factors, including,
but not limited to, whether the plan is finalized; how it provides for
the conservation of the essential physical or biological features;
whether there is a reasonable expectation that the conservation
management strategies and actions contained in a management plan will
be implemented into the future; whether the conservation strategies in
the plan are likely to be effective; and whether the plan contains a
monitoring program or adaptive management to ensure that the
conservation measures are effective and can be adapted in the future in
response to new information.
After identifying the benefits of inclusion and the benefits of
exclusion, we carefully weigh the two sides to evaluate whether the
benefits of exclusion outweigh those of inclusion. If our analysis
indicates that the benefits of exclusion outweigh the benefits of
inclusion, we then determine whether exclusion would result in
extinction of the species. If exclusion of an area from critical
habitat will result in extinction, we will not exclude it from the
designation.
Based on the information provided to us by entities seeking
exclusion, as well as additional public comments we received, and the
best scientific data available, we evaluated whether certain lands in
all final critical habitat units (i.e., Units 1-9) are appropriate for
exclusion from this final designation under section 4(b)(2) of the Act.
If our analysis indicates that the benefits of excluding lands from the
final designation outweigh the benefits of designating those lands as
critical habitat, then the Secretary may exercise her discretion to
exclude the lands from the final designation. In the paragraphs below,
we provide a detailed balancing analysis of the areas we are excluding
from the designation under section 4(b)(2) of the Act.
Private or Other Non-Federal Conservation Plans Related to Permits
Under Section 10 of the Act
HCPs for incidental take permits under section 10(a)(1)(B) of the
Act provide for partnerships with non-Federal entities to minimize and
mitigate impacts to listed species and their habitats. In some cases,
HCP permittees agree to do more for the conservation of the species and
their habitats on private lands than designation of critical habitat
would provide alone. We place great value on the partnerships that are
developed during the preparation and implementation of HCPs.
CCAAs and SHAs are voluntary agreements designed to conserve
candidate and listed species, respectively, on non-Federal lands. In
exchange for actions that contribute to the conservation of species on
non-Federal lands, participating property owners are covered by an
``enhancement of survival'' permit under section 10(a)(1)(A) of the
Act, which authorizes incidental take of the covered species that may
result from implementation of conservation actions, specific land uses,
and, in the case of SHAs, the option to return to a baseline condition
under the agreements. We also provide enrollees assurances that we will
not impose further land-, water-, or resource-use restrictions, or
require additional commitments of land, water, or finances, beyond
those agreed to in the agreements.
When we undertake a discretionary section 4(b)(2) exclusion
analysis, we will always consider areas covered by an approved CCAA/
SHA/HCP, and we anticipate consistently excluding such areas if
incidental take caused by the activities in those areas is covered by
the permit under section 10 of the Act and the CCAA/SHA/HCP meets all
of the following three factors (see the 2016 section 4(b)(2) policy for
additional details):
a. The permittee is properly implementing the CCAA/SHA/HCP and
[[Page 16660]]
is expected to continue to do so for the term of the agreement. A CCAA/
SHA/HCP is properly implemented if the permittee is, and has been,
fully implementing the commitments and provisions in the CCAA/SHA/HCP,
implementing agreement, and permit.
b. The species for which critical habitat is being designated is a
covered species in the CCAA/SHA/HCP, or very similar in its habitat
requirements to a covered species. The recognition that we extend to
such an agreement depends on the degree to which the conservation
measures undertaken in the CCAA/SHA/HCP would also protect the habitat
features of the similar species.
c. The CCAA/SHA/HCP specifically addresses the habitat of the
species for which critical habitat is being designated and meets the
conservation needs of the species in the planning area.
Coral Reef Commons (CRC) Habitat Conservation Plan
CRC is a mixed-use community, which consists of 900 apartments,
retail stores, restaurants, and parking. In 2017, an HCP and associated
permit under section 10 of the Act were developed and issued,
respectively, for the CRC development. We have determined that lands
associated with the CRC HCP were included within the boundaries of our
November 22, 2022, revised proposed critical habitat rule for the
Florida bonneted bat. These lands include an on-site preserve and an
off-site mitigation area, both of which overlap with proposed Subunit
9O (composing approximately 6 percent of the subunit and approximately
3 percent of the unit as a whole).
Specifically, as part of the HCP and permit, the on-site preserve
was established under a conservation encumbrance that will be managed
in perpetuity for pine rockland habitat and sensitive and listed
species, including the Florida bonneted bat. An additional area within
the University of Miami's Center for Southeastern Tropical Advanced
Remote Sensing facility site comprises the off-site mitigation area for
CRC. Portions of both the on-site preserve and the off-site mitigation
area (approximately 48 ac (19 ha) and 56 ac (23 ha), respectively) are
included in the area for proposed critical habitat designation and are
being managed to maintain healthy pine rockland habitat using invasive,
nonnative plant management; mechanical treatment; and prescribed fire.
This management addresses both the habitat and conservation needs of
the Florida bonneted bat.
Within the HCP, biological goals, objectives, and success criteria
of the HCP have been identified that apply to the on-site preserve and
the off-site mitigation area. For the on-site preserve, success
criteria that focus on restoration and conservation of pine rockland
habitat have been established, with initial targets set for 5 years
after initiation. For both the on-site preserve and the off-site
mitigation area, the CRC HCP also includes a plan for implementing a
long-term conservation program with mitigation measures to support
specific listed species, including the Florida bonneted bat. Within the
on-site preserve area, mitigation measures, some of which are designed
to offset impacts to the Florida bonneted bat (e.g., implementing
wildlife-friendly lighting, installing bat houses), are to be
implemented during construction and within the resulting development.
Since initiating the CRC HCP, pine rockland restoration efforts
have been conducted within all of the management units in both the on-
site preserve and the off-site mitigation area. Currently, the on-site
preserve meets or exceeds the success criteria described for
restoration and conservation of pine rockland habitat within the HCP.
However, partially because the site is still under construction,
mitigation measures associated with implementation of the conservation
program within the on-site preserve, such as incorporation of wildlife-
friendly lighting, have not been reported on or fully implemented. The
Service and CRC partnership is strong and working well; we are
currently communicating through the partnership to ensure full
implementation of the HCP and permit and considering whether slight
modifications to the conservation program would be possible under the
adaptive management strategy described within the HCP.
Benefits of Inclusion
The principal benefit of including an area in a critical habitat
designation is the requirement of Federal agencies to ensure that
actions that they authorize, fund, or carry out are not likely to
result in the destruction or adverse modification of any designated
critical habitat, which is the regulatory standard of section 7(a)(2)
of the Act under which consultation is completed. Federal agencies must
also consult with the Service on actions that may affect a listed
species and ensure their actions are not likely to jeopardize the
continued existence of such species. Therefore, the primary benefit of
including the on-site preserve and off-site mitigation area associated
with the CRC HCP is the potential additional regulatory oversight due
to section 7 consultations associated with future Federal actions.
However, because the Florida bonneted bat is a covered species under
the HCP and the pine rockland habitat management provisions in the HCP
are being implemented, and because we do not expect any future actions
in this area to be authorized, funded, or carried out by a Federal
agency, the additional benefits of the inclusion of these areas in
designated critical habitat may be limited. Therefore, the benefit of
the inclusion of these parcels in critical habitat is expected to be
minimal.
A secondary benefit to the inclusion of the on-site preserve and
off-site mitigation area in the critical habitat designation for the
Florida bonneted bat is an educational benefit through ensuring public
awareness regarding the importance of these specific parcels to the
Florida bonneted bat and its long-term conservation. Due to the high
potential of human-wildlife interaction with this species in the area
and the reliance of this species on the remaining pine rockland
habitat, the relative importance of these parcels to the species is
high; however, the added benefits of education from the designation of
critical habitat are likely minimal as the public was previously aware
of the area's importance due to the CRC HCP.
Benefits of Exclusion
The Florida bonneted bat is a species included in the CRC HCP. As
part of the HCP, the on-site preserve and off-site mitigation area were
established to protect and conserve the species and its habitat. While
some mitigation measures in the HCP that are important to Florida
bonneted bat habitat have not been implemented, the primary goals for
pine rockland habitat management and restoration established for these
parcels as part of the HCP and section 10 permit are being fully
implemented. The conservation partnership with the CRC development
advocate is well-established and could be significantly harmed by the
failure to acknowledge the conservation value of the HCP and the
considerable efforts that have been made to implement many of the
measures of the HCP and section 10 permit. Additionally, failure to
acknowledge these agreements would most likely send a chilling effect
to other potential conservation partners, which could render
conservation efforts in south Florida for the Florida bonneted bat and
other listed and at-risk
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species more difficult and potentially harm species and sensitive
habitats.
Benefits of Exclusion Outweigh the Benefits of Inclusion
We have found that, on balance, the benefits of excluding the on-
site preserve and off-site mitigation area associated with the CRC HCP
outweigh the benefits of including the specific parcels in designated
critical habitat for the Florida bonneted bat. We have determined that
benefits of preserving the conservation partnership with CRC and the
continued habitat management implemented on these parcels, including
the ability to modify or amend the HCP to incorporate appropriate
additional or improved mitigation measures for the Florida bonneted
bat, outweigh the potential additional regulatory benefits associated
with the inclusion of these parcels in the critical habitat
designation. Additionally, the acknowledgement of the productive
cooperative partnership is important for not only this species and
situation, but for other existing and future conservation efforts, and
to not exclude these lands given that there is a signed HCP that covers
the species would have a detrimental effect on existing and future
conservation partnerships. Further, while we find that the educational
benefits associated with including the parcels in the final designation
are valuable, we have determined that the public was educated about the
importance of these parcels to pine rockland habitat in our detailed
discussion of these areas and the HCP in our November 22, 2022, revised
proposed critical habitat rule (see ``Private or Other Non-Federal
Conservation Plans Related to Permits Under Section 10 of the Act'' and
the Summary of Exclusions Considered Under 4(b)(2) of the Act at 87 FR
71466, November 22, 2022, pp. 71484-71486). Moreover, the public was
highly engaged during the development of this HCP and, as such, is
already aware of the areas' importance for multiple species because of
the CRC HCP. Therefore, the existence of the HCP and the educational
benefits it has already provided reduce the educational benefit of
inclusion of these areas in designated critical habitat. We anticipate
minimal further benefit if the areas were to be included in this final
designation. Therefore, we are excluding those specific lands
associated with the CRC HCP that are in the on-site preserve and off-
site mitigation area from this final designation of critical habitat
for the Florida bonneted bat because we find that the benefit of
excluding them from designated critical habitat outweighs the benefit
of their inclusion.
Exclusion Will Not Result in Extinction of the Species
As discussed above, the habitat management provisions set forth in
the CRC HCP to manage the on-site preserve and off-site mitigation area
for the Florida bonneted bat and pine rockland habitat are being fully
implemented. Mitigation measures important to the species have not been
reported and have not been fully implemented; however, there is a
record that the project proponent is a cooperating partner in the
conservation of the Florida bonneted bat, and adaptive management
strategies that are built into the HCP provide the flexibility to
incorporate additional conservation measures. As a result, we do not
find that the exclusion of these specific areas from designated
critical habitat is a threat to the viability of the Florida bonneted
bat. Further, because the Florida bonneted bat is listed as an
endangered species and these areas are occupied, if at any time the
parcels are no longer being managed appropriately, the species
continues to be protected by the provisions of the Act and the permit
for the HCP can be revisited. We conclude that the exclusion of these
specific parcels from designated critical habitat will not result in
the extinction of the Florida bonneted bat.
We have further determined that there are no additional HCPs or
other management plans for the Florida bonneted bat within the critical
habitat designation.
Tribal Lands
Several Executive Orders, Secretary's Orders, and policies concern
working with Tribes. These guidance documents generally confirm our
trust responsibilities to Tribes, recognize that Tribes have sovereign
authority to control Tribal lands, emphasize the importance of
developing partnerships with Tribal governments, and direct the Service
to consult with Tribes on a government-to-government basis.
A joint Secretary's Order that applies to both the Service and
NMFS--Secretary's Order 3206, American Indian Tribal Rights, Federal-
Tribal Trust Responsibilities, and the Endangered Species Act (June 5,
1997) (S.O. 3206)--is the most comprehensive of the various guidance
documents related to Tribal relationships and Act implementation, and
it provides the most detail directly relevant to the designation of
critical habitat. In addition to the general direction discussed above,
the appendix to S.O. 3206 explicitly recognizes the right of Tribes to
participate fully in any listing process that may affect Tribal rights
or Tribal trust resources; this includes the designation of critical
habitat. Section 3(B)(4) of the appendix requires us to consult with
affected Tribes when considering the designation of critical habitat in
an area that may impact Tribal trust resources, Tribally-owned fee
lands, or the exercise of Tribal rights. That provision also instructs
us to avoid including Tribal lands within a critical habitat
designation unless the area is essential to conserve a listed species,
and it requires us to evaluate and document the extent to which the
conservation needs of the listed species can be achieved by limiting
the designation to other lands.
Our implementing regulations at 50 CFR 424.19 and the 2016 section
4(b)(2) policy are consistent with S.O. 3206. When we undertake a
discretionary exclusion analysis, in accordance with S.O. 3206, we
consult with any Tribe whose Tribal trust resources, Tribally-owned fee
lands, or Tribal rights may be affected by including any particular
areas in the designation, and we evaluate the extent to which the
conservation needs of the species can be achieved by limiting the
designation to other areas. When we undertake a discretionary 4(b)(2)
exclusion analysis, we always consider exclusion of Tribal lands, and
give great weight to Tribal concerns in analyzing the benefits of
exclusion.
However, S.O. 3206 does not override the Act's statutory
requirement of designation of critical habitat. As stated above, we
must consult with any Tribe when a designation of critical habitat may
affect Tribal lands or resources. The Act requires us to identify areas
that meet the definition of ``critical habitat'' (i.e., areas occupied
at the time of listing that contain the essential physical or
biological features that may require special management or protection
and unoccupied areas that are essential to the conservation of a
species), without regard to land ownership. While S.O. 3206 provides
important direction, it expressly states that it does not modify the
Secretary's statutory authority under the Act or other statutes.
Unit 6 (Big Cypress)--Seminole Tribe of Florida
We proposed 14,455 ac (5,850 ha) of critical habitat in Unit 6 that
occur on Seminole Tribe of Florida Trust lands. This area is considered
occupied at the time of listing and meets the definition of critical
habitat. However, the Seminole Tribe of Florida is recognized as a
sovereign nation and as such is the
[[Page 16662]]
appropriate entity to manage natural resources on Seminole Tribal land.
Further, the Seminole Tribe Wildlife Conservation Plan (see Supporting
and Related Material in Docket No. FWS-R4-ES-2019-0106 on https://www.regulations.gov) covers these lands for the protection of listed
and endangered species, including the Florida bonneted bat. The Service
reviewed this plan, together with the Seminole Tribe Fire Management
Plan and Forest Management Plan, and issued a non-jeopardy programmatic
biological opinion on December 19, 2014, to the Bureau of Indian
Affairs, which we amended on June 9, 2017 (see Supporting and Related
Material in Docket No. FWS-R4-ES-2019-0106 on https://www.regulations.gov). This biological opinion considered projects in
development, land management, temporary construction, and maintenance
categories, as described by the Tribe. The Wildlife Conservation Plan
includes conservation measures in place that support the Florida
bonneted bat and its habitat (e.g., limit impacts to potential roost
trees during prescribed burns and home site/access road construction,
maintain bonneted bat habitat through prescribed burning and
construction of bat houses). The conservation measures specifically
address conservation of roosting and foraging habitat (i.e., the first
four identified essential physical or biological features for the
species; see Summary of Essential Physical or Biological Features,
above) and maintenance of that habitat through active management;
therefore, the measures appear to meet the conservation needs of the
Florida bonneted bat within the area covered by the plan. We have a
productive working relationship with the Seminole Tribe of Florida and
coordinated with them during the critical habitat designation process.
Benefits of Inclusion
The principal benefit of including an area in a critical habitat
designation is the requirement of Federal agencies to ensure that
actions that they authorize, fund, or carry out are not likely to
result in the destruction or adverse modification of any designated
critical habitat, which is the regulatory standard of section 7(a)(2)
of the Act under which consultation is completed. Federal agencies must
also consult with the Service on actions that may affect a listed
species and ensure their actions are not likely to jeopardize the
continued existence of such species. The difference in the outcomes of
the jeopardy analysis and the destruction or adverse modification
analysis represents the regulatory benefit and costs of critical
habitat. Because the species occurs in the area, the regulatory
benefits of a critical habitat designation are limited to the
difference in consultation outcomes between avoidance of jeopardy and
destruction or adverse modification of critical habitat.
Designation of critical habitat on the Seminole Tribe of Florida
Trust lands of proposed Unit 6 could potentially benefit the Florida
bonneted bat because that area provides habitat for the species,
encompasses features essential to conservation of the species, and is
occupied by the species. However, section 7 consultations within the
proposed critical habitat area are anticipated to be rare, due to a
general lack of Federal actions requiring consultations in this area
beyond the actions already covered in the programmatic biological
opinion, and we do not expect this trend to change in the future (IEc
2021a, p. 15). With few section 7 consultations anticipated, we
anticipate limited regulatory benefits for the designation of critical
habitat for the Florida bonneted bat in this portion of proposed Unit
6. Therefore, the effect of a critical habitat designation on these
lands is minimized.
In addition to the few anticipated Federal actions within the area,
there is another regulatory process that applies to the proposed
critical habitat area that overlaps Seminole Tribe of Florida Trust
lands. The Seminole Tribe of Florida has created and implemented a
regulatory process that mirrors that of the Service's section 7
processes, but that has a greater level of review because they review
all proposed projects, even those lacking a Federal nexus. Similar to
the Service's section 7 process, they review projects to ensure that a
project is not likely to jeopardize the continued existence of any
federally endangered or threatened species or to result in the
destruction or adverse modification of designated critical habitat of
such species. They also examine conservation measures associated with
the project for their value in the conservation of these listed
species. The existence of this Tribal regulatory process reduces the
benefits of including their lands in critical habitat, and, because
this Tribal regulatory process is duplicative of ours, it makes our
process redundant.
A possible benefit is that the designation of critical habitat can
serve to educate the landowner and public regarding the potential
conservation value of an area, and this may focus and contribute to
conservation efforts by other parties by clearly delineating areas of
high conservation value for certain species. Any information about the
Florida bonneted bat and its habitat that reaches a wide audience,
including other parties engaged in conservation activities, would be
considered valuable. The Seminole Tribe of Florida is fully aware of
the importance of Florida bonneted bat habitat and conservation, and
their natural resource staff frequently provide education on these
topics. Given that regulatory actions have already informed the public
about the value of these areas and helped to focus potential
conservation actions and that the Tribe is already providing education
on these topics, the educational benefits from designating critical
habitat would be small.
Finally, there is the possible benefit that additional funding
could be generated for habitat improvement by an area being designated
as critical habitat. Some funding sources may rank a project higher if
the area is designated as critical habitat. Tribes often seek
additional sources of funding in order to conduct wildlife-related
conservation activities. Therefore, having an area designated as
critical habitat could improve the chances of receiving funding for
Florida bonneted bat habitat-related projects.
Benefits of Exclusion
The benefits of excluding these Tribal lands from designated
critical habitat are significant. We have determined that the primary
benefits that would be realized by foregoing the designation of
critical habitat on this area include: (1) Our deference to the Tribe
as a sovereign nation to develop and implement conservation and natural
resource management plans for their lands and resources, which may
include benefits to the Florida bonneted bat and its habitat that might
not otherwise occur; and (2) the continuance and strengthening of our
effective working relationships with the Tribe to promote conservation
of the Florida bonneted bat and its habitat, as well as other federally
listed species.
We have found that fish, wildlife, and other natural resources on
Tribal lands are better managed under Tribal authorities, policies, and
programs than through Federal regulations wherever possible and
practicable. As stated above, the Seminole Tribe of Florida has
developed their Wildlife Conservation Plan with a primary goal to
provide for sustainable use and protection of wildlife and other
natural resources for the benefit of the Seminole Tribe of Florida and
its members. The plan
[[Page 16663]]
strives to balance management objectives so that conformity with the
policy of the Act is achieved without the Tribe being faced with a
disproportionate burden. The plan offers resource management protocols
and measures for listed species and addresses: (1) Present conditions
and practices on the reservations and Tribal land; (2) alternatives
that allow the Tribe to continue growing while still protecting listed
species; (3) alternatives for mitigation of effects to listed species
for the continued growth of the Tribe; and (4) maintenance of the
existing level of scientific knowledge regarding the reservation and
its wildlife resources. The plan discusses the Florida bonneted bat and
proposes conservation measures related to prescribed burning and home
site/access road construction in the Big Cypress area. These
conservation measures are generally expected to be compatible with, and
benefit, conservation of the Florida bonneted bat. Overall, the
commitments toward management of Florida bonneted bat habitat by the
Seminole Tribe of Florida likely accomplish greater conservation than
would be available through a designation of critical habitat.
During this rulemaking process, we have communicated with the
Seminole Tribe of Florida to discuss how they might be affected by the
designation of critical habitat for the Florida bonneted bat. As such,
we have strengthened our existing beneficial relationship to support
Florida bonneted bat conservation. As part of our relationship, we have
provided technical assistance to the Seminole Tribe of Florida to
refine measures to conserve the Florida bonneted bat and its habitat on
their lands. These measures are contained within the Wildlife
Conservation Plan developed by the Tribe. Therefore, consistent with
our 2016 section 4(b)(2) policy, we place great weight on our working
relationship with the Seminole Tribe of Florida and determine that it
would be better maintained if these lands are excluded from the
designation of critical habitat for the Florida bonneted bat. We view
maintaining our partnership as a substantial benefit of exclusion.
Benefits of Exclusion Outweigh the Benefits of Inclusion
The benefits of excluding this area from critical habitat include
deference to the Tribe as a sovereign nation to manage its own lands,
continuing and strengthening our effective working relationship with
the Tribe, and working in collaboration and cooperation with the Tribe
to promote conservation of the Florida bonneted bat and its habitat.
The benefits of including Seminole Tribe of Florida lands in the
critical habitat designation are limited to the incremental benefits
gained through the regulatory requirement to consult under section 7
and consideration of the need to avoid destruction or adverse
modification of critical habitat, agency and educational awareness,
potential additional grant funding, and the implementation of other law
and regulations. However, due to the rarity of Federal actions
resulting in section 7 consultations within the proposed critical
habitat area, the benefits of a critical habitat designation are
minimal. The benefits of including these lands in this critical habitat
designation are further reduced by the Tribe's regulatory process that
mirrors the Service's section 7, as described above. In addition, the
benefits of consultation are further minimized because any conservation
measures that may have resulted from consultation are already provided
through the conservation benefits to the Florida bonneted bat and its
habitat from implementation of the Seminole Tribe Wildlife Conservation
Plan. Additionally, through the already beneficial working relationship
between the Service and the Tribe, the Service can provide technical
assistance and easily communicate as needed to benefit the conservation
of listed species, including the Florida bonneted bat. The Service's
working relationship with the Tribe will be better maintained if this
area located on Seminole Tribe of Florida lands in proposed Unit 6 is
excluded from the designation. We view this as a substantial benefit
since we are committed to cooperative relationships with Tribes for the
mutual benefit of endangered and threatened species, including the
Florida bonneted bat. For these reasons, we have determined that
designation of critical habitat in this area would have few, if any,
additional benefits beyond those that will result from the presence of
the species.
In summary, the benefits of including Seminole Tribe of Florida
lands in critical habitat are low and are limited to insignificant
educational benefits as well as the potential for additional funding
for habitat improvement projects. Educational opportunities would
predominately benefit members of the Tribe rather than the general
public, and even this benefit would be minimal because the Tribe is
already aware of the importance of Florida bonneted bat habitat and
conservation. However, the ability of the Tribe to manage natural
resources on their land without the perception of Federal Government
intrusion is a significant benefit. This philosophy is also consistent
with our published policies on Native American natural resource
management. In this particular case, exclusion from critical habitat is
consistent with Secretary's Order 3206, Executive Order 13175, and the
relevant provision of the Departmental Manual of the Department of the
Interior (512 DM 2). The exclusion of this area will likely also
provide additional benefits to the species that would not otherwise be
available, such as ensuring continued cooperative working relationships
with the Seminole Tribe of Florida. We find that the benefits of
excluding this area from critical habitat designation outweigh the
benefits of including this area and that these areas are not essential
to the conservation of the Florida bonneted bat.
Exclusion Will Not Result in Extinction of the Species
We have determined that exclusion of Seminole Tribe of Florida
lands will not result in extinction of the species. As discussed above
under Section 7 Consultation in the Effects of Critical Habitat
Designation discussion, if a Federal action or permitting occurs, the
known presence of Florida bonneted bat would require evaluation under
the jeopardy standard of section 7 of the Act, even absent the
designation of critical habitat, and thus will protect the species
against extinction. Furthermore, the Seminole Tribe of Florida has a
long-term record of conserving species and habitat and is committed to
protecting and managing their Tribal lands and species found on those
lands according to their Tribal and cultural management plans and
natural resource management objectives. In short, the Seminole Tribe of
Florida is committed to greater conservation measures on their land
than would be available through the designation of critical habitat.
Additionally, the area we are excluding (14,455 ac (5,850 ha)) would
have accounted for approximately 1 percent of areas we are designating
as critical habitat. Accordingly, we have determined that all 14,455 ac
(5,850 ha) of Seminole Tribe of Florida Trust lands within Unit 6 of
the proposed critical habitat designation are excluded under section
4(b)(2) of the Act because the benefits of exclusion outweigh the
benefits of inclusion and will not cause the extinction of the species.
Unit 1 (Kissimmee)--Miccosukee Tribe of Florida
We proposed 1.25 ac (0.5 ha) of critical habitat in Unit 1 that
occurs on Miccosukee Tribe of Florida fee lands.
[[Page 16664]]
This area is considered occupied at the time of listing and meets the
definition of critical habitat. However, the Miccosukee Tribe of
Florida is recognized as a sovereign nation and as such is the
appropriate entity to manage natural resources on Miccosukee Tribal
lands.
Benefits of Inclusion
The principal benefit of including an area in a critical habitat
designation is the requirement of Federal agencies to ensure that
actions that they authorize, fund, or carry out are not likely to
result in the destruction or adverse modification of any designated
critical habitat, which is the regulatory standard of section 7(a)(2)
of the Act under which consultation is completed. Federal agencies must
also consult with the Service on actions that may affect a listed
species, and ensure their actions are not likely to jeopardize the
continued existence of such species. The difference in the outcomes of
the jeopardy analysis and the destruction or adverse modification
analysis represents the regulatory benefit and costs of critical
habitat. Because the species occurs in the area, the regulatory
benefits of a critical habitat designation are limited to the
difference in consultation outcomes between avoidance of jeopardy and
destruction or adverse modification of critical habitat.
Designation of critical habitat on the Miccosukee Tribe of Florida
fee lands of proposed Unit 1 could potentially benefit the Florida
bonneted bat because that area provides habitat for the species,
encompasses features essential to conservation of the species, and is
occupied by the species. However, section 7 consultations within the
proposed critical habitat area are anticipated to be rare, due to a
general lack of Federal actions requiring consultations in this area,
and we do not expect this trend to change in the future (IEc 2021a, p.
10). With few section 7 consultations anticipated, we anticipate
limited regulatory benefits for the designation of critical habitat for
the Florida bonneted bat in this portion of proposed Unit 1. Therefore,
we would similarly expect limited additional conservation benefits
through the section 7 process from the inclusion of Miccosukee Tribe of
Florida fee lands in the final critical habitat designation.
A possible benefit is that the designation of critical habitat can
serve to educate the landowner and public regarding the potential
conservation value of an area, and this may focus and contribute to
conservation efforts by other parties by clearly delineating areas of
high conservation value for certain species. Any information about the
Florida bonneted bat and its habitat that reaches a wide audience,
including other parties engaged in conservation activities, would be
considered valuable.
Finally, there is the possible benefit that additional funding
could be generated for habitat improvement by an area being designated
as critical habitat. Some funding sources may rank a project higher if
the area is designated as critical habitat. Tribes often seek
additional sources of funding in order to conduct wildlife-related
conservation activities. Therefore, having an area designated as
critical habitat could improve the chances of receiving funding for
Florida bonneted bat habitat-related projects.
Benefits of Exclusion
The benefits of excluding these Tribal lands from designated
critical habitat are significant. We have determined that the primary
benefits that would be realized by foregoing the designation of
critical habitat on this area include: (1) Our deference to the Tribe
as a sovereign nation to develop and implement conservation and natural
resource management plans for their lands and resources, which may
include benefits to the Florida bonneted bat and its habitat that might
not otherwise occur; and (2) the continuance and strengthening of our
effective working relationship with the Tribe to promote conservation
of the Florida bonneted bat and its habitat, as well as other federally
listed species. We have found that fish, wildlife, and other natural
resources on Tribal lands are better managed under Tribal authorities,
policies, and programs than through Federal regulations wherever
possible and practicable. Additionally, this critical habitat
designation may compromise our working relationship with the Tribe,
which is essential to achieving our mutual goals of managing for
healthy ecosystems upon which the viability of populations of
endangered and threatened species depend. Therefore, consistent with
our 2016 section 4(b)(2) policy, we place great weight on our working
relationship with the Miccosukee Tribe of Florida and determine that it
would be better maintained if the Tribe's lands are excluded from the
designation of critical habitat for the Florida bonneted bat. We view
maintaining our partnership as a substantial benefit of exclusion.
Benefits of Exclusion Outweigh the Benefits of Inclusion
The benefits of excluding this area from critical habitat include
deference to the Tribe as a sovereign nation to manage its own lands,
continuing and strengthening our effective working relationships with
the Tribe, and working in collaboration and cooperation with the Tribe
to promote conservation of the Florida bonneted bat and its habitat.
The benefits of including the Miccosukee Tribe of Florida in the
critical habitat designation are limited to the incremental benefits
gained through the regulatory requirement to consult under section 7
and consideration of the need to avoid destruction or adverse
modification of critical habitat, agency and educational awareness,
potential additional grant funding, and the implementation of other law
and regulations. However, due to the rarity of Federal actions
resulting in section 7 consultations within the proposed critical
habitat area, the benefits of a critical habitat designation are
minimal. The Service's working relationship with the Tribe will be
better maintained if this area in proposed Unit 1 located on Miccosukee
Tribe of Florida lands is excluded from the designation. We view this
as a substantial benefit since we are committed to cooperative
relationships with Tribes for the mutual benefit of endangered and
threatened species, including the Florida bonneted bat. For these
reasons, we have determined that designation of critical habitat at
this site would have minimal additional benefits beyond those that will
result from the presence of the species.
In summary, the benefits of including Miccosukee Tribe of Florida
lands in critical habitat are low and are limited to insignificant
educational benefits and the potential for additional funding for
habitat improvements projects. Educational opportunities would
predominately benefit members of the Tribe rather than the general
public. However, the ability of the Tribe to manage natural resources
on their land without the perception of Federal Government intrusion is
a significant benefit. This philosophy is also consistent with our
published policies on Native American natural resource management. In
this particular case, exclusion from critical habitat is consistent
with Secretary's Order 3206, Executive Order 13175, and the relevant
provision of the Departmental Manual of the Department of the Interior
(512 DM 2). The exclusion of this area will likely also provide
additional benefits to
[[Page 16665]]
the species that would not otherwise be available, such as ensuring
continued cooperative working relationships with the Miccosukee Tribe
of Florida. We find that the benefits of excluding this area from
critical habitat designation outweigh the benefits of including this
area.
Exclusion Will Not Result in Extinction of the Species
We have determined that exclusion of Miccosukee Tribe of Florida
lands will not result in extinction of the species. As discussed above
under Section 7 Consultation in the Effects of Critical Habitat
Designation discussion, if a Federal action or permitting occurs, the
known presence of Florida bonneted bat would require evaluation under
the jeopardy standard of section 7 of the Act, even absent the
designation of critical habitat, and thus will protect the species
against extinction. Furthermore, the Miccosukee Tribe of Florida has a
long-term record of conserving species and habitat and is committed to
protecting and managing their Tribal lands and species found on those
lands according to their Tribal and cultural management plans and
natural resource management objectives. In short, the Miccosukee Tribe
of Florida is committed to greater conservation measures on their land
than would be available through the designation of critical habitat.
Additionally, the areas we are excluding (1.25 ac (0.5 ha)) would have
accounted for an infinitesimal portion of the total area we are
designating as critical habitat. Accordingly, we have determined that
all 1.25 ac (0.5 ha) of Miccosukee Tribe of Florida lands in Unit 1 of
the proposed critical habitat designation are excluded under section
4(b)(2) of the Act because the benefits of exclusion outweigh the
benefits of inclusion and will not cause the extinction of the species.
Summary of Exclusions
As discussed above, based on the information provided by entities
seeking exclusion, as well as any additional public comments we
received, we evaluated whether certain lands in the proposed critical
habitat designation for the Florida bonneted bat were appropriate for
exclusion from this final designation pursuant to section 4(b)(2) of
the Act. We are excluding the following areas from critical habitat
designation for the Florida bonneted bat: A total of 104 ac (42 ha)
within the Coral Reef Commons HCP on-site preserve and off-site
mitigation area in proposed Unit 9; a total of 14,455 ac (5,850 ha) of
Tribal lands of the Seminole Tribe of Florida in proposed Unit 6; and a
total of 1.25 ac (0.5 ha) of Tribal lands of the Miccosukee Tribe of
Florida land in proposed Unit 1.
Table 2--Areas Excluded From Critical Habitat Designation by Critical Habitat Unit for the Florida Bonneted Bat
----------------------------------------------------------------------------------------------------------------
Areas meeting
the definition Areas
of critical excluded, in
Unit Specific area habitat, in acres
acres (hectares)
(hectares)
----------------------------------------------------------------------------------------------------------------
Unit 1: Kissimmee............................. Miccosukee Tribe of Florida..... 1.25 (0.5) 1.25 (0.5)
Unit 6: Big Cypress........................... Seminole Tribe of Florida....... 14,455 (5,850) 14,455 (5,850)
Unit 9: Miami Rocklands....................... Coral Reef Commons.............. 104 (42) 104 (42)
----------------------------------------------------------------------------------------------------------------
Required Determinations
Regulatory Planning and Review (Executive Orders 12866, 13563, and
14094)
Executive Order 14094 reaffirms the principles of E.O. 12866 and
E.O 13563 and states that regulatory analysis should facilitate agency
efforts to develop regulations that serve the public interest, advance
statutory objectives, and are consistent with E.O. 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.
E.O. 12866, as reaffirmed by E.O. 13563 and E.O. 14094, provides
that the Office of Information and Regulatory Affairs (OIRA) in the
Office of Management and Budget (OMB) will review all significant
rules. OIRA in OMB waived E.O. 12866 review of this rule.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.),
as amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to
publish a notice of rulemaking for any proposed or final rule, it must
prepare and make available for public comment a regulatory flexibility
analysis that describes the effects of the rule on small entities
(i.e., small businesses, small organizations, and small government
jurisdictions). However, no regulatory flexibility analysis is required
if the head of the agency certifies the rule will not have a
significant economic impact on a substantial number of small entities.
The SBREFA amended the RFA to require Federal agencies to provide a
certification statement of the factual basis for certifying that the
rule will not have a significant economic impact on a substantial
number of small entities.
According to the Small Business Administration, small entities
include small organizations such as independent nonprofit
organizations; small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents; and small businesses (13 CFR 121.201). Small businesses
include manufacturing and mining concerns with fewer than 500
employees, wholesale trade entities with fewer than 100 employees,
retail and service businesses with less than $5 million in annual
sales, general and heavy construction businesses with less than $27.5
million in annual business, special trade contractors doing less than
$11.5 million in annual business, and agricultural businesses with
annual sales less than $750,000. To determine 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
[[Page 16666]]
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. The RFA does not require evaluation of the potential
impacts to entities not directly regulated. Moreover, Federal agencies
are not small entities. Therefore, because no small entities 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 periods on the
June 10, 2020, proposed critical habitat rule (85 FR 35510) and the
November 22, 2022, revised proposed rule (87 FR 71466) 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. As most of the area included in this final
critical habitat designation occurs on conservation lands
(approximately 91 percent), the likelihood of energy development within
critical habitat is low. 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 it will not produce a Federal mandate
of $100 million or more (adjusted annually for inflation) in any year;
that is, it is not a ``significant regulatory action'' under the
Unfunded Mandates Reform Act. The designation of critical habitat
imposes no obligations on State or local governments. By definition,
Federal agencies are not considered small entities, although the
activities they fund or permit may be proposed or carried out by small
entities. Additionally, 91 percent of the areas within critical habitat
units for the Florida bonneted bat are already managed for natural
resource conservation. Further, 9 percent of the designated critical
habitat for the Florida bonneted bat overlaps with designated critical
habitat for co-occurring federally listed species, which means that any
actions with a Federal nexus proposed in those areas are already
subject to the requirements of section 7 of the Act. Consequently, we
do not believe that this critical habitat designation will
significantly or uniquely affect small government entities. 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 Florida bonneted bat 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 critical habitat does not
[[Page 16667]]
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 Florida
bonneted bat 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 NEPA (42 U.S.C. 4321 et seq.) and do not require an environmental
analysis under NEPA. We published a notice outlining our reasons for
this determination in the Federal Register on October 25, 1983 (48 FR
49244). This includes listing, delisting, and reclassification rules,
as well as critical habitat designations. In a line of cases starting
with Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), the
courts have upheld this position.
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994
(Government-to-Government Relations with Native American Tribal
Governments; 59 FR 22951), Executive Order 13175 (Consultation and
Coordination with Indian Tribal Governments), and the Department of the
Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with federally recognized
Tribes on a government-to-government basis. In accordance with
Secretary's Order 3206 of June 5, 1997 (American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species Act),
we readily acknowledge our responsibilities to work directly with
Tribes in developing programs for healthy ecosystems, to acknowledge
that Tribal lands are not subject to the same controls as Federal
public lands, to remain sensitive to Indian culture, and to make
information available to Tribes.
The Seminole Tribe of Florida and the Miccosukee Tribe of Indians
of Florida are the main Tribes whose lands and trust resources may be
affected by this rule. There may be some other Tribes with trust
resources in the area, but we have no specific documentation of this
and have not received information with respect to other potential
Tribes within the designation area. We briefed both Tribes on the
development of the proposed critical habitat designation in October
2019. We provided notice of the publication of the June 10, 2020,
proposed rule and the availability of the DEA to both Tribes in June
2020, and we provided notice of the publication of the November 22,
2022, revised proposed rule and the availability of the revised DEA to
both Tribes in November 2022, to allow for the maximum time to submit
comments. In these notifications, we also described the exclusion
process under section 4(b)(2) of the Act and offered to engage in
further conversation. We offered both the Seminole Tribe and the
Miccosukee Tribe opportunities for further conversation about the
proposed and revised proposed critical habitat designations. We met
with the Miccosukee Tribe to discuss the June 10, 2020, proposed
critical habitat designation, but they did not request further
conversation on the November 22, 2022, revised proposed critical
habitat designation. We met with the Seminole Tribe in July 2020 and
July 2021 to discuss the proposed critical habitat designation, and
then again in December 2022 to discuss the revised proposed critical
habitat designation. Neither Tribe requested Government-to-Government
consultations. We considered these Tribal lands for exclusion from this
final critical habitat designation to the extent consistent with
[[Page 16668]]
the requirements of section 4(b)(2) of the Act and, subsequently,
excluded the Seminole Tribe of Florida and the Miccosukee Tribe of
Indians of Florida lands from this final designation. After considering
impacts of the critical habitat designation under section 4(b)(2) of
the Act, we are excluding approximately 14,457 ac (5,850 ha) of Tribal
land from the final critical habitat designation (14,455 ac (5,850 ha)
of Seminole Tribe of Florida lands and 1.25 ac (0.5 ha) of Miccosukee
Tribe of Indians of Florida lands; see Tribal Lands under Exclusions
Based on Other Relevant Impacts, above).
References Cited
A complete list of references cited in this rulemaking is available
on the internet at https://www.regulations.gov and upon request from
the Florida Ecological Services Field Office (see FOR FURTHER
INFORMATION CONTACT, above).
Authors
The primary authors of this final rule are the staff members of the
Fish and Wildlife Service's Species Assessment Team and the Florida
Ecological Services Field Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Plants,
Reporting and recordkeeping requirements, Transportation, Wildlife.
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 revising the entry for ``Bat, Florida bonneted''
under MAMMALS to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
----------------------------------------------------------------------------------------------------------------
Listing citations
Common name Scientific name Where listed Status and applicable
rules
----------------------------------------------------------------------------------------------------------------
Mammals
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Bat, Florida bonneted............ Eumops floridanus.. Wherever found..... E 78 FR 61004, 10/2/
2013; 50 CFR
17.95(a).\CH\
* * * * * * *
----------------------------------------------------------------------------------------------------------------
0
3. In Sec. 17.95, amend paragraph (a) by adding an entry for ``Florida
Bonneted Bat (Eumops floridanus)'' before the entry for ``Indiana Bat
(Myotis sodalis)'' to read as follows:
Sec. 17.95 Critical habitat--fish and wildlife.
(a) Mammals.
Florida Bonneted Bat (Eumops floridanus)
(1) Critical habitat units are depicted for Charlotte, Collier,
DeSoto, Glades, Hardee, Hendry, Highlands, Lee, Miami-Dade, Monroe,
Okeechobee, Osceola, and Polk Counties, Florida, on the maps in this
entry.
(2) Within these areas, the physical or biological features
essential to the conservation of Florida bonneted bat consist of the
following components:
(i) Habitats with sufficient darkness that provide for roosting and
rearing of offspring. Such habitat provides structural features for
rest, digestion of food, social interaction, mating, rearing of young,
protection from sunlight and adverse weather conditions, and cover to
reduce predation risks for adults and young, and is generally
characterized by:
(A) Live or dead trees and tree snags, especially longleaf pine,
slash pine, bald cypress, and royal palm, that are sufficiently large
(in diameter) and tall and have cavities of a sufficient size for
roosts; and
(B) Live or dead trees and tree snags with sufficient cavity
height, spacing from adjacent trees, and relative canopy height to
provide unobstructed space for Florida bonneted bats to emerge from
roost trees; this may include open or semi-open canopy and canopy gaps.
(ii) Habitats that provide adequate prey and space for foraging,
which may vary widely across the Florida bonneted bat's range, in
accordance with ecological conditions, seasons, and disturbance regimes
that influence vegetation structure and prey species' distributions.
Foraging habitat may be separate and relatively far from roosting
habitat. Essential foraging habitat consists of sufficiently dark open
areas in or near areas of high insect production or congregation,
commonly including, but not limited to:
(A) Freshwater edges, and freshwater herbaceous wetlands (permanent
or seasonal);
(B) Prairies;
(C) Wetland and upland shrub; and/or
(D) Wetland and upland forests.
(iii) A dynamic disturbance regime (e.g., fire, hurricanes, forest
management) that maintains and regenerates forested habitat, including
plant communities, open habitat structure, and temporary gaps, which is
conducive to promoting a continual supply of roosting sites, prey
items, and suitable foraging conditions.
(iv) A sufficient quantity and diversity of habitats to enable the
species to be resilient to short-term impacts associated with
disturbance over time (e.g., drought, forest disease). The ecological
communities the Florida bonneted bat inhabits differ in hydrology, fire
frequency/intensity, climate, prey species, roosting sites, and
threats, and include, but are not limited to:
(A) Pine rocklands;
(B) Cypress communities (cypress swamps, strand swamps, domes,
sloughs, ponds);
(C) Hydric pine flatwoods (wet flatwoods);
(D) Mesic pine flatwoods; and
(E) High pine.
(v) Habitats that provide structural connectivity where needed to
allow for dispersal, gene flow, and natural and adaptive movements,
including those that may be necessitated by climate change. These
connections may include linear corridors such as vegetated, riverine,
or open-water habitat with opportunities for roosting and/or foraging,
or patches (i.e., stepping stones) such as tree islands or other
isolated natural areas within a matrix of otherwise low-quality
habitat.
[[Page 16669]]
(vi) A subtropical climate that provides tolerable conditions for
the species such that normal behavior, successful reproduction, and
rearing of offspring are possible.
(3) Critical habitat does not include human-made 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
April 8, 2024.
(4) Data layers defining map units were created using ESRI ArcGIS
mapping software along with various spatial data layers. ArcGIS was
also used to calculate the size of habitat areas. The projection used
in mapping and calculating distances and locations within the units was
World Geodetic System 1984, Universal Transverse Mercator Zone 17
North. The maps in this entry, as modified by any accompanying
regulatory text, establish the boundaries of the critical habitat
designation. The coordinates or plot points or both on which each map
is based are available to the public at https://www.regulations.gov at
Docket No. FWS-R4-ES-2019-0106, the Florida bonneted bat species web
page at https://www.fws.gov/species/florida-bonneted-bat-eumops-floridanus, and at the field office responsible for this designation.
You may obtain field office location information by contacting one of
the Service regional offices, the addresses of which are listed at 50
CFR 2.2.
(5) Index map follows:
BILLING CODE 4333-15-P
Figure 1 to Florida Bonneted Bat (Eumops floridanus) Paragraph (5)
[[Page 16670]]
[GRAPHIC] [TIFF OMITTED] TR07MR24.000
(6) Unit 1: Kissimmee Unit; Polk, Osceola, Highlands, and
Okeechobee Counties, Florida.
(i) Unit 1 encompasses 175,735 acres (ac) (71,118 hectares (ha)) of
lands in Polk, Osceola, Highlands, and Okeechobee Counties, Florida.
This unit consists of two subunits generally located along the eastern
bank of Lake Kissimmee northeast to SR-192, north of SR-60; and along
portions of the Kissimmee River, south of SR-60.
(ii) Map of Unit 1 follows:
Figure 2 to Florida Bonneted Bat (Eumops floridanus) paragraph (6)(ii)
[[Page 16671]]
[GRAPHIC] [TIFF OMITTED] TR07MR24.001
(7) Unit 2: Peace River Unit; Hardee, DeSoto, and Charlotte
Counties, Florida.
(i) Unit 2 encompasses 28,046 ac (11,350 ha) of lands in Hardee,
DeSoto, and Charlotte Counties, Florida. This unit consists of four
subunits located along portions of the Peace River and its tributaries
(e.g., Shell Creek, Charlie Creek), south of CR-64 with the majority
west of U.S.-17.
(ii) Map of Unit 2 follows:
Figure 3 to Florida Bonneted Bat (Eumops floridanus) paragraph (7)(ii)
[[Page 16672]]
[GRAPHIC] [TIFF OMITTED] TR07MR24.002
(8) Unit 3: Babcock Unit; Charlotte, Lee, and Glades Counties,
Florida.
(i) Unit 3 encompasses 134,677 ac (54,502 ha) of lands in
Charlotte, Lee, and Glades Counties, Florida. This unit consists of two
subunits, with the majority of Unit 3 located in Charlotte County, east
of I-75; other portions are in northern Lee and western Glades
Counties.
(ii) Map of Unit 3 follows:
Figure 4 to Florida Bonneted Bat (Eumops floridanus) paragraph (8)(ii)
[[Page 16673]]
[GRAPHIC] [TIFF OMITTED] TR07MR24.003
(9) Unit 4: Fisheating Creek Unit; Glades and Highlands Counties,
Florida.
(i) Unit 4 encompasses 12,995 ac (5,259 ha) of lands in Glades and
Highlands Counties, Florida. The majority of Unit 4 is located in
Glades County, west of U.S.-27; the remainder of the unit extends north
into southern Highlands County.
(ii) Map of Unit 4 follows:
Figure 5 to Florida Bonneted Bat (Eumops floridanus) paragraph (9)(ii)
[[Page 16674]]
[GRAPHIC] [TIFF OMITTED] TR07MR24.004
(10) Unit 5: Corkscrew Unit; Lee and Collier Counties, Florida.
(i) Unit 5 encompasses 48,865 ac (19,775 ha) of lands in Lee and
Collier Counties, Florida. This unit straddles the Lee/Collier county
line, east of I-75.
(ii) Map of Unit 5 follows:
Figure 6 to Florida Bonneted Bat (Eumops floridanus) paragraph (10)(ii)
[[Page 16675]]
[GRAPHIC] [TIFF OMITTED] TR07MR24.005
(11) Unit 6: Big Cypress Unit; Collier, Hendry, and Monroe
Counties, Florida.
(i) Unit 6 encompasses 714,085 ac (288,980 ha) of lands in Collier,
Hendry, and Monroe Counties, Florida. The majority of Unit 6 is located
in Collier County, south of I-75; the remainder of the unit occurs in
southern Hendry County and mainland portions of Monroe County.
(ii) Map of Unit 6 follows:
Figure 7 to Florida Bonneted Bat (Eumops floridanus) paragraph (11)(ii)
[[Page 16676]]
[GRAPHIC] [TIFF OMITTED] TR07MR24.006
(12) Unit 7: Everglades Tree Islands Unit; Miami-Dade County,
Florida.
(i) Unit 7 encompasses 16,604 ac (6,719 ha) of lands in Miami-Dade
County, Florida, south of Tamiami Trail and west of Krome Avenue.
(ii) Map of Unit 7 follows:
Figure 8 to Florida Bonneted Bat (Eumops floridanus) paragraph (12)(ii)
[[Page 16677]]
[GRAPHIC] [TIFF OMITTED] TR07MR24.007
(13) Unit 8: Long Pine Key Unit; Miami-Dade County, Florida.
(i) Unit 8 encompasses 25,337 ac (10,253 ha) of lands in Miami-Dade
County, Florida, along Main Park Road (SR-9336) between Mahogany
Hammock and SW 237th Avenue.
(ii) Map of Unit 8 follows:
[[Page 16678]]
[GRAPHIC] [TIFF OMITTED] TR07MR24.008
Figure 9 to Florida Bonneted Bat (Eumops floridanus) paragraph (13)(ii)
(14) Unit 9: Miami Rocklands Unit; Miami-Dade County, Florida.
(i) Unit 9 encompasses 4,281 ac (1,732 ha) of lands in Miami-Dade
County, Florida. This unit consists of 36 subunits located between
Tamiami Trail to the north and SR-9336 to the south, and is surrounded
by a dense urban matrix typical of the Miami metropolitan area.
(ii) Maps of Unit 9 follow:
[[Page 16679]]
[GRAPHIC] [TIFF OMITTED] TR07MR24.009
Figure 10 to Florida Bonneted Bat (Eumops floridanus) paragraph
(14)(ii)
[[Page 16680]]
[GRAPHIC] [TIFF OMITTED] TR07MR24.010
Figure 11 to Florida Bonneted Bat (Eumops floridanus) paragraph
(14)(ii)
[[Page 16681]]
[GRAPHIC] [TIFF OMITTED] TR07MR24.011
Figure 12 to Florida Bonneted Bat (Eumops floridanus) paragraph
(14)(ii)
* * * * *
Stephen Guertin,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2024-04053 Filed 3-6-24; 8:45 am]
BILLING CODE 4333-15-C