[Federal Register Volume 76, Number 124 (Tuesday, June 28, 2011)]
[Rules and Regulations]
[Pages 37663-37677]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-16016]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
Docket No. FWS-R3-ES-2010-0042; MO-92210-0-0009-B4]
RIN 1018-AW90
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for Tumbling Creek Cavesnail
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate
critical habitat for the Tumbling Creek cavesnail (Antrobia culveri)
under the Endangered Species Act of 1973, as amended (Act). In total,
approximately 25 acres (10.25 hectares) located in Taney County,
Missouri, fall within the boundaries of the critical habitat
designation.
DATES: This rule becomes effective on July 28, 2011.
ADDRESSES: This final rule, the associated final economic analysis,
comments and materials received, as well as supporting documentation
used in preparing this final rule are available on the Internet at
http://www.regulations.gov at Docket No. FWS-R3-ES-2010-0042. These
documents are also available for public inspection, by appointment,
during normal business hours, at the U.S. Fish and Wildlife Service,
Columbia Fish and Wildlife Office, 101 Park DeVille Dr., Suite A,,
Columbia, MO 65203; telephone: 573-234-2132; facsimile: 573-234-2181.
FOR FURTHER INFORMATION CONTACT: Charles M. Scott, Field Supervisor,
Columbia Fish and Wildlife Office, (see ADDRESSES). If you use a
telecommunications device for the deaf (TDD), call the Federal
Information Relay Service (FIRS) at 800-877-8339.
[[Page 37664]]
SUPPLEMENTARY INFORMATION:
Background
It is our intent to discuss only those topics directly relevant to
the development and designation of critical habitat for the Tumbling
Creek cavesnail in this final rule. For more information on the biology
and ecology of the Tumbling Creek cavesnail, refer to the final listing
rule published in the Federal Register on August 14, 2002 (67 FR
52879), and the Tumbling Creek Cavesnail Recovery Plan, which is
available from the Columbia Missouri Ecological Services Field Office
(see ADDRESSES) and on the Internet at http://www.regulations.gov.
The Tumbling Creek cavesnail is a critically imperiled aquatic
snail, endemic to a single cave stream and associated springs in Taney
County, southwestern Missouri. The species is known only from Tumbling
Creek and a few of its small tributaries and associated underground
springs within Tumbling Creek Cave, and areas immediately downstream of
the cave between the cave's natural exit and the confluence of Tumbling
Creek with Big Creek at Schoolhouse Spring. Suitable habitat includes
the underside of rocks, small stones, and cobble, and occasionally the
upper surface of solid rock bottom within sections of Tumbling Creek
that have moderate current (U.S. Fish and Wildlife Service 2003, p.
10). The Tumbling Creek cavesnail is dependent on good water quality
and reduced sediment loads in Tumbling Creek (Aley and Ashley 2003, p.
20).
The primary threats are related to the degradation of water quality
in Tumbling Creek and include increased siltation from overgrazing,
tree removal, and other activities. Nonpoint source pollution within
the recharge area of Tumbling Creek cave is also a threat to the
species (Aley and Ashley 2003, p. 19; U.S. Fish and Wildlife Service
2003, pp. 14-18). The deposition of silt into Tumbling Creek from
aboveground activities within the recharge area of Tumbling Creek Cave
has likely contributed to the decline of the species by eliminating the
species' habitat, covering egg masses, or adversely impacting the snail
in other ways (Tom and Cathy Aley, 2001, pers. comm.; U.S. Fish and
Wildlife Service 2001, p. 66806; Aley and Ashley 2003, p. 19; U.S. Fish
and Wildlife Service 2003, pp. 14-18).
Previous Federal Actions
The Tumbling Creek cavesnail was emergency listed on December 27,
2001 (66 FR 66803) and subsequently listed as endangered on August 14,
2002 (67 FR 52879). At the time of listing, we determined that a delay
in designating critical habitat would enable us to concentrate our
limited resources on other actions that must be addressed and allow us
to invoke immediate protections needed for the conservation of the
species. We concluded that, if prudent and determinable, we would
prepare a critical habitat proposal in the future at such time as our
available resources and other listing priorities under the Act would
allow. We approved a final recovery plan for the Tumbling Creek
cavesnail on September 15, 2003, and announced its availability to the
public through a notice published in the Federal Register on September
22, 2003 (68 FR 55060).
On August 11, 2008, the Institute for Wildlife Protection and
Crystal Grace Rutherford filed a lawsuit against the Secretary of the
Interior for our failure to timely designate critical habitat for the
Tumbling Creek cavesnail (Institute for Wildlife Protection et al. v.
Kempthorne (07-CV-01202-CMP)). In a court-approved settlement
agreement, we agreed to submit to the Federal Register a new prudency
determination, and if the designation was found to be prudent, a
proposed designation of critical habitat, by June 30, 2010, and a final
designation by June 30, 2011. We published the proposed critical
habitat designation for the Tumbling Creek cavesnail on June 23, 2010
(75 FR 35751). Publication of the proposed rule opened a 60-day public
comment period that closed on August 23, 2010. We reopened the public
comment period for an additional 30 days (ending February 11, 2011), in
order to announce the availability of and receive comments on a draft
economic analysis (DEA) (76 FR 2076).
Summary of Comments and Recommendations
We requested written comments from the public on the proposed
designation of critical habitat for the Tumbling Creek cavesnail during
two comment periods. The first comment period associated with the
publication of the proposed rule (75 FR 35751) opened on June 23, 2010,
and closed on August 23, 2010. We also requested comments on the
proposed critical habitat designation and associated draft economic
analysis during a comment period that opened January 12, 2011, and
closed on February 11, 2011 (76 FR 2076). We contacted appropriate
Federal, State, and local agencies; scientific organizations; and other
interested parties and invited them to comment on the proposed rule and
the associated DEA during these comment periods.
During the first comment period, we received four comment letters
directly addressing the proposed critical habitat designation. During
the second comment period, we received one comment letter addressing
the proposed critical habitat designation and the DEA. We did not
receive any requests for a public hearing, so no public hearing was
held. All substantive information provided during comment periods has
either been incorporated directly into this final determination or
addressed below. Comments received, including comments from peer
reviewers (see below) were grouped into three general issues
specifically relating to the proposed critical habitat designation for
the Tumbling Creek cavesnail and are addressed in the following summary
and incorporated into the final rule as appropriate.
Peer Review
In accordance with our peer review policy published in the Federal
Register on July 1, 1994 (59 FR 34270), we solicited expert opinions
from three knowledgeable individuals with scientific expertise that
included familiarity with the species, the geographic region in which
the species occurs, the hydrology and geology associated with karst
systems, and conservation biology principles. We received responses
from all three of the peer reviewers.
We reviewed all comments received from the peer reviewers for
substantive issues and new information regarding critical habitat for
the Tumbling Creek cavesnail. All peer reviewers strongly supported the
proposed rule and believed that our analysis was based on solid
science. Peer reviewers provided additional information and editorial
suggestions to improve the final critical habitat rule. Peer reviewer
comments are addressed in the following summary and incorporated into
the final rule as appropriate.
Peer Reviewer Comments
Comment 1: All three peer reviewers noted that there was a
typographical error relative to dissolved oxygen concentrations on page
35755 (first column, second paragraph) of the proposed rule (75 FR
35751; June 23, 2010). They identified that we mistakenly stated that
``dissolved oxygen levels should not exceed 4.5 milligrams per liter.''
The corrected statement should be that dissolved oxygen levels should
always equal or exceed 4.5 milligrams per liter.
[[Page 37665]]
Our Response: We agree that we had inadvertently reversed the
required limit and have corrected it in this final rule.
Comment 2: Critical habitat should include the entire 23.57 square
kilometers (9.1 square miles) within the recharge area of Tumbling
Creek cave, not just the cave stream.
Our Response: While important to the species, the defined recharge
area for Tumbling Creek cave does not meet the Act's definition for
critical habitat. For inclusion in a critical habitat designation, the
habitat within the geographical area occupied by the species at the
time it was listed must contain the physical and biological features
essential to the conservation of the species, and may be included only
if those features may require special management considerations or
protection. Critical habitat designations identify, to the extent known
using the best scientific and commercial data available, habitat areas
that provide essential life-cycle needs of the species (areas on which
are found the physical and biological features laid out in the
appropriate quantity and spatial arrangement for the conservation of
the species). Because the Tumbling Creek cavesnail is an obligate
stream snail, nonaquatic habitats within the recharge area of Tumbling
Creek would not meet the Act's definition of critical habitat in that
they do not contain the physical and biological features essential to
the conservation of the species as described in this rule. Therefore,
those areas are not included in the critical habitat designation.
Nonetheless, the Service acknowledges that the proper management and
maintenance of these areas are important to the long-term recovery of
the Tumbling Creek cavesnail, and applicable conservation measures are
outlined in the final Recovery Plan for the species.
Comment 3: One peer reviewer stated that there was no evidence that
the Tumbling Creek cavesnail currently occupies underground areas
between the natural exit of Tumbling Creek cave and the confluence of
Tumbling Creek with Bear Cave Hollow upstream of Big Creek.
Our Response: These areas have not been surveyed due to their
inaccessibility to humans. Snails could occur in phreatic (cracks and
crevices) in the underground karst that provide sufficient aquatic
habitat. Therefore, because we believe these areas could reasonably be
occupied by the cavesnail, and they contain the physical and biological
features essential to the conservation of the species, it is
appropriate to include these areas in the critical habitat designation.
Comment 4: Two peer reviewers thought that the discussion on the
importance of energy input from gray bat (Myotis grisescens) guano
should be expanded to highlight the potential catastrophic impact that
White-nose Syndrome (WNS) and the causative fungus, Geomyces
destructans could have on the Tumbling Creek cavesnail if WNS decimates
gray bat populations in Tumbling Creek cave.
Our Response: The Service agrees that such an expanded discussion
is warranted and we have incorporated additional information on the
potential impact of WNS in this final rule.
Public Comments
Comment 5: One commenter noted that the surface stream upstream of
the cave on the map (75 FR 35763; June 23, 2010) was incorrectly
labeled and is identified as Bear Cave Hollow. This commenter stated
that Tumbling Creek merges with Bear Cave Hollow upstream of Big Creek
and that the mistake was due to an error on the U.S. Geological Survey
Protem 7.5 minute topographic map that incorrectly lists Tumbling Creek
as an alternate name for Bear Cave Hollow.
Our Response: We have made this correction on the map (Figure 1)
and have incorporated the change in this final rule. Additionally, we
have incorporated changes to note that the area designated as critical
habitat is from the emergence of Tumbling Creek within Tumbling Creek
cave to its confluence with Bear Cave Hollow upstream of Big Creek.
These changes, however, will not affect the area outlined in the
critical habitat designation or its total acreage.
Comment 6: While not presenting a position on the Service's
proposed critical habitat designation, the Little Rock District of the
Army Corps of Engineers (COE) commented that they do not believe that
the designation of critical habitat for the Tumbling Creek cavesnail
would necessitate further consultation under Section 7(a)(2) of the Act
related to the operation of Bull Shoals Reservoir.
Our Response: During discussions with the Corps on February 8,
2011, the Service reiterated its intention to reinitiate formal
consultation on the project for the cavesnail because of new
information regarding the status of the species, its presumed occupied
range, the potential threat of white nose syndrome (as it may affect
the energy input from the guano of bats that roost in Tumbling Creek
Cave), and the designation of critical habitat. That consultation would
also assess whether any actions associated with the operations of Bull
Shoals Reservoir would likely jeopardize the continued existence of the
cavesnail or adversely modify designated critical habitat.
Comment 7: One commenter also noted that there was a typographical
error relative to dissolved oxygen concentrations on page 35755 (first
column, second paragraph) of the proposed rule (75 FR 35751; June 23,
2010). They identified that we mistakenly stated that ``dissolved
oxygen levels should not exceed 4.5 milligrams per liter.'' The
corrected statement should be that dissolved oxygen levels should
always equal or exceed 4.5 milligrams per liter.
Our Response: Refer to our response to Comment 1.
Comment 8: One commenter also thought that the discussion on the
importance of energy input from gray bat (Myotis grisescens) guano
should be expanded to highlight the potential catastrophic impact that
White-nose Syndrome (WNS) and the causative fungus, Geomyces
destructans could have on the Tumbling Creek cavesnail if WNS decimates
gray bat populations in Tumbling Creek cave.
Our Response: Refer to our response to Comment 4.
Summary of Changes From Proposed Rule
We thoroughly evaluated all comments received on the proposed
designation of critical habitat. As a result of the comments we
received on the proposed rule, as well as errors we found, we have made
the following changes to our proposed designation.
Changed a typographical error related to a misstatement
regarding the correct dissolved oxygen levels identified as one of the
physical and biological features essential to the conservation of the
Tumbling Creek cavesnail.
Relabeled the map to depict the difference between
Tumbling Creek and Bear Cave Hollow that was incorrectly labeled on the
U.S. Geological Survey Protem 7.5 minute topographic map.
Changed the relevant portions of the text in this rule to
note that the area designated as critical habitat is from the emergence
of Tumbling Creek within Tumbling Creek cave to its confluence with
Bear Cave Hollow upstream of Big Creek. These changes, however, do not
affect the area outlined in the critical habitat designation, or its
total acreage.
In preparing the final rule, the Service noted a
typographical error related to the area of the above-ground recharge
listed for Tumbling Creek cave.
[[Page 37666]]
The area should be listed as 23.57 square kilometers (9 square miles),
not 14.5 kilometers (9 miles) as stated in the proposed rule. The
appropriate change has been made in this final rule and does not change
the total acreage included in the designation.
In preparing the final rule and relabeling the map outlining
critical habitat for the Tumbling Creek cavesnail, the Service noticed
that the designation does not include Schoolhouse Spring as stated in
the proposed rule. The only spring within the designation is Owens
Spring. The landowner confirmed that the area depicted in our map only
includes Owens Spring and not Schoolhouse Spring. The removal of
references to Schoolhouse Spring in the description of the area
designated as critical habitat does not change the map or the total
acreage included in the designation.
Critical Habitat
Background
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
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 under 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(a)(2) of the
Act through the prohibition against Federal agencies carrying out,
funding, or authorizing the destruction or adverse modification of
critical habitat. Section 7(a)(2) requires consultation on Federal
actions that may affect critical habitat. The designation of critical
habitat does not affect land ownership or establish a refuge,
wilderness, reserve, preserve, or other conservation area. Such
designation does not allow the government or public to access private
lands. Such designation does not require implementation of restoration,
recovery, or enhancement measures by non-Federal landowners. Where a
landowner seeks or requests Federal agency funding or authorization for
an action that may affect a listed species or critical habitat, the
consultation requirements of section 7(a)(2) would apply, but even in
the event of a destruction or adverse modification finding, the
obligation of the Federal action agency and the landowner is not to
restore or recover the species, but to implement reasonable and prudent
alternatives to avoid destruction or adverse modification of critical
habitat.
For inclusion in a critical habitat designation, the habitat within
the geographical area occupied by the species at the time it was listed
must contain the physical or biological features that are essential to
the conservation of the species and which may require special
management considerations or protection. Critical habitat designations
identify, to the extent known using the best scientific and commercial
data available, those physical and biological features that are
essential to the conservation of the species (such as space, food,
cover, and protected habitat), focusing on the principal biological or
physical constituent elements (primary constituent elements) within an
area that are essential to the conservation of the species (such as
roost sites, nesting grounds, seasonal wetlands, water quality, tide,
soil type). Primary constituent elements are the elements of physical
and biological features that, when laid out in the appropriate quantity
and spatial arrangement to provide for a species' life-history
processes, are essential to the conservation of the species.
Under the Act, 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. We designate critical habitat in areas outside the
geographical area occupied by a species only when a designation limited
to its range would be inadequate to ensure the conservation of the
species. When the best available scientific data do not demonstrate
that the conservation needs of the species require such additional
areas, we will not designate critical habitat in areas outside the
geographical area occupied by the species. An area currently occupied
by the species but that was not occupied at the time of listing may,
however, be essential to the conservation of the species and may be
included in the critical habitat designation.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific and commercial 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 we should designate as critical
habitat, our primary source of information is generally the information
developed during the listing process for the species. Additional
information sources may include 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, or other unpublished materials and expert opinion or
personal knowledge.
Habitat is dynamic, and species may move from one area to another
over time. In particular, we recognize that climate change may cause
changes in the arrangement of occupied habitat stream reaches. Climate
change may lead to increased frequency and duration of droughts (Rind
et al. 1990, p. 9983; Seager et al. 2007, pp. 1181-1184; Rahel and
Olden 2008, p. 526). Climate warming may increase the virulence of
nonnative parasites and pathogens to native species (Rahel and Olden
2008, p. 525), decrease groundwater levels (Schindler 2001, p. 22), or
significantly reduce annual stream flows (Moore et al. 1997, p. 925).
Increased drought conditions and prolonged low flows associated with
climate change may favor the establishment and spread of nonnative
[[Page 37667]]
species (Rahel and Olden 2008, pp. 526, 529-530). In the Missouri
Ozarks, it is projected that stream basin discharges may be
significantly impacted by synergistic effects of changes in land cover
and climate change (Hu et al. 2005, p. 9).
The information currently available on the effects of global
climate change and increasing temperatures does not make sufficiently
precise estimates of the location and magnitude of the effects. Nor are
we currently aware of any climate change information specific to the
habitat of the Tumbling Creek cavesnail that would indicate what areas
may become important to the species in the future. Nonetheless, because
the Tumbling Creek cavesnail is an aquatic snail that is totally
dependent upon an adequate water supply, adverse effects associated
with climate change that could significantly alter the quantity and
quality of Tumbling Creek could impact the species in the future. Other
than Tumbling Creek, we are currently unaware of any other cave stream
inhabited by the Tumbling Creek cavesnail. Therefore, as explained in
the proposed rule (75 FR 35751), we are unable to determine which
additional areas, if any, may be appropriate to include in the final
critical habitat for this species to address the effects of climate
change.
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, especially if
future surveys are successful in documenting the species' presence in
another cave stream. For these reasons, a critical habitat designation
does not signal that habitat outside the designated critical habitat
area is unimportant or may not be required for recovery of the species.
Areas that are important to the conservation of the species, but
are outside the critical habitat designation, will continue to be
subject to conservation actions we implement under section 7(a)(1) of
the Act. They are also subject to the regulatory protections afforded
by the section 7(a)(2) jeopardy standard, as determined based on the
best available scientific information at the time of the agency action.
Federally funded or permitted projects affecting listed species outside
their designated critical habitat areas may still result in jeopardy
findings in some cases. Similarly, critical habitat designations made
on the basis of the best available information at the time of
designation will not control the direction and substance of future
recovery plans, habitat conservation plans (HCPs), section 7
consultations, or other species conservation planning efforts if new
information available at the time of these planning efforts calls for a
different outcome.
Physical and Biological Features
In accordance with sections 3(5)(A)(i) and 4(b)(1)(A) of the Act
and the regulations at 50 CFR 424.12, in determining which areas within
the geographical area occupied at the time of listing to designate as
critical habitat, we consider the physical and biological features that
are essential to the conservation of the species, which may require
special management considerations or protection. These include, but are
not limited to:
(1) Space for individual and population growth and for normal
behavior;
(2) Food, water, air, light, minerals, or other nutritional or
physiological requirements;
(3) Cover or shelter;
(4) Sites for breeding, reproduction, or rearing (or development)
of offspring; and
(5) Habitats that are protected from disturbance or are
representative of the historical, geographical, and ecological
distributions of a species.
We derive the specific essential physical and biological features
for the Tumbling Creek cavesnail from studies on this species' habitat,
ecology, and life history as described in the Critical Habitat section
of the proposed rule to designate critical habitat published in the
Federal Register on June 23, 2010 (75 FR 35751), and in the information
presented below. Additional information can be found in the Background
and Status and Distribution sections of the final listing rule
published in the Federal Register on August 14, 2002 (67 FR 52879), and
the final recovery plan for the species available on the Internet at
http://ecos.fws.gov/docs/recovery_plans/2003/030922a.pdf.
Unfortunately, little is known of the specific habitat requirements for
this species other than that the species requires adequate water
quality, water quantity, water flow, a stable stream channel, minimal
sedimentation, and energy input from the guano of bats, particularly
gray bats (Myotis grisescens) that roost in Tumbling Creek Cave. To
identify the physical and biological features essential to the Tumbling
Creek cavesnail, we have relied on current conditions at locations
where the species survives, and the limited information available on
this species and its close relatives.
Space for Individual and Population Growth and for Normal Behavior
The specific space requirements for the Tumbling Creek cavesnail
are unknown, but given that 15,118 snails were estimated in a 1,016-
square-meter (3,333-square-foot) area of Tumbling Creek in 1973
(Greenlee 1974, p. 10), space is not likely a limiting factor for the
species. The loss of interstitial habitats for the species, however,
likely contributed to the species decline (U.S. Fish and Wildlife
Service 2003, p. 14).
Food, Water, Air, Light, Minerals, or Other Nutritional or
Physiological Requirements
It is believed that the species feeds on biofilm, the organic
coating and bacterial layer associated with the underside of rocks or a
bare rock stream bottom (Aley and Ashley 2003, p. 19). This biofilm is
directly connected to energy input from the guano of a large colony of
roosting bats in Tumbling Creek Cave, particularly the Federally listed
gray bat (Myotis grisescens) (Aley and Ashley 2003, p.18; U.S. Fish and
Wildlife Service 2003, p. 11). The cavesnail is often found on rocks
coated with manganese oxide (Aley and Ashley 2003, p. 18), but it is
unlikely, however, that manganese minerals play any role in the growth
and survival of the cavesnail (Ashley 2010, pers. comm.).
Cover or Shelter
The Tumbling Creek cavesnail has been found on both the upper and
lower surfaces of rocks and gravel (Greenlee 1974, p. 10; Aley and
Ashley 2003, p. 18; U.S. Fish and Wildlife Service 2003, p. 12). Flow
rates in Tumbling Creek can reach 150 cubic feet per second (cfs)
during flash flood events (Aley 2010, pers. comm.), and such events may
dislodge cavesnails from the upper surface of substrates. Consequently,
it is likely that the underside of larger rocks provides some cover for
cavesnails. Rocks and gravel are used by cavesnails for attachment
(Greenlee 1974, p. 10; U.S. Fish and Wildlife Service, p. 12).
Additionally, it is likely that a stable stream bottom and cave stream
banks and riffle, run, and pool habitats are important components of
the species' habitat.
In summary, the Tumbling Creek cavesnail depends on stable stream
bottoms and banks (stable horizontal dimension and vertical profile)
that maintain bottom features (riffles, runs, and pools) and transition
zones between bottom features. Furthermore, the species requires bottom
substrates consisting of fine gravel with coarse gravel or cobble, or
bedrock with sand
[[Page 37668]]
and gravel, with low amounts of fine sand and sediments within the
interstitial spaces of the substrates.
Sites for Breeding, Reproduction, or Rearing
Like other members of the snail family Hydrobiidae, the Tumbling
Creek cavesnail has separate male and female individuals (Aley and
Ashley 2003, p. 19), but there is no information on the mating behavior
of the species or what role the unknown sex ratio of the species may
have on successful reproduction. Eggs are likely deposited in
gelatinous egg masses, but to date, the occurrence of such egg masses
has yet to be documented (Aley and Ashley 2003, p. 19). Although little
is known about the reproductive behavior and development of offspring
of the Tumbling Creek cavesnail, it is likely that rock and gravel
substrates that are free from silt are important elements necessary for
successful propagation, especially for attachment of gelatinous egg
masses. Aley and Ashley (2003, p. 19) postulated that silt deposited in
Tumbling Creek could smother egg masses, and Ashley (2000, p. 8)
suggested that silt could suffocate early developmental stages of the
cavesnail. The lifespan of the Tumbling Creek cavesnail is unknown,
but, if similar to other surface-dwelling hydrobid snails that have
been studied, it is probably between 1 and 5 years (Aley and Ashley
2003, p. 19).
The cavesnail is dependent on good water quality (Aley and Ashley
2003, pp. 19-20; U.S. Fish and Wildlife Service 2003, pp. 13-22). Aley
(2001, pers. comm.; U.S. Fish and Wildlife Service 2003, p. 22) noted
that oxygen depletion could occur in Tumbling Creek during low flows;
therefore, permanent flow of the stream is apparently important to the
survival of the cavesnail. Aley (2010, pers. comm.) calculated that an
average daily discharge of 0.07-150 cubic feet per second (cfs) was
necessary to maintain good water quality for the cavesnail. Aley (2010,
pers. comm.) also postulated that, to ensure good water quality for the
Tumbling Creek cavesnail, water temperature of the cave stream should
be 55-62 [deg]F (12.78-16.67 [deg]C), dissolved oxygen levels should
equal or exceed 4.5 milligrams per liter, and turbidity of an average
monthly reading should not exceed 200 Neophelometric Units (NTU; units
used to measure sediment discharge) and should not persist for a period
greater than 4 hours.
In summary, the Tumbling Creek cavesnail depends on an instream
flow regime with an average daily discharge between 0.07 and 150 cubic
feet per second (cfs), inclusive of both surface runoff and groundwater
sources (springs and seepages), and water quality with temperature 55-
62 [deg]F (12.78-16.67 [deg]C), dissolved oxygen 4.5 milligrams or
greater per liter, and turbidity of an average monthly reading of no
more than 200 NTUs for a duration not to exceed 4 hours.
Primary Constituent Elements for the Tumbling Creek Cavesnail
Under the Act and its implementing regulations, we are required to
identify the physical and biological features essential to the
conservation of the Tumbling Creek cavesnail in areas occupied at the
time of listing and focus on the features' primary constituent
elements. We consider primary constituent elements to be the elements
of physical and biological features, that, when laid out in the
appropriate quantity and spatial arrangement to provide for a species'
life-history processes, are essential to the conservation of the
species.
Based on our current knowledge of the physical or biological
features and habitat characteristics to sustain the species' life-
history processes, we determine that the primary constituent elements
specific to the Tumbling Creek cavesnail are:
(1) Geomorphically stable stream bottoms and banks (stable
horizontal dimension and vertical profile) in order to maintain bottom
features (riffles, runs, and pools) and transition zones between bottom
features; to continue appropriate habitat to maintain essential
riffles, runs, and pools; and to promote connectivity between Tumbling
Creek and its tributaries and associated springs to maintain gene flow
throughout the population.
(2) Instream flow regime with an average daily discharge between
0.07 and 150 cubic feet per second (cfs), inclusive of both surface
runoff and groundwater sources (springs and seepages).
(3) Water quality with temperature 55-62 [deg]F (12.78-16.67
[deg]C), dissolved oxygen 4.5 milligrams or greater per liter, and
turbidity of an average monthly reading of no more than 200
Nephelometric Turbidity Units (NTU; units used to measure sediment
discharge) for a duration not to exceed 4 hours.
(4) Bottom substrates consisting of fine gravel with coarse gravel
or cobble, or bedrock with sand and gravel, with low amounts of fine
sand and sediments within the interstitial spaces of the substrates.
(5) Energy input from guano that originates mainly from gray bats
that roost in the cave; guano is essential in the development of
biofilm (the organic coating and bacterial layer that covers rocks in
the cave stream) that cavesnails use for food.
With this designation of critical habitat, we intend to identify
the physical and biological features essential to the conservation of
the species, through the identification of the appropriate quantity and
spatial arrangement of the primary constituent elements sufficient to
support the life-history processes of the species. The unit designated
as critical habitat is currently occupied by the Tumbling Creek
cavesnail and contains the primary constituent elements in the
appropriate quantity and spatial arrangement sufficient to support the
life-history needs of the species.
Special Management Considerations or Protections
When designating critical habitat, we assess whether the specific
areas within the geographical area occupied by the species at the time
of listing contain the physical and biological features that are
essential to the conservation of the species and that may require
special management considerations or protection.
The one unit we are designating as critical habitat will require
some level of management to address the current and future threats to
the physical and biological features essential to the conservation of
the species. Although no portion of the designated critical habitat
unit is presently under special management or protection provided by a
legally operative plan or agreement for the conservation of the
Tumbling Creek cavesnail, the cave owners Tom and Cathy Aley have been
actively involved in implementing numerous conservation measures that
continue to contribute to the recovery of the species. Various
activities in or adjacent to the critical habitat unit described in
this final rule may affect one or more of the primary constituent
elements. For example, features in the critical habitat designation may
require special management due to threats associated with management of
water levels on Bull Shoals Reservoir (such as increased sedimentation
or bank erosion from backwater flooding); by significant changes in the
existing flow regime of Tumbling Creek, its tributaries, or associated
springs; by significant alteration of water quality; by significant
alteration in the quantity of groundwater and alteration of spring
discharge sites; by alterations to septic
[[Page 37669]]
systems that could adversely affect the water quality of Tumbling
Creek; and by other watershed and floodplain disturbances that release
sediments or nutrients into the water.
Energy input in the form of bat guano is identified above as an
important primary constituent element for the Tumbling Creek cavesnail.
Most of the bat guano in Tumbling Creek cave originates from a large
population of gray bats that roost in the cave (Aley and Ashley 2003,
p. 18; U.S. Fish and Wildlife Service 2003, p. 11). White-nose Syndrome
(WNS) and the causative fungus, Geomyces destructans is estimated to be
responsible for as much as a 75 percent decline in some bat populations
in the eastern United States since WNS was first documented in 2006
(Blehert et al. 2009, p. 227; Frick et al. 2010, p. 679; Puechmaille et
al. 2010, p. 290). Geomyces destructans has been recently documented on
gray bats in Missouri (LeAnn White 2010, pers. comm.; Swezey and
Garrity 2011, p. 16). The likely continued spread of WNS to gray bats
in Missouri could be catastrophic for the species (U.S. Fish and
Wildlife Service 2009, pp. 12-13). The spread of WNS on gray bats in
Tumbling Creek cave could eliminate the species from the site and
impact all cave-dwelling species, including the cavesnail, due to the
loss of energy input from the lack of bat guano.
Other activities that may affect the primary constituent elements
in the designated critical habitat unit include those listed in the
``Effects of Critical Habitat Designation'' section below. The
designation of critical habitat does not imply that lands outside of
critical habitat do not play an important role in the conservation of
the Tumbling Creek cavesnail. Activities with a Federal nexus that may
affect areas outside of critical habitat, such as development; road
construction and maintenance; oil, gas, and utility easements; forest
and pasture management; maintenance of Bull Shoals Reservoir; and
effluent discharges, are still subject to review under section 7 of the
Act if they may affect the Tumbling Creek cavesnail, because Federal
agencies must consider both effects to the species and effects to
critical habitat independently. The Service should be consulted
regarding disturbances to areas both within the designated critical
habitat unit as well as areas within the recharge area of Tumbling
Creek cave, including springs and seeps that contribute to the instream
flow in the tributaries, especially during times when stream flows are
abnormally low (during droughts), because these activities may impact
the essential features of the designated critical habitat. The
prohibitions of section 9 of the Act against the take of listed species
also continue to apply both inside and outside of designated critical
habitat.
Criteria Used To Identify Critical Habitat
As required by section 4(b)(1)(A) of the Act, we used the best
scientific and commercial data available to designate critical habitat.
We reviewed available information pertaining to the habitat
requirements of this species. In accordance with the Act and its
implementing regulation at 50 CFR 424.12(e), we considered whether
designating additional areas--outside those currently occupied as well
as those occupied at the time of listing--are necessary to ensure the
conservation of the species. We are not designating any areas outside
the geographical area occupied by the species because occupied areas
are sufficient for the conservation of the species, adjacent caves
surveyed for the cavesnail failed to document the species (U.S. Fish
and Wildlife Service 2003, p. 4), and there is no known habitat within
a certain radius of Tumbling Creek cave which provides a combination of
aquatic substrate and a large source of energy input that is necessary
for the conservation of the species. We are designating critical
habitat in areas within the geographical area occupied by the species
at the time of listing in 2002.
In order to determine which sites were occupied at the time of
listing, we used information from surveys conducted by Greenlee (1974,
pp. 9-11) and Ashley (2010, pers. comm.), data summarized in the final
listing rule (67 FR 52879), the Tumbling Creek Cavesnail Recovery Plan
(U.S. Fish and Wildlife Service 2003, pp. 1-13), and personal
observations by cave owners Tom and Cathy Aley. Currently, occupied
habitat for the species is limited and isolated to Tumbling Creek, from
its emergence in Tumbling Creek Cave to its confluence with Bear Cave
Hollow and Owens Spring upstream of Big Creek.
Following the identification of the specific locations occupied by
the Tumbling Creek cavesnail, we determined the appropriate length of
occupied segments of Tumbling Creek by identifying the upstream and
downstream limits of these occupied sections necessary for the
conservation of the species. Because Tumbling Creek is intricately
linked with fractures in chert rock and associated springs and
underground portions that are inaccessible to humans, we determined
that currently occupied habitat includes the area from the emergence of
Tumbling Creek within Tumbling Creek Cave to its confluence with Bear
Cave Hollow and Owens Spring upstream of Big Creek. This determination
was made to ensure incorporation of all potential sites of occurrence.
These portions of Tumbling Creek and Owens Spring were then digitized
using 7.5' topographic maps and ArcGIS to produce the critical habitat
map.
We are designating as critical habitat all portions of Tumbling
Creek and the underground portions of Owens Spring as occupied habitat.
We have defined ``occupied habitat'' as those stream reaches documented
at the time of listing and all portions of Tumbling Creek between its
emergence in Tumbling Creek Cave and its confluence with Bear Cave
Hollow and Owens Spring upstream of Big Creek. Although there are
underground portions of Tumbling Creek that are inaccessible to humans,
the entire stream length is believed to be occupied by the Tumbling
Creek cavesnail; thus, the entire stream is believed to comprise the
entire known range of the Tumbling Creek cavesnail. We are not
designating any areas outside of those mentioned above, because the
species is believed to be a site endemic, and surveys in other nearby
cave streams and springs have failed to find additional populations
(U.S. Fish and Wildlife Service 2003, p. 4).
The one unit contains all of the physical and biological features
in the appropriate quantity and spatial arrangement essential to the
conservation of this species and supports all life processes for the
Tumbling Creek cavesnail.
Although the above-ground recharge area of Tumbling Creek Cave
(estimated to be 9 square miles (23.57 square kilometers) (U.S. Fish
and Wildlife Service 2003, p. 14)) is important to maintain the
condition of cavesnail habitat, such areas do not themselves contain
the physical and biological features essential to the conservation of
the species, and are, therefore, not designated as critical habitat.
To the best of our knowledge, there are no unoccupied areas that
are essential to the conservation of the Tumbling Creek cavesnail. All
of the areas designated as critical habitat for the Tumbling Creek
cavesnail are currently occupied by the species and contain the
essential physical and biological features. All of the areas designated
as critical habitat are also within the known historical range of the
species. Therefore, we are not designating any areas outside the
[[Page 37670]]
geographical area occupied by the species at the time of listing. We
believe that the occupied areas are sufficient for the conservation of
the species.
Final Critical Habitat Designation
We are designating one unit, totaling approximately 25 ac (10.12
ha), as critical habitat for the Tumbling Creek cavesnail. The critical
habitat unit described below constitutes our best assessment of areas
that currently meet the definition of critical habitat for the Tumbling
Creek cavesnail.
We present a brief description for the unit and reasons why it
meets the definition of critical habitat below. The designated critical
habitat unit includes the stream channel of Tumbling Creek to the
confluence with Bear Cave Hollow and Owens Spring upstream of Big
Creek. For the one stream reach designated as critical habitat, the
upstream and downstream boundaries are described generally below; more
precise descriptions are provided in the Regulation Promulgation at the
end of this final rule.
Tumbling Creek, Taney County, Missouri
The unit includes the entire length of Tumbling Creek, from its
emergence in Tumbling Creek Cave (southeast of the intersection of
Routes 160 and 125) downstream to its confluence with Bear Cave Hollow
and Owens Spring upstream of Big Creek, encompassing 25 ac (10.12 ha).
This section of Tumbling Creek and the associated spring are under
private ownership by Tom and Cathy Aley of the Ozark Underground
Laboratory and contain all of the essential physical and biological
features necessary for the Tumbling Creek cavesnail.
Threats to the essential physical and biological features necessary
for the Tumbling Creek cavesnail that may require special management
and protection include:
Actions associated with the management of water levels of
Bull Shoals Reservoir (such as increased sedimentation or bank erosion
on the terminal portions of Tumbling Creek from backwater flooding);
Significant changes in the existing flow regime of
Tumbling Creek, its tributaries. or associated springs;
Significant alteration of water quality;
Significant alteration in the quantity of groundwater and
spring discharge sites;
Alterations to septic systems that could adversely affect
the quality of Tumbling Creek;
Other watershed and floodplain disturbances that release
sediments or nutrients into the water;
The accidental introduction of nonnative aquatic species
into the stream due to backwater flooding of Bull Shoals Reservoir into
Tumbling Creek; or
The potential effects of WNS on bats occupying the cave.
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that actions they fund, authorize, or carry out are
not likely to destroy or adversely modify critical habitat. Decisions
by the 5th and 9th Circuits Courts of Appeals have invalidated our
definition of ``destruction or adverse modification'' (50 CFR 402.02)
(see Gifford Pinchot Task Force v. U.S. Fish and Wildlife Service, 378
F.3d 1059 (9th Cir. 2004) and Sierra Club v. U.S. Fish and Wildlife
Service, 245 F.3d 434, 442 (5th Cir. 2001)), and we do not rely on this
regulatory definition when analyzing whether an action is likely to
destroy or adversely modify critical habitat. Under the statutory
provisions of the Act, we determine destruction or adverse modification
on the basis of whether, with implementation of the proposed Federal
action, the affected critical habitat would continue to serve its
intended conservation role for the species.
If a species is listed or critical habitat is designated, section
7(a)(2) of the Act requires Federal agencies to insure that activities
they authorize, fund, or carry out are not likely to jeopardize the
continued existence of such a species or to destroy or adversely modify
its critical habitat. If a Federal action may affect a listed species
or its critical habitat, the responsible Federal agency (action agency)
must enter into consultation with us. As a result of section 7
consultation, we document compliance with the requirements of section
7(a)(2) through our issuance of:
(1) A concurrence letter for Federal actions that may affect, but
are not likely to adversely affect, listed species or critical habitat;
or
(2) A biological opinion for Federal actions that may affect, or
are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is
likely to jeopardize the continued existence of a listed species and/or
destroy or adversely modify critical habitat, we provide reasonable and
prudent alternatives to the project, if any are identifiable, that
would avoid the likelihood of jeopardy and/or destruction or adverse
modification of critical habitat. We define ``reasonable and prudent
alternatives'' (at 50 CFR 402.02) as alternative actions identified
during consultation that:
(1) Can be implemented in a manner consistent with the intended
purpose of the action;
(2) Can be implemented consistent with the scope of the Federal
agency's legal authority and jurisdiction;
(3) Are economically and technologically feasible; and
(4) Would, in the Director's opinion, avoid the likelihood of
jeopardizing the continued existence of the listed species and/or avoid
the likelihood of destroying or adversely modifying critical habitat.
Reasonable and prudent alternatives can vary from slight project
modifications to extensive redesign or relocation of the project. Costs
associated with implementing a reasonable and prudent alternative are
similarly variable.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate
consultation on previously reviewed actions in instances where we have
listed a new species or subsequently designated critical habitat that
may be affected and the Federal agency has retained discretionary
involvement or control over the action (or the agency's discretionary
involvement or control is authorized by law). Consequently, Federal
agencies sometimes may need to request reinitiation of consultation
with us on actions for which formal consultation has been completed, if
those actions with discretionary involvement or control may affect
subsequently listed species or designated critical habitat.
Federal activities that may affect the Tumbling Cave snail or its
designated critical habitat require section 7 consultation under the
Act. Activities on State, Tribal, local, or private lands requiring 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 involving some
other Federal action (such as funding from the Federal Highway
Administration, Federal Aviation Administration, or the Federal
Emergency Management Agency) are subject to the section 7(a)(2)
consultation process. Federal actions not affecting listed species or
critical habitat, and actions on State, Tribal, local, or private lands
that are not
[[Page 37671]]
Federally funded or authorized, do not require section 7 consultations.
Application of the ``Adverse Modification'' Standard
The key factor related to the adverse modification determination is
whether, with implementation of the proposed Federal action, the
affected critical habitat would continue to serve its intended
conservation role for the species. Activities that may destroy or
adversely modify critical habitat are those that alter the physical and
biological features to an extent that appreciably reduces the
conservation value of critical habitat for the Tumbling Creek
cavesnail.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe, in any proposed or final regulation that designates critical
habitat, activities involving a Federal action that may destroy or
adversely modify such habitat, or that may be affected by such
designation.
Activities that may affect critical habitat, when carried out,
funded, or authorized by a Federal agency, should result in
consultation for the Tumbling Creek cavesnail. These activities
include, but are not limited to:
(1) Actions that would cause an increase in sedimentation to areas
of Tumbling Creek, its tributaries, and associated springs occupied by
the cavesnail. Such activities could include, but are not limited to,
alteration or maintenance of pool levels on Bull Shoals Reservoir that
causes backwater flooding of occupied habitat, or any discharge of fill
materials. Such activities occurring within the recharge area of
Tumbling Creek Cave may also impact the designated critical habitat.
These activities could eliminate or reduce habitats necessary for the
growth and reproduction of the species by causing excessive
sedimentation and burial of the species or their habitats or eliminate
interstitial spaces needed by cavesnails.
(2) Actions that would significantly alter the existing flow regime
of Tumbling Creek, its tributaries, and associated springs occupied by
the cavesnail. Such activities could include, but are not limited to,
alteration or maintenance of pool levels on Bull Shoals Reservoir that
significantly reduces the movement of water through occupied cavesnail
habitat. Such activities occurring within the recharge area of Tumbling
Creek Cave may also impact the designated critical habitat.
(3) Actions that would significantly alter water chemistry or water
quality (for example, changes to temperature or pH, introduced
contaminants, excess nutrients) in Tumbling Creek, its tributaries, and
associated springs. Such activities could include, but are not limited
to, the release of chemicals, biological pollutants, or heated
effluents that are then introduced into Tumbling Creek, its
tributaries, and associated spring occupied by the cavesnail through
backwater flooding. Such activities occurring within the recharge area
of Tumbling Creek Cave may also impact the designated critical habitat.
These activities could alter water conditions that are beyond the
tolerances of the species and result in direct or cumulative adverse
effects on the species and its life cycle. These activities could
eliminate or reduce habitats necessary for the growth and reproduction
of the species by causing eutrophication, leading to excessive
filamentous algal growth. Excessive filamentous algal growth can cause
extreme decreases in nighttime dissolved oxygen levels through
vegetation respiration, and cover the bottom substrates and the
interstitial spaces needed by cavesnails.
(4) Actions that could accidentally introduce nonnative species
into Tumbling Creek, its tributaries, and associated springs occupied
by the cavesnail via backwater flooding from Bull Shoals Reservoir.
Such activities occurring within the recharge area of Tumbling Creek
Cave may also impact the designated critical habitat. These activities
could introduce a potential predator or outcompeting aquatic
invertebrate (for example, another species of cavesnail or troglobitic
invertebrate) or aquatic parasite.
(5) Actions that could significantly alter the prey base of bats.
Energy input from bat guano is essential to the Tumbling Creek
cavesnail, such that adverse impacts to gray bat populations in
Tumbling Creek Cave could indirectly impact the cavesnail. Such
activities could include, but are not limited to, alteration or
maintenance of pool levels on Bull Shoals Reservoir that significantly
reduces the life cycles of the aquatic insects that are needed by gray
bats for food and the potential use of insecticides for mosquito
control.
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 resource management plan (INRMP) by
November 17, 2001. An INRMP integrates implementation of the military
mission of the installation with stewardship of the natural resources
found on the base. Each INRMP includes:
(1) An assessment of the ecological needs on the installation,
including the need to provide for the conservation of listed species;
(2) A statement of goals and priorities;
(3) A detailed description of management actions to be implemented
to provide for these ecological needs; and
(4) A monitoring and adaptive management plan.
Among other things, each INRMP must, to the extent appropriate and
applicable, provide for fish and wildlife management; fish and wildlife
habitat enhancement or modification; wetland protection, enhancement,
and restoration where necessary to support fish and wildlife; and
enforcement of applicable natural resource laws.
The National Defense Authorization Act for Fiscal Year 2004 (Pub.
L. 108-136) amended the Act to limit areas eligible for designation as
critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16
U.S.C. 1533(a)(3)(B)(i)) now provides: ``The Secretary shall not
designate as critical habitat any lands or other geographical areas
owned or controlled by the Department of Defense, or designated for its
use, that are subject to an integrated natural resources management
plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if
the Secretary determines in writing that such plan provides a benefit
to the species for which critical habitat is proposed for
designation.''
There are no Department of Defense lands within the critical
habitat designation for the Tumbling Creek cavesnail. Therefore, we are
not exempting any lands owned or managed by the Department of Defense
from this designation of critical habitat for the Tumbling Creek
cavesnail pursuant to section 4(a)(3)(B)(i) of the Act.
Exclusions
Application of Section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that the Secretary shall
designate or 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
impacts of specifying any particular area as critical habitat. The
Secretary may exclude an area from critical habitat if he determines
that the benefits of such exclusion outweigh the benefits of specifying
such area as part of the critical habitat, unless he determines, based
on the best scientific
[[Page 37672]]
and commercial data available, that the failure to designate such area
as critical habitat will result in the extinction of the species. In
making that determination, the statute on its face, as well as the
legislative history, are clear that the Secretary has broad discretion
regarding which factor(s) to use and how much weight to give to any
factor.
Under section 4(b)(2) of the Act, we may exclude an area from
designated critical habitat based on economic impacts, impacts on
national security, or any other relevant impacts. In considering
whether to exclude a particular area from the designation, we identify
the benefits of including the area in the designation, identify the
benefits of excluding the area from the designation, and evaluate
whether the benefits of exclusion outweigh the benefits of inclusion.
If the analysis indicates that the benefits of exclusion outweigh the
benefits of inclusion, the Secretary may exercise his discretion to
exclude the area only if such exclusion would not result in the
extinction of the species.
Exclusions Based on Economic Impacts
Under section 4(b)(2) of the Act, we consider the economic impacts
of specifying any particular area as critical habitat. In order to
consider economic impacts, we prepared a draft economic analysis of the
proposed critical habitat designation and related factors (Industrial
Economics Incorporated 2010). The draft analysis, dated December 6,
2010, was made available for public review from January 12, 2011,
through February 11, 2011 (76 FR 2076). Following the close of the
comment period, a final analysis, dated March 11, 2011, of the
potential economic effects of the designation was developed, taking
into consideration the public comments and any new information
(Industrial Economics Incorporated 2011).
The intent of the final economic analysis (FEA) is to quantify the
economic impacts of all potential conservation efforts for the Tumbling
Creek cavesnail; some of these costs will likely be incurred regardless
of whether we designate critical habitat (baseline). The economic
impact of the final critical habitat designation is analyzed by
comparing scenarios both ``with critical habitat'' and ``without
critical habitat.'' The ``without critical habitat'' scenario
represents the baseline for the analysis, considering protections
already in place for the species (e.g., under the Federal listing and
other Federal, State, and local regulations). The baseline, therefore,
represents the costs incurred regardless of whether critical habitat is
designated. The ``with critical habitat'' scenario describes the
incremental impacts associated specifically with the designation of
critical habitat for the species. The incremental conservation efforts
and associated impacts are those not expected to occur absent the
designation of critical habitat for the species. In other words, the
incremental costs are those attributable solely to the designation of
critical habitat above and beyond the baseline costs; these are the
costs we consider in the final designation of critical habitat. The
analysis looks retrospectively at baseline impacts incurred since the
species was listed, and forecasts both baseline and incremental impacts
likely to occur with the designation of critical habitat.
The FEA also addresses how potential economic impacts are likely to
be distributed, including an assessment of any local or regional
impacts of habitat conservation and the potential effects of
conservation activities on government agencies, private businesses, and
individuals. The FEA measures lost economic efficiency associated with
residential and commercial development and public projects and
activities, such as economic impacts on water management and
transportation projects, Federal lands, small entities, and the energy
industry. Decision-makers can use this information to assess whether
the effects of the designation might unduly burden a particular group
or economic sector. Finally, the FEA looks retrospectively at costs
that have been incurred since 2002 (67 FR 52879), and considers those
costs that may occur in the 20 years following the designation of
critical habitat, which was determined to be the appropriate period for
analysis because limited planning information was available for most
activities to forecast activity levels for projects beyond a 20-year
timeframe. The FEA quantifies economic impacts of the Tumbling Creek
cavesnail conservation efforts associated with the following categories
of activity: water management and any activities that may affect water
quality.
Because any baseline impacts would be those associated with already
existing regulations absent critical habitat designation, and such
actions will not be affected by the regulation, no new baseline costs
were identified. The primary focus on the FEA was on monetizing the
projected incremental impacts forecast from the designation.
Incremental impacts are estimated to be $50,100 between 2011 and 2030,
assuming a 7 percent discount rate. Estimated incremental costs are
forecast to be entirely administrative costs of section 7 consultations
involving projects that could potentially adversely modify the water
management and water quality of Tumbling Creek.
Our economic analysis did not identify any disproportionate costs
that are likely to result from the designation. Consequently, the
Secretary is not exerting his discretion to exclude any areas from this
designation of critical habitat for the Tumbling Creek cavesnail based
on economic impacts.
A copy of the FEA with supporting documents may be obtained by
contacting the Columbia Fish and Wildlife Office (see ADDRESSES) or by
downloading from the Internet at http://www.regulations.gov.
Exclusions Based on National Security Impacts
Under section 4(b)(2) of the Act, we consider whether there are
lands owned or managed by the Department of Defense where a national
security impact might exist. In preparing this final rule, we have
determined that the lands within the designation of critical habitat
for the Tumbling Creek cavesnail are not owned or managed by the
Department of Defense, and, therefore, we anticipate no impact on
national security. Consequently, the Secretary is not exerting his
discretion to exclude any areas from this final designation based on
impacts on national security.
Exclusion Based on Other Relevant Impacts
Under section 4(b)(2) of the Act, we consider any other relevant
impacts, in addition to economic impacts and impacts on national
security. We consider a number of factors, including whether landowners
have developed any conservation plans or other management plans for the
area, or whether there are conservation partnerships that would be
encouraged by designation of lands for, or exclusion of lands from,
critical habitat. In addition, we look at any Tribal issues, and
consider the government-to-government relationship of the United States
with Tribal entities. We also consider any social impacts that might
occur because of the designation.
In preparing this final rule, we have determined that there are
currently no conservation plans or other management plans for the
Tumbling Creek cavesnail, and the designation does not include any
Tribal lands or trust resources. We anticipate no impact to Tribal
lands, partnerships, or management plans from this critical habitat
designation. There are no areas proposed for exclusion
[[Page 37673]]
from this designation based on other relevant impacts.
Required Determinations
Regulatory Planning and Review--Executive Order 12866
The Office of Management and Budget (OMB) has determined that this
rule is not significant under Executive Order 12866 (E.O. 12866). OMB
bases its determination on the following four criteria:
(1) Whether the rule will have an annual effect of $100 million or
more on the economy or adversely affect an economic sector,
productivity, jobs, the environment, or other units of the government.
(2) Whether the rule will create inconsistencies with other Federal
agencies' actions.
(3) Whether the rule will materially affect entitlements, grants,
user fees, loan programs, or the rights and obligations of their
recipients.
(4) Whether the rule raises novel legal or policy issues.
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
(SBREFA) of 1996 (5 U.S.C. 801 et seq.), whenever an agency must
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
(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
statement of the factual basis for certifying that the rule will not
have a significant economic impact on a substantial number of small
entities. In this final rule, we are certifying that the critical
habitat designation for Tumbling Creek cavesnail will not have a
significant economic impact on a substantial number of small entities.
The following discussion explains our rationale.
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; as well as small businesses. 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 on
these small entities are significant, we consider the types of
activities that might trigger regulatory impacts under this rule, as
well as the types of project modifications that may result. In general,
the term ``significant economic impact'' is meant to apply to a typical
small business firm's business operations.
To determine if the rule could significantly affect a substantial
number of small entities, we consider the number of small entities
affected within particular types of economic activities (e.g., water
management and any activities that may affect the water quality of
Tumbling Creek). We apply the ``substantial number'' test individually
to each industry to determine if certification is appropriate. However,
the SBREFA does not explicitly define ``substantial number'' or
``significant economic impact.'' Consequently, to assess whether a
``substantial number'' of small entities is affected by this
designation, this analysis considers the relative number of small
entities likely to be impacted in an area. In some circumstances,
especially with critical habitat designations of limited extent, we may
aggregate across all industries and consider whether the total number
of small entities affected is substantial. In estimating the number of
small entities potentially affected, we also consider whether their
activities have any Federal involvement.
Designation of critical habitat only affects activities authorized,
funded, or carried out by Federal agencies. Some kinds of activities
are unlikely to have any Federal involvement and so will not be
affected by critical habitat designation. In areas where the species is
present, Federal agencies already are required to consult with us under
section 7 of the Act on activities they authorize, fund, or carry out
that may affect the Tumbling Creek cavesnail. Federal agencies also
must consult with us if their activities may affect critical habitat.
Designation of critical habitat, therefore, could result in an
additional economic impact on small entities due to the requirement to
reinitiate consultation for ongoing Federal activities (see Application
of the ``Adverse Modification Standard'' section).
In our FEA of the critical habitat designation, we evaluated the
potential economic effects on small business entities resulting from
conservation actions related to the listing of the Tumbling Creek
cavesnail and the designation of critical habitat. The analysis is
based on the estimated impacts associated with the rulemaking as
described in Chapters 1 through 3 and Appendix A of the analysis and
evaluates the potential for economic impacts related to water
management and any activities that may affect water quality. As
outlined in the distributional analyses in chapter 3 of the FEA and
Appendix A, it is not anticipated that there will be any economic
impact to any small entities including any city, county, or privately
owned businesses.
In summary, we considered whether this designation would result in
a significant economic effect on a substantial number of small
entities. Based on the above reasoning and currently available
information, we concluded that this rule would not result in a
significant economic impact on a substantial number of small entities.
Therefore, we are certifying that the designation of critical habitat
for the Tumbling Creek cavesnail will not have a significant economic
impact on a substantial number of small entities, and a regulatory
flexibility analysis is not required.
Energy Supply, Distribution, or Use--Executive Order 13211
Executive Order 13211 (Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use) requires
agencies to prepare Statements of Energy Effects when undertaking
certain actions. OMB has provided guidance for implementing this
Executive Order that outlines nine outcomes that may constitute ``a
significant adverse effect'' when compared to not taking the regulatory
action under consideration. The economic analysis finds that none of
these criteria are relevant to this analysis. Thus, based on
information in the economic analysis, energy-related impacts associated
with Tumbling Creek cavesnail conservation activities within critical
habitat are not expected. As such, the designation of critical habitat
is not expected to significantly affect energy supplies, distribution,
or use. Therefore, this action is not a significant
[[Page 37674]]
energy action, and no Statement of Energy Effects is required.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following findings:
(1) This rule will not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute, or regulation
that would impose an enforceable duty upon State, local, or Tribal
governments, or the private sector, and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or Tribal governments'' with two
exceptions. It excludes ``a condition of Federal assistance.'' It also
excludes ``a duty arising from participation in a voluntary Federal
program,'' unless the regulation ``relates to a then-existing Federal
program under which $500,000,000 or more is provided annually to State,
local, and Tribal governments under entitlement authority,'' if the
provision would ``increase the stringency of conditions of assistance''
or ``place caps upon, or otherwise decrease, the Federal Government's
responsibility to provide funding,'' and the State, local, or Tribal
governments ``lack authority'' to adjust accordingly. At the time of
enactment, these entitlement programs were: Medicaid; Aid to Families
with Dependent Children work programs; Child Nutrition; Food Stamps;
Social Services Block Grants; Vocational Rehabilitation State Grants;
Foster Care, Adoption Assistance, and Independent Living; Family
Support Welfare Services; and Child Support Enforcement. ``Federal
private sector mandate'' includes a regulation that ``would impose an
enforceable duty upon the private sector, except (i) a condition of
Federal assistance or (ii) a duty arising from participation in a
voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal Government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not destroy or adversely modify critical
habitat under section 7. While non-Federal entities that receive
Federal funding, assistance, or permits, or that otherwise require
approval or authorization from a Federal agency for an action, may be
indirectly impacted by the designation of critical habitat, the legally
binding duty to avoid destruction or adverse modification of critical
habitat rests squarely on the Federal agency. Furthermore, to the
extent that non-Federal entities are indirectly impacted because they
receive Federal assistance or participate in a voluntary Federal aid
program, the Unfunded Mandates Reform Act would not apply, nor would
critical habitat shift the costs of the large entitlement programs
listed above onto State governments.
(2) We do not believe that this rule will significantly or uniquely
affect small governments because it would not produce a Federal mandate
of $100 million or greater in any year; that is, it is not a
``significant regulatory action'' under the Unfunded Mandates Reform
Act. The FEA concludes incremental impacts may occur due to
administrative costs of section 7 consultations for actions that impact
the water management or water quality of Tumbling Creek; however, these
are not expected to significantly affect small governments. Thus, we do
not believe that the critical habitat designation would significantly
or uniquely affect small government entities, and as such, a Small
Government Agency Plan is not required.
Takings--Executive Order 12630
In accordance with Executive Order 12630 (Government Actions and
Interference with Constitutionally Protected Private Property Rights),
we have analyzed the potential takings implications of designating
critical habitat for the Tumbling Creek cavesnail in a takings
implications assessment. Critical habitat designation 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. The takings implications
assessment concludes that this designation of critical habitat for the
Tumbling Creek cavesnail 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), the rule does not have
significant Federalism effects. A Federalism assessment is not
required. In keeping with Department of the Interior and Department of
Commerce policy, we requested information from, and coordinated
development of this critical habitat designation with, appropriate
State resource agencies in Missouri. The designation of critical
habitat in areas currently occupied by the Tumbling Creek cavesnail
imposes no additional restrictions to those currently in place and,
therefore, has little incremental impact on State and local governments
and their activities. The designation may have some benefit to this
government in that the areas that contain the physical and biological
features essential to the conservation of the species are more clearly
defined, and the elements of the habitat features 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 local governments in long-
range planning (rather than having them wait for case-by-case section 7
consultations to occur). Where State and local governments require
approval or authorization from a Federal agency for actions that may
affect critical habitat, consultation under section 7(a)(2) of the Act
would be required. While non-Federal entities that receive Federal
funding, assistance, or permits, or that otherwise require approval or
authorization from a Federal agency for an action may be indirectly
impacted by the designation of critical habitat, the legally binding
duty to avoid destruction or adverse modification of critical habitat
rests squarely on the Federal agency.
Civil Justice Reform--Executive Order 12988
In accordance with E.O. 12988 (Civil Justice Reform), the
regulation meets the applicable standards set forth in sections 3(a)
and 3(b)(2) of the Order. We are designating critical habitat in
accordance with the provisions of the Act. This final rule uses
standard property descriptions and identifies the elements of the
physical and biological features essential to the conservation of the
Tumbling Creek cavesnail within the designated areas to assist the
public in understanding the habitat needs of the species.
Paperwork Reduction Act of 1995
This rule does not contain any new collections of information that
require approval by OMB under the Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.). This rule will not impose recordkeeping or
reporting requirements on State or local governments, individuals,
businesses, or organizations. An agency may not conduct or sponsor, and
a person is not required to respond to, a collection of information
unless it displays a currently valid OMB control number.
[[Page 37675]]
National Environmental Policy Act (NEPA)
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 as defined by the National Environmental Policy
Act (NEPA; 42 U.S.C. 4321 et seq.) in connection with designating
critical habitat under the Act. We published a notice outlining our
reasons for this determination in the Federal Register on October 25,
1983 (48 FR 49244). This position was upheld by the U.S. Court of
Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495
(9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)).
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994
(Government-to-Government Relations with Native American Tribal
Governments; 59 FR 22951), Executive Order 13175 (Consultation and
Coordination With Indian Tribal Governments), and the Department of the
Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. In accordance with
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species Act),
we readily acknowledge our responsibilities to work directly with
Tribes in developing programs for healthy ecosystems, to acknowledge
that Tribal lands are not subject to the same controls as Federal
public lands, to remain sensitive to Indian culture, and to make
information available to Tribes.
We have determined that there are no Tribal lands occupied at the
time of listing that contain the features essential for the
conservation of the Tumbling Creek cavesnail, and no Tribal lands
unoccupied by the Tumbling Creek cavesnail that are essential for the
conservation of the species. Therefore, we are not designating critical
habitat for the Tumbling Creek cavesnail on Tribal lands.
Data Quality Act
In developing this rule, we did not conduct or use a study,
experiment, or survey requiring peer review under the Data Quality Act
(Pub. L. 106-554).
References Cited
A complete list of all references cited is available on the
Internet at http://www.regulations.gov and upon request from the Field
Supervisor, Columbia Fish and Wildlife Office (see ADDRESSES).
Authors
The primary authors of this document are the staff members of the
Columbia Fish and Wildlife Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Regulation Promulgation
Accordingly, we amend part 17, subchapter B of chapter I, title 50
of the Code of Federal Regulations, as set forth below:
PART 17--[AMENDED]
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
0
2. Amend Sec. 17.11(h), by revising the entry for ``Cavesnail,
Tumbling Creek'' under ``SNAILS'' in the List of Endangered and
Threatened Wildlife to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species Vertebrate
------------------------------------------------------ population where Critical Special
Historic range endangered or Status When listed habitat rules
Common name Scientific name threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
SNAILS
* * * * * * *
Cavesnail, Tumbling Creek....... Antrobia culveri... U.S.A. (MO)........ NA................. E............... 731 17.95(f) NA
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
0
3. In Sec. 17.95(f), add an entry for ``Tumbling Creek Cavesnail
(Antrobia culveri)'' in the same alphabetical order as the species
appears in the table at Sec. 17.11(h), to read as follows:
Sec. 17.95 Critical habitat--fish and wildlife.
* * * * *
(f) Clams and Snails.
* * * * *
Tumbling Creek Cavesnail (Antrobia culveri)
(1) The critical habitat unit is depicted for Taney County,
Missouri, on the map at paragraph (f)(5)(ii) of this section.
(2) Within this area, the primary constituent elements of the
physical and biological features essential to the conservation of the
Tumbling Creek cavesnail consist of five components:
(i) Geomorphically stable stream bottoms and banks (stable
horizontal dimension and vertical profile) in order to:
(A) Maintain bottom features (riffles, runs, and pools) and
transition zones between bottom features;
(B) Continue appropriate habitat to maintain essential riffles,
runs, and pools; and
(C) Promote connectivity between Tumbling Creek and its tributaries
and associated springs to maintain gene flow throughout the population.
(ii) Instream flow regime with an average daily discharge between
0.07 and 150 cubic feet per second (cfs), inclusive of both surface
runoff and groundwater sources (springs and seepages).
(iii) Water quality with temperature 55-62 [deg]F (12.78-16.67
[deg]C), dissolved oxygen 4.5 milligrams or greater per liter, and
turbidity of an average monthly reading of no more than 200
Nephelometric Turbidity Units (NTU; units used to measure sediment
discharge) for a duration not to exceed 4 hours.
[[Page 37676]]
(iv) Bottom substrates consisting of fine gravel with coarse gravel
or cobble, or bedrock with sand and gravel, with low amounts of fine
sand and sediments within the interstitial spaces of the substrates.
(v) Energy input from guano that originates mainly from gray bats
(Myotis grisescens) that roost in the cave; guano is essential in the
development of biofilm (the organic coating and bacterial layer that
covers rocks in the cave stream) that cavesnails use for food.
(3) Critical habitat does not include manmade structures (such as
buildings, aqueducts, runways, roads, and other paved areas) and the
land on which they are located existing within the legal boundaries on
the effective date of this rule.
(4) Critical habitat map unit. Data layers defining the map unit
were created using 7.5' topographic quadrangle maps and ArcGIS (version
9.3.1) mapping software.
(5) Tumbling Creek Cavesnail Critical Habitat Unit.
(i) U.S. Geological Survey 7.5' Topographic Protem Quad. Land
bounded by the following UTM Zone 15N, North American Datum of 1983
(NAD83) coordinates (W, N): from the emergence of Tumbling Creek within
Tumbling Creek Cave at Lat. 36[deg]33'37.41'' N, Long.
92[deg]48'27.23'' W to its confluence with Bear Cave Hollow and Owens
Spring upstream of Big Creek at at Lat. 36[deg]33'15.2'' N, Long.
92[deg]47'51.74'' W.
(ii) Note: Map of Tumbling Creek Cavesnail Critical Habitat Unit
follows:
BILLING CODE 4310-55-P
[[Page 37677]]
TR28JN11.000
* * * * *
Dated: June 17, 2011.
Rachel Jacobson,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2011-16016 Filed 6-27-11; 8:45 am]
BILLING CODE 4310-55-C