[Federal Register Volume 85, Number 25 (Thursday, February 6, 2020)]
[Proposed Rules]
[Pages 6856-6883]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-02294]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R4-ES-2018-0094; 4500090023]
RIN 1018-BD08
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for Yellow Lance
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
designate critical habitat for the yellow lance (Elliptio lanceolata)
under the Endangered Species Act of 1973 (Act), as amended. In total,
approximately 319 river miles (mi) (514 kilometers (km)) in North
Carolina, Virginia, and Maryland fall within the boundaries of the
proposed critical habitat designation. If we finalize this rule as
proposed, it would extend the Act's protections to this species'
critical habitat. We also announce the availability of a draft economic
analysis of the proposed designation.
DATES: We will accept comments on the proposed rule and draft economic
analysis that are received or postmarked on or before April 6, 2020.
Comments submitted electronically using the Federal eRulemaking Portal
(see ADDRESSES, below) must be received by 11:59 p.m. Eastern Time on
the closing date. We must receive requests for public hearings, in
writing, at the address shown in FOR FURTHER INFORMATION CONTACT by
March 23, 2020.
ADDRESSES: Written comments: You may submit comments on the proposed
rule or draft economic analysis by one of the following methods:
(1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter FWS-R4-ES-2018-0094,
which is the docket number for this rulemaking. Then, click on the
Search button. On the resulting page, in the Search panel on the left
side of the screen, under the Document Type heading, click on the
Proposed Rule box to locate this document. You may submit a comment by
clicking on ``Comment Now!''
(2) By hard copy: Submit by U.S. mail or hand-delivery to: Public
Comments Processing, Attn: FWS-R4-ES-2018-0094; U.S. Fish and Wildlife
Service, MS: BPHC, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
We request that you send comments only by the methods described
above. We will post all comments on http://www.regulations.gov. This
generally means that we will post any personal information you provide
us (see Information Requested, below, for more information).
Document availability: The draft economic analysis is available at
http://www.fws.gov/southeast, at http://www.regulations.gov under
Docket No. FWS-R4-ES-2018-0094, and at the Raleigh Ecological Services
Field Office (see FOR FURTHER INFORMATION CONTACT).
The coordinates or plot points or both from which the maps are
generated are included in the administrative record for this proposed
critical habitat designation and are available at https://
[[Page 6857]]
www.fws.gov/southeast/, at http://www.regulations.gov under Docket No.
FWS-R4-ES-2018-0094, and at the Raleigh Ecological Services Field
Office (see FOR FURTHER INFORMATION CONTACT). Any additional tools or
supporting information that we may develop for the critical habitat
designation will also be available at the Service website and Field
Office set out above, and may also be included in the preamble of this
proposed rule and/or at http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Pete Benjamin, Field Supervisor, U.S.
Fish and Wildlife Service, Raleigh Ecological Services Field Office,
551F Pylon Drive, Raleigh, NC 27606; telephone 919-856-4520. Persons
who use a telecommunications device for the deaf (TDD) may call the
Federal Relay Service at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. To the maximum extent prudent and
determinable, we must designate critical habitat for any species that
we determine to be an endangered or threatened species under the Act.
Designations of critical habitat can only be completed by issuing a
rule.
This rulemaking proposes to designate critical habitat for the
yellow lance (Elliptio lanceolata). The yellow lance was listed as
threatened under the Act on April 3, 2018 (83 FR 14189).
The basis for our action. Section 4(a)(3) of the Act requires the
Secretary of the Interior (Secretary) to designate critical habitat
concurrent with listing to the extent prudent and determinable. Section
4(b)(2) of the Act states that the Secretary shall designate critical
habitat on the basis of the best available scientific data after taking
into consideration the economic impact, the impact on national
security, and any other relevant impact of specifying any particular
area as critical habitat. 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 if such areas are essential for the
conservation of the species.
We prepared an economic analysis of the proposed designation of
critical habitat. In accordance with section 4(b)(2) of the Act, we
prepared an analysis of the economic impacts of the proposed critical
habitat designation. In this document, we announce the availability of
the draft economic analysis for public review and comment.
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 sought the expert opinions
of appropriate specialists regarding the species status assessment
report, which informed this proposed rule. The purpose of peer review
is to ensure that our designation is based on scientifically sound
data, assumptions, and analyses. The peer reviewers have expertise in
mussel biology, habitat, and stressors (factors negatively affecting
the species) to the species. We invite any additional comment from the
peer reviewers during the public comment period for this proposed rule
(see DATES, above).
Information Requested
We intend that any final action resulting from this proposed rule
will be based on the best scientific data available and be as accurate
and as effective as possible. Therefore, we request comments or
information from other concerned government agencies, Native American
tribes, the scientific community, industry, or any other interested
party concerning this proposed rule. We particularly seek comments
concerning:
(1) The reasons why we should or should not designate habitat as
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et
seq.), including information to inform the following factors such that
a designation of critical habitat may be determined to be not prudent:
(a) The species is threatened by taking or other human activity and
identification of critical habitat can be expected to increase the
degree of such threat to the species;
(b) The present or threatened destruction, modification, or
curtailment of a species' habitat or range is not a threat to the
species, or threats to the species' habitat stem solely from causes
that cannot be addressed through management actions resulting from
consultations under section 7(a)(2) of the Act;
(c) Areas within the jurisdiction of the United States provide no
more than negligible conservation value, if any, for a species
occurring primarily outside the jurisdiction of the United States;
(d) No areas meet the definition of critical habitat.
(2) Specific information on:
(a) The amount and distribution of yellow lance habitat;
(b) What areas, that were occupied at the time of listing and that
contain the physical or biological features essential to the
conservation of the species, should be included in the designation and
why;
(c) Special management considerations or protection that may be
needed in critical habitat areas we are proposing, including managing
for the potential effects of climate change; and
(d) What areas not occupied at the time of listing are essential
for the conservation of the species. We particularly seek comments
regarding:
(i) Whether occupied areas are inadequate for the conservation of
the species; and,
(ii) Specific information that supports the determination that
unoccupied areas will, with reasonable certainty, contribute to the
conservation of the species and, contain at least one physical or
biological feature essential to the conservation of the species.
(3) Land use designations and current or planned activities in the
subject areas and their possible impacts on proposed critical habitat.
(4) Information on the projected and reasonably likely impacts of
climate change on the yellow lance and proposed critical habitat.
(5) Any probable economic, national security, or other relevant
impacts of designating any area that may be included in the final
designation, and the benefits of including or excluding areas that may
be impacted.
(6) Information on the extent to which the description of probable
economic impacts in the draft economic analysis is a reasonable
estimate of the likely economic impacts.
(7) Whether any specific areas we are proposing for critical
habitat designation should be considered for exclusion under section
4(b)(2) of the Act, and whether the benefits of potentially excluding
any specific area outweigh the benefits of including that area under
section 4(b)(2) of the Act.
(8) The likelihood of adverse social reactions to the designation
of critical habitat, as discussed in the associated documents of the
draft economic analysis, and how the consequences of such reactions, if
likely to occur, would relate to the conservation and regulatory
benefits of the proposed critical habitat designation.
(9) Whether we could improve or modify our approach to designating
critical habitat in any way to provide for
[[Page 6858]]
greater public participation and understanding, or to better
accommodate public concerns and comments.
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in ADDRESSES. We request that you
send comments only by the methods described in ADDRESSES.
Please include sufficient information with your submission (such as
scientific journal articles or other publications) to allow us to
verify any scientific or commercial information you include. We also
invite additional comments from peer reviewers during the public
comment period. All comments submitted electronically via http://www.regulations.gov will be presented on the website in their entirety
as submitted. For comments submitted via hard copy, we will post your
entire comment--including your personal identifying information--on
http://www.regulations.gov. You may request at the top of your document
that we withhold personal information such as your street address,
phone number, or email address from public review; however, we cannot
guarantee that we will be able to do so.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection on http://www.regulations.gov, or by
appointment, during normal business hours, at the U.S. Fish and
Wildlife Service, Raleigh Ecological Services Field Office (see FOR
FURTHER INFORMATION CONTACT).
Previous Federal Actions
On April 20, 2010, we were petitioned to list 404 aquatic species,
including yellow lance, in the southeastern United States. In response
to the petition, we completed a partial 90-day finding on September 27,
2011 (76 FR 59836), in which we announced our finding that the petition
contained substantial information that listing may be warranted for the
yellow lance. On April 5, 2017, we published a proposed rule to list
the yellow lance as a threatened species (82 FR 16559). On April 3,
2018, we published the final rule to list the species as a threatened
species (83 FR 14189).
Please refer to the April 5, 2017, proposed listing rule for a
discussion of earlier Federal actions regarding the yellow lance.
Species Status Assessment
A species status assessment (SSA) team prepared an SSA report for
the yellow lance. The SSA team was composed of Service biologists, in
consultation with other species experts. The SSA report represents a
compilation of the best scientific and commercial data available
concerning the status of the species, including the impacts of past,
present, and future factors (both negative and beneficial) affecting
the species. The SSA report underwent independent peer review by
scientists with expertise in mussel biology, habitat management, and
stressors (factors negatively affecting the species) to the species.
Along with other information submitted during the process of listing
the species, the SSA report is the primary source of information for
this proposed designation. The SSA report and other materials relating
to this proposal can be found on the Service's Southeast Region website
at https://www.fws.gov/southeast/ and at http://www.regulations.gov
under Docket No. FWS-R4-ES-2018-0094, and at the Raleigh Ecological
Services Field Office (see FOR FURTHER INFORMATION CONTACT).
Critical Habitat
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 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 result in
destruction or adverse modification of the critical habitat, the
Federal action agency and the landowner are not required to abandon the
proposed activity, or to restore or recover the species; instead, they
must implement ``reasonable and prudent alternatives'' to avoid
destruction or adverse modification of critical habitat.
Under the first prong of the Act's definition of critical habitat,
areas within the geographical area occupied by the species at the time
it was listed are included in a critical habitat designation if they
contain physical or biological features (1) which are essential to the
conservation of the species and (2) which may require special
management considerations or protection. For these areas, critical
habitat designations identify, to the extent known using the best
scientific and commercial data available, those physical or biological
features that are essential to the conservation of the species (such as
space, food, cover, and protected habitat). In identifying those
physical or biological features that occur in specific occupied areas,
we focus on the specific features that are essential to support the
life-history needs of the species, including but not limited to, water
characteristics, soil type,
[[Page 6859]]
geological features, 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.
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. When designating critical habitat, the Secretary will first
evaluate areas occupied by the species. The Secretary will only
consider unoccupied areas to be essential where a critical habitat
designation limited to geographical areas occupied by the species would
be inadequate to ensure the conservation of the species. In addition,
for an unoccupied area to be considered essential, the Secretary must
determine that there is a reasonable certainty both that the area will
contribute to the conservation of the species and that the area
contains one or more of those physical or biological features essential
to the conservation of the species.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific data available. Further, our Policy on
Information Standards under the Endangered Species Act (published in
the Federal Register on July 1, 1994 (59 FR 34271)), the Information
Quality Act (section 515 of the Treasury and General Government
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)),
and our associated Information Quality Guidelines, provide criteria,
establish procedures, and provide guidance to ensure that our decisions
are based on the best scientific data available. They require our
biologists, to the extent consistent with the Act and with the use of
the best scientific data available, to use primary and original sources
of information as the basis for recommendations to designate critical
habitat.
When we are determining which areas should be designated as
critical habitat, our primary source of information is generally the
information from the SSA report, version 1.3 (Service 2018, entire),
and information developed during the listing process for the species.
Additional information sources may include any generalized conservation
strategy, criteria, or outline that may have been developed for the
species; the recovery plan for the species; articles in peer-reviewed
journals; conservation plans developed by States and counties;
scientific status surveys and studies; biological assessments; other
unpublished materials; or experts' opinions or personal knowledge.
Habitat is dynamic, and species may move from one area to another
over time. We recognize that critical habitat designated at a
particular point in time may not include all of the habitat areas that
we may later determine are necessary for the recovery of the species.
For these reasons, a critical habitat designation does not signal that
habitat outside the designated area is unimportant or may not be needed
for recovery of the species. Areas that are important to the
conservation of the species, both inside and outside the critical
habitat designation, will continue to be subject to: (1) Conservation
actions implemented under section 7(a)(1) of the Act, (2) regulatory
protections afforded by the requirement in section 7(a)(2) of the Act
for Federal agencies to ensure their actions are not likely to
jeopardize the continued existence of any endangered or threatened
species, and (3) section 9 of the Act's prohibitions on taking any
individual of the species, including taking caused by actions that
affect habitat. Federally funded or permitted projects affecting listed
species outside their designated critical habitat areas may still
result in jeopardy findings in some cases. These protections and
conservation tools will continue to contribute to recovery of this
species. Similarly, critical habitat designations made on the basis of
the best available information at the time of designation will not
control the direction and substance of future recovery plans, habitat
conservation plans (HCPs), or other species conservation planning
efforts if new information available at the time of these planning
efforts calls for a different outcome.
Prudency Determination
Section 4(a)(3) of the Act, as amended, and its implementing
regulations (50 CFR 424.12), require that the Secretary shall designate
critical habitat at the time the species is determined to be an
endangered or threatened species to the maximum extent prudent and
determinable. The regulations at 50 CFR 424.12(a)(1) state that the
Secretary may, but is not required to, determine that a designation
would not be prudent in the following circumstances:
(i) The species is threatened by taking or other human activity and
identification of critical habitat can be expected to increase the
degree of such threat to the species;
(ii) The present or threatened destruction, modification, or
curtailment of a species' habitat or range is not a threat to the
species, or threats to the species' habitat stem solely from causes
that cannot be addressed through management actions resulting from
consultations under section 7(a)(2) of the Act;
(iii) Areas within the jurisdiction of the United States provide no
more than negligible conservation value, if any, for a species
occurring primarily outside the jurisdiction of the United States;
(iv) No areas meet the definition of critical habitat; or
(v) The Secretary otherwise determines that designation of critical
habitat would not be prudent based on the best scientific data
available.
We did not identify any of the factors above to apply to the yellow
lance. Therefore, we find designation of critical habitat is prudent
for the species.
Critical Habitat Determinability
Having determined that designation is prudent, under section
4(a)(3) of the Act we must find whether critical habitat for the yellow
lance is determinable. Our regulations at 50 CFR 424.12(a)(2) state
that critical habitat is not determinable when one or both of the
following situations exist:
(i) Data sufficient to perform required analyses are lacking; or
(ii) The biological needs of the species are not sufficiently well
known to identify any area that meets the definition of ``critical
habitat.'' When critical habitat is not determinable, the Act allows
the Service an additional year to publish a critical habitat
designation (16 U.S.C. 1533(b)(6)(C)(ii)).
We reviewed the available information pertaining to the biological
needs of the species and habitat characteristics where this species is
located. We find that this information is sufficient for us to conduct
both the biological and economic analyses required for the critical
habitat determination. This and other information represent the best
scientific data available and led us to conclude that the designation
of critical habitat is now determinable for the yellow lance.
Physical or Biological Features
In accordance with section 3(5)(A)(i) of the Act and regulations at
50 CFR 424.12(b), in determining which areas within the geographical
area occupied
[[Page 6860]]
by the species at the time of listing to designate as critical habitat,
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. These include, but are 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.
The features may also be combinations of habitat characteristics
and may encompass the relationship between characteristics or the
necessary amount of a characteristic needed to support the life history
of the species. In considering whether features are essential to the
conservation of the species, the Service 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.
The yellow lance is a sand-loving species (Alderman 2003, p. 6)
often found buried deep in clean, coarse to medium sand and sometimes
migrating with shifting sands (NatureServe 2015, p. 6), although it has
also been found in gravel substrates. The species is dependent on clean
(i.e., not polluted), moderately flowing water with high dissolved
oxygen content in riverine or larger creek environments. Most
freshwater mussels, including the yellow lance, are found in
aggregations (mussel beds) that vary in size and are often separated by
stream reaches in which mussels are absent or rare (Vaughn 2012, p.
983). Genetic exchange occurs between and among mussel beds via sperm
drift, host fish movement, and movement of mussels during high flow
events.
The yellow lance are omnivores that primarily filter feed on a wide
variety of microscopic particulate matter suspended in the water
column, including phytoplankton, zooplankton, bacteria, detritus, and
dissolved organic matter (Haag 2012, p. 26). Like most freshwater
mussels, they have a unique life cycle that relies on fish hosts for
successful reproduction. Yellow lance larvae (glochidia) are obligate
parasites of the gills, heads, or fins of fish; primary host species
are members of the Cyprinidae family, including the white shiner
(Luxilus albeolus) and pinewoods shiner (Lythrurus matutinus).
A thorough review of the life history and ecology of the yellow
lance is presented in the SSA report (Service 2018, entire). A summary
of the resource needs of the yellow lance is in Table 1.
Table 1--Life History and Resource Needs of the Yellow Lance
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Resources and/or circumstances
Life stage needed for individuals to Resource function (BFSD *)
complete each life stage
----------------------------------------------------------------------------------------------------------------
Fertilized Eggs--early spring........... Clear, flowing water... B
Sexually mature males
upstream from sexually mature
females.
Appropriate spawning
temperatures.
Presence of gravid
females.
Glochidia--late spring to early summer.. Clear, flowing water... B, D
Just enough flow to
attract drift feeding minnows.
Presence of host fish
for attachment.
Juveniles--excystment from host fish to Clear, flowing water... F, S
~35 mm shell length. Host fish dispersal....
Appropriate
interstitial chemistry.
--Low salinity (~0.9 ppt)....
--Low ammonia (~0.7 mg/L)....
--Low levels of copper and
other contaminants.
--Dissolved oxygen >1.3 mg/L.
Appropriate substrate
for settlement.
Adequate food
availability.
Adult-->35 mm shell length.............. Clear, flowing water... F, S
Appropriate substrate
(silt-free gravel and stable,
coarse sand).
Adequate food
availability (phytoplankton and
detritus).
High dissolved oxygen
(>3 mg/L).
Water temperature <35
[deg]C.
----------------------------------------------------------------------------------------------------------------
* B = breeding; F = feeding; S=sheltering; D = dispersal.
Summary of Essential Physical or Biological Features
We have determined that the following physical or biological
features are essential to the conservation of yellow lance:
(1) Suitable substrates and connected instream habitats,
characterized by geomorphically stable stream channels and banks (i.e.,
channels that maintain lateral dimensions, longitudinal profiles, and
sinuosity patterns over time without an aggrading or degrading bed
elevation) with habitats that support a diversity of freshwater mussels
and native fish (such as stable riffle-run-pool habitats that provide
flow refuges consisting of silt-free gravel and coarse sand
substrates).
(2) Adequate flows, or a hydrologic flow regime (which includes the
severity, frequency, duration, and seasonality of discharge over time),
necessary to maintain benthic habitats where the species is found and
to maintain connectivity of streams with the floodplain, allowing the
exchange of nutrients and sediment for maintenance of the mussel's and
fish host's habitat, food availability, spawning habitat for native
fishes, and the ability for newly transformed juveniles to settle and
become established in their habitats.
[[Page 6861]]
(3) Water and sediment quality (including, but not limited to,
conductivity, hardness, turbidity, temperature, pH, ammonia, heavy
metals, and chemical constituents) necessary to sustain natural
physiological processes for normal behavior, growth, and viability of
all life stages.
(4) The presence and abundance of fish hosts necessary for
recruitment of the yellow lance.
Special Management Considerations or Protection
When designating critical habitat, we assess whether the specific
areas within the geographical area occupied by the species at the time
of listing contain features which are essential to the conservation of
the species and which may require special management considerations or
protection. The features essential to the conservation of the yellow
lance may require special management considerations or protections to
reduce the following threats: (1) Urbanization of the landscape,
including (but not limited to) land conversion for urban and commercial
use, infrastructure (roads, bridges, utilities), and urban water uses
(water supply reservoirs, wastewater treatment, etc.); (2) nutrient
pollution from agricultural activities that impact water quantity and
quality; (3) significant alteration of water quality; (4) improper
forest management or silviculture activities that remove large areas of
forested wetlands and riparian systems; (5) culvert and pipe
installation that create barriers to movement; (6) impacts from
invasive species; (7) changes and shifts in seasonal precipitation
patterns as a result of climate change; and (8) other watershed and
floodplain disturbances that release sediments or nutrients into the
water.
Management activities that could ameliorate these threats include,
but are not limited to: Use of best management practices (BMPs)
designed to reduce sedimentation, erosion, and bank side destruction;
protection of riparian corridors and retention of sufficient canopy
cover along banks; moderation of surface and ground water withdrawals
to maintain natural flow regimes; increased use of stormwater
management and reduction of stormwater flows into the systems; and
reduction of other watershed and floodplain disturbances that release
sediments, pollutants, or nutrients into the water.
Criteria Used To Identify Critical Habitat
As required by section 4(b)(2) of the Act, we use the best
scientific data available to designate critical habitat. In accordance
with the Act and our implementing regulations at 50 CFR 424.12(b), we
review available information pertaining to the habitat requirements of
the species and identify specific areas within the geographical area
occupied by the species at the time of listing and any specific areas
outside the geographical area occupied by the species to be considered
for designation as critical habitat.
The current distribution of the yellow lance is reduced from its
historical distribution. We anticipate that recovery will require
continued protection of existing populations and habitat, as well as
ensuring there are adequate numbers of mussels in stable populations
and that these populations occur over a wide geographic area. This
strategy will help to ensure that catastrophic events, such as floods,
which can cause excessive sedimentation, nutrients, and debris to
disrupt stream ecology, cannot simultaneously affect all known
populations. Rangewide recovery considerations, such as maintaining
existing genetic diversity and striving for representation of all major
portions of the species' current range, were considered in formulating
this proposed critical habitat designation.
Sources of data for this proposed critical habitat include multiple
databases maintained by universities and State agencies for North
Carolina, Virginia, and Maryland, and numerous survey reports on
streams throughout the species' range. Other sources of available
information on habitat requirements for this species include studies
conducted at occupied sites and published in peer-reviewed articles,
agency reports, and data collected during monitoring efforts (Service
2018, entire).
Areas Occupied at the Time of Listing
We identified stream channels that currently support populations of
the yellow lance. In the SSA report, we define ``current'' as stream
channels with observations of the species from 2005 to the present. Due
to the breadth and intensity of survey effort done for freshwater
mussels throughout the known range of the species, it is reasonable to
assume that streams with no positive surveys since 2005 should not be
considered occupied for the purpose of our analysis.
Specific habitat areas were delineated based on Natural Heritage
Element Occurrences (EOs) following NatureServe's occurrence
delineation protocol for freshwater mussels (NatureServe 2018,
unpaginated). These EOs provide habitat for yellow lance subpopulations
and are large enough to be self-sustaining over time, despite
fluctuations in local conditions. The EOs contain stream reaches with
interconnected waters so that host fish containing yellow lance
glochidia can move between areas, at least during certain flows or
seasons. Based on this information, we consider the following streams
in Maryland, Virginia, and North Carolina to be occupied by the species
at the time of listing: Patuxent River, Rappahannock Subbasin
(including the Rappahannock River, South Run, Carter Run, Thumb Run,
Hungry Run, and Great Run), Rapidan Subbasin (including the Rapidan
River, Blue Run, and Marsh Run), South Anna River, Johns Creek,
Nottoway Subbasin (including the Nottoway River, Crooked Creek, and
Sturgeon Creek), Tar River, Sandy/Swift Creek, Fishing Creek Subbasin
(including Fishing Creek, Shocco Creek, and Richneck Creek), Swift
Creek, and Little River (see unit descriptions under Proposed Critical
Habitat Designation, below). The proposed critical habitat designation
does not include all streams known to have been occupied by the species
historically; instead, it includes only the currently occupied streams
within the historical range that have also retained some or all of the
physical or biological features that will allow for the maintenance and
expansion of existing populations.
Areas Outside the Geographic Area Occupied at the Time of Listing
We are not proposing to designate any areas outside the
geographical area currently occupied by the species because we did not
find any unoccupied areas that were essential for the conservation of
the species. The protection of stream segments within the seven
currently existing populations (Patuxent, Rappahannock, York, James,
Chowan, Tar, and Neuse), which are located across the physiographic
representation of the range, would sufficiently reduce the risk of
extinction. Improving the resiliency of populations in the currently
occupied streams will increase viability to the point that the
protections of the Act are no longer necessary.
General Information on the Maps of the Proposed Critical Habitat
Designation
The proposed critical habitat designation is defined by the map or
maps, as modified by any accompanying
[[Page 6862]]
regulatory text, presented at the end of this document under Proposed
Regulation Promulgation. We include more detailed information on the
boundaries of the critical habitat designation in the discussion of
individual units below. We will make the coordinates or plot points or
both on which each map is based available to the public at http://www.regulations.gov under Docket No. FWS-R4-ES-2018-0094, at http://www.fws.gov/southeast, and at the Raleigh Ecological Services Field
Office (see FOR FURTHER INFORMATION CONTACT, above).
When determining proposed critical habitat boundaries, we made
every effort to avoid including developed areas such as lands covered
by buildings, pavement, and other structures because such lands lack
physical or biological features necessary for yellow lance. The scale
of the maps we prepared under the parameters for publication within the
Code of Federal Regulations may not reflect the exclusion of such
developed lands. Any such lands inadvertently left inside critical
habitat boundaries shown on the maps of this proposed rule have been
excluded by text in the proposed rule and are not proposed for
designation as critical habitat. Therefore, if the critical habitat is
finalized as proposed, a Federal action involving these lands would not
trigger section 7 consultation under the Act 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.
Proposed Critical Habitat Designation
We are proposing to designate approximately 319 river mi (514 km)
in 11 units as critical habitat in North Carolina, Virginia, and
Maryland for the yellow lance. All of the units were occupied by the
species at the time of listing and contain all of the physical and
biological features that are essential to support life-history
processes of the species. These proposed critical habitat areas,
described below, constitute our current best assessment of areas that
meet the definition of critical habitat for the yellow lance. Table 2
shows the name, land ownership of the riparian areas surrounding the
units, and approximate river miles of the proposed designated units for
the yellow lance. Because all streambeds are navigable waters, the
actual critical habitat units are all owned by the State in which they
are located. The riparian land adjacent to the proposed critical
habitat is 83% private lands, 11% conservation lands and easements, and
6% state lands.
Table 2--Proposed Critical Habitat Units for the Yellow Lance
------------------------------------------------------------------------
Riparian ownership River miles
Critical habitat unit surrounding units (kilometers)
------------------------------------------------------------------------
1. PR1--Patuxent River......... State; Private......... 10 (16)
2. RR1--Rappahannock Subbasin.. Private; Easements..... 44 (71)
3. RR2--Rapidan Subbasin....... Private; Easements..... 9 (14)
4. YR1--South Anna River....... Private; Easements..... 8 (13)
5. JR1--Johns Creek............ Private; George 14 (23)
Washington and
Jefferson National
Forest.
6. CR1--Nottoway Subbasin...... Private; Fort Pickett 41 (66)
Military Reservation;
Easements.
7. TR1--Tar River.............. Private; Easements..... 91 (146)
8. TR2--Sandy/Swift Creek...... Private; State; 31 (50)
Easements.
9. TR3--Fishing Creek Subbasin. Private; State; 37 (60)
Easements.
10. NR1--Swift Creek........... Private; Easements..... 24 (39)
11. NR2--Little River.......... Private; Easements..... 10 (16)
---------------
Total...................... ....................... 319 (514)
------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.
We present brief descriptions of all proposed units, and reasons
why they meet the definition of critical habitat for yellow lance,
below.
Patuxent Population
Unit 1: PR1--Patuxent River
Unit 1 consists of approximately 10 river mi (16.1 km), including 3
mi (4.8 km) of the Patuxent River and 7 mi (11.3 km) of the Hawlings
River, in Montgomery and Howard Counties, Maryland. The riparian land
adjacent to Patuxent River is primarily located in Patuxent River State
Park (90 percent), with some parcels privately owned (10 percent); the
riparian land surrounding the Hawlings River is predominantly
conservation parcels (97 percent) including State, county, and Maryland
National Capital Parks Planning (MD NCPP) park land, and some privately
owned parcels (3 percent).
Special management considerations or protection may be required to
address excess nutrients, sediment, and pollutants that enter the
rivers and serve as indicators of other forms of pollution such as
bacteria and toxins, all of which reduce water quality for the species.
Primary sources of these types of pollution result from urbanization
and include wastewater, stormwater runoff, and fertilizers. Portions of
the upper Patuxent River watershed were listed in 2011 as impaired for
aquatic life and wildlife due to total suspended solids, and in 2014
due to chlorides and sulfates (MDE 2016, unpaginated). There are 146
non-major National Pollutant Discharge Elimination System (NPDES)
discharges and three major (including Maryland City Water Reclamation
Facility (WRF) and Bowie Wastewater Treatment Plant (WWTP)) NPDES
discharges in the management unit. The Patuxent River is also
fragmented by two water supply reservoirs, one with dual use as a
hydroelectric facility. Given the urban stormwater and nonpoint source
pollution identified as contributing to water quality issues in this
unit, special management considerations related to developed areas
including riparian buffer restoration, reduced surface and groundwater
withdrawals, stormwater retrofits, eliminating direct stormwater
discharges, increasing open space in the watershed, and implementing
highest levels of treatment of wastewater practicable will benefit the
habitat in this unit.
Rappahannock Population
Unit 2: RR1--Rappahannock Subbasin
Unit 2 consists of approximately 44 river mi (70.8 km) of
Rappahannock Subbasin, including 1.7 mi (2.7 km) in Hungry Run, 7.9 mi
(12.7 km) in Thumb Run, 5.9 mi (9.5 km) in South Run/Carter Run, 2.7 mi
(4.3 km) in Great Run, and 25.8 mi (41.6 km) in Rappahannock River in
Rappahannock,
[[Page 6863]]
Fauquier, and Culpeper Counties, Virginia. The riparian land adjacent
to this unit is primarily privately owned (72 percent), with some
conservation parcels (28 percent).
Special management considerations or protection may be required to
address excess nutrients, sediment, and pollutants that enter the river
and serve as indicators of other forms of pollution such as bacteria
and toxins, all of which impact water quality for the species. Sources
of these types of pollution include wastewater, agricultural runoff,
stormwater runoff, and septic systems. Approximately 77 miles (123.9
km) of the Rappahannock River watershed are impaired for aquatic life.
Impairment is indicated by low benthic-macroinvertebrate bioassessment
scores, pH and temperature issues, and Escherichia coli (E. coli);
several of these can be attributed to septic systems or nonpoint source
runoff into streams. There are 93 non-major NPDES discharges and 11
major NPDES discharges, including several city and package WWTPs,
within this unit. Special management considerations for riparian buffer
restoration, agricultural BMPs, stormwater retrofits, maintenance of
forested buffers, and implementing highest levels of treatment of
wastewater practicable will benefit the habitat for the species in this
unit.
Unit 3: RR2--Rapidan Subbasin
Unit 3 consists of approximately 9 river mi (14.5 km) of Rapidan
Subbasin, including 1.2 mi (1.9 km) in Marsh Run, 3.1 mi (5.0 km) in
Blue Run, and 4.7 mi (7.6 km) in the Rapidan River in Madison and
Orange Counties, Virginia. The riparian land adjacent to this unit is
privately owned (57 percent) and conservation parcels (43 percent).
Special management considerations or protection may be required to
address excess nutrients, sediment, and pollutants that enter the river
and serve as indicators of other forms of pollution such as bacteria
and toxins, all of which reduce water quality for the species (see
discussion for Unit 2, above). Special management considerations for
riparian buffer restoration, agricultural BMPs, stormwater retrofits,
maintenance of forested buffers, and implementing highest levels of
treatment of wastewater practicable will benefit the habitat for the
species in this unit.
York Population
Unit 4: YR1--South Anna River
Unit 4 consists of approximately 8 river mi (12.9 km) of the South
Anna River in Louisa County, Virginia. The riparian land adjacent to
this unit is primarily privately owned (92 percent), with some
conservation parcels (8 percent).
Special management considerations or protection may be required to
address excess nutrients, sediment, and pollutants that enter the river
and serve as indicators of other forms of pollution such as bacteria
and toxins, all of which impact water quality for the species. Sources
of these types of pollution include wastewater, agricultural runoff,
stormwater runoff, and septic systems. Based on 2012 data, 13 stream
reaches, totaling approximately 44 miles (70.8 km), are impaired for
aquatic life in the Po River and South Anna River watersheds.
Impairment is indicated by low benthic-macroinvertebrate bioassessment
scores, low dissolved oxygen, pH, and E. coli. There are 50 non-major
NPDES discharges in the basin, and one major discharge, the Ashland
WWTP. Special management considerations for riparian buffer
restoration, agricultural BMPs, stormwater retrofits, maintenance of
forested buffers, and implementing highest levels of treatment of
wastewater practicable will benefit the habitat for the species in this
unit.
James Population
Unit 5: JR1--Johns Creek
Unit 5 consists of approximately 14 river mi (22.5 km) of the Johns
Creek in Craig County, Virginia. The riparian land adjacent to this
unit is primarily private, with some federally owned land as part of
George Washington and Jefferson National Forest.
Special management considerations or protection may be required to
address excess nutrients, sediment, and pollutants, which enter the
creek and serve as indicators of other forms of pollution such as
bacteria and toxins, all of which impact water quality for the species.
Sources of these types of pollution are wastewater, agricultural
runoff, and urban stormwater runoff. National Forest lands surround
most of the Johns Creek watershed; protections and management of these
lands will likely enable habitat conditions (water quality, water
quantity/flow, instream substrate, and connectivity) to remain high
into the future (Service 2017, entire). Targeted species restoration in
conjunction with current associated-species restoration efforts in
Johns, Dicks, and Little Oregon Creeks within the Craig Creek Subbasin
will likely improve the yellow lance's resiliency in these areas.
Maintenance of forested buffer conditions is essential to retaining
high-quality instream habitat in this unit.
Chowan Population
Unit 6: CR1--Nottoway Subbasin
Unit 6 consists of approximately 41 river mi (66 km) of Nottoway
Subbasin, including 1.4 mi (2.3 km) in Crooked Creek, 3.3 mi (5.3 km)
in Sturgeon Creek, and 36.3 mi (58.4 km) in the Nottoway River in
Nottoway, Lunenburg, Brunswick, and Dinwiddie Counties, Virginia. The
proposed designation begins upstream of VA49 and ends at its confluence
with Sturgeon Creek. The riparian land adjacent to this unit is
primarily privately owned (64 percent), although Fort Pickett Military
Reservation, which is exempted from this critical habitat designation,
also has frontage on the Nottoway River (33 percent; see Exemptions,
below), and there are some conservation parcels (3 percent).
Special management considerations or protection may be required
within this unit to address a variety of threats. In the past decade,
the Nottoway River suffered from several seasonal drought events, which
not only caused low dissolved oxygen conditions but also decreased food
delivery because of minimal flows. In addition, these conditions led to
increased predation rates on potential host fishes that were
concentrated into low-flow refugia (e.g., pools). Urban stormwater and
nonpoint source pollution have been identified as contributing to water
quality issues in this unit. Additional threats to this system include
oil and gas pipeline projects that propose to cross streams at
locations where the species occurs. Special management considerations
for riparian buffer restoration, reduced surface and groundwater
withdrawals, and stormwater retrofits will benefit the habitat in this
unit. Additional special management considerations or protection may be
required within this unit to address low water levels as a result of
water withdrawals and drought, as well as recommendation of alternate
routes for oil and gas pipelines, or directional boring for those
projects.
Tar Population
Unit 7: TR1--Tar River
Unit 7 consists of approximately 91 river mi (146.5 km) of the Tar
River, including 4.4 mi (7.1 km) in Ruin Creek, 11.9 mi (19.2 km) in
Tabbs Creek, 6.8 mi (10.9 km) in Crooked Creek, and 67.9 mi (109.3 km)
in the Tar River in Granville, Vance, Franklin, and Nash Counties,
North Carolina. The riparian land adjacent to this unit is almost all
[[Page 6864]]
privately owned (98 percent), with a few conservation parcels (2
percent).
Special management considerations or protection may be required
within this unit to address a variety of threats. Excessive amounts of
nitrogen and phosphorus run off the land, or are discharged, into the
waters, causing excessive growth of vegetation and leading to extremely
low levels of dissolved oxygen. Based on 2014 data, seven stream
reaches totaling approximately 38 miles (61.1 km) are impaired in this
basin. Indicators of impairment are low dissolved oxygen and low
benthic-macroinvertebrate assessment scores, and the entire basin is
classified as Nutrient Sensitive Waters (NCDEQ 2016, pp. 115-117).
There are 102 non-major NPDES discharges, including several package
WWTPs and biosolids facilities, and 3 major NPDES discharges (Oxford
WWTP, Louisburg WWTP, and Franklin County WWTP) in this unit; with
expansion of these facilities, or addition of new wastewater
discharges, an additional threat to habitat exists in this unit.
Special management focused on agricultural BMPs, implementing highest
levels of treatment of wastewater practicable, maintenance of forested
buffers, and connection of protected riparian corridors will benefit
habitat for the species in this unit.
Unit 8: TR2--Sandy/Swift Creek
Unit 7 consists of approximately 31 river mi (50 km) of Sandy/Swift
Creek in Vance, Warren, Halifax, Franklin, and Nash Counties, North
Carolina. The riparian land adjacent to this unit is primarily
privately owned (92 percent), with the rest in either conservation
easements (2.5 percent) or State Game Land parcels (4.6 percent).
Special management considerations or protection may be required
within this unit to address a variety of threats. Excessive amounts of
nitrogen and phosphorus run off the land, or are discharged, into the
waters, causing excessive growth of vegetation and leading to extremely
low levels of dissolved oxygen; one stream reach totaling approximately
5 miles (8 km) is impaired in this unit. Special management focused on
agricultural BMPs, maintenance of forested buffers, and connection of
protected riparian corridors will benefit habitat for the species in
this unit.
Unit 9: TR3--Fishing Creek Subbasin
Unit 9 consists of approximately 37 river mi (59.5 km) of Fishing
Creek Subbasin, including 1.6 mi (2.6 km) in Richneck Creek, 8.0 mi
(12.9 km) in Shocco Creek, and 27.4 mi (44 km) in Fishing Creek in
Vance, Warren, Halifax, Franklin, and Nash Counties, North Carolina.
The riparian land adjacent to this unit is primarily in private
ownership (85 percent), with some State Game Land parcels (12 percent)
and conservation easements (3 percent).
Special management considerations or protection may be required
within this unit to address a variety of threats. Excessive amounts of
nitrogen and phosphorus run off the land, or are discharged, into the
waters, causing excessive growth of vegetation and leading to extremely
low levels of dissolved oxygen. Special management focused on
agricultural BMPs, maintenance of forested buffers, and connection of
protected riparian corridors will benefit habitat for the species in
this unit.
Neuse Population
Unit 10: NR1--Swift Creek
Unit 10 consists of approximately 24 river mi (38.6 km) of the
Swift Creek in Wake and Johnston Counties, North Carolina. The riparian
land adjacent to this unit is almost entirely privately owned (99.5
percent), with one conservation parcel (0.5 percent).
Special management considerations or protection may be required
within this unit to address a variety of threats. Large quantities of
nutrients (especially nitrogen) contributed by fertilizers and animal
waste washed from lawns, urban developed areas, and farm fields are
impacting aquatic ecosystems in this unit. There are several permitted
point source discharges of wastewater. Development is also impacting
several areas along Swift Creek.
All of Swift Creek is rated ``impaired'' by the North Carolina
Division of Water Resources. Many factors contribute to this
designation, including low benthic-macroinvertebrate assessment scores,
low pH, poor fish community scores, low dissolved oxygen,
polychlorinated biphenyls, copper, and zinc. Many non-major and one
major (Dempsey Benton Water Treatment Plant) permitted discharges occur
in this unit. Special management related to developed areas, including
using the best available wastewater treatment technologies,
retrofitting stormwater systems, eliminating direct stormwater
discharges, increasing open space in the watershed, and maintaining
connected riparian corridors, will be important to maintain habitat in
this unit.
Unit 11: NR2--Little River
Unit 11 consists of approximately 10 river mi (16.1 km) of the
Little River in Johnston County, North Carolina. The riparian land
adjacent to this unit is almost entirely privately owned (99.5
percent), with one conservation parcel (0.5 percent).
Special management considerations or protection may be required
within this unit to address a variety of threats. Four stream reaches
totaling approximately 17 miles are impaired in the Little River. The
designation of impairment is based primarily on low benthic-
macroinvertebrate assessment scores, low pH, and low dissolved oxygen.
There are 32 non-major and no major NPDES discharges in this unit.
Special management considerations in this unit include retrofitting
stormwater systems, eliminating direct stormwater discharges,
increasing and protecting existing open space, and maintaining
connected riparian corridors.
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7(a) of the Act requires Federal agencies to evaluate their
actions with respect to any species that is proposed or listed as an
endangered or threatened species and with respect to its critical
habitat, if any is designated. Section 7(a)(2) of the Act requires
Federal agencies, including the Service, to ensure that any action they
fund, authorize, or carry out is not likely to jeopardize the continued
existence of any endangered species or threatened species or result in
the destruction or adverse modification of designated critical habitat
of such species. In addition, section 7(a)(4) of the Act requires
Federal agencies to confer with the Service on any agency action which
is likely to jeopardize the continued existence of any species proposed
to be listed under the Act or result in the destruction or adverse
modification of proposed critical habitat.
We published a final regulation with a revised 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
[[Page 6865]]
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
agency actions within the species' habitat that may require conference
or consultation or both include management and any other landscape-
altering activities on Federal lands administered by the Service, Army
National Guard, U.S. Forest Service, and National Park Service;
issuance of section 404 Clean Water Act permits by the U.S. Army Corps
of Engineers; and construction and maintenance of roads or highways by
the Federal Highway Administration. 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 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 formal 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, we have listed a new species
or designated critical habitat that may be affected by the Federal
action, or the action has been modified in a manner that affects the
species or critical habitat in a way not considered in the previous
consultation. In such situations, Federal agencies sometimes may need
to request reinitiation of consultation with us, but the regulations
also specify some exceptions to the requirement to reinitiate
consultation on specific land management plans after subsequently
listing a new species or designating new critical habitat. See the
regulations for a description of those exceptions.
Application of the ``Adverse Modification'' Standard
The key factor related to the destruction or adverse modification
determination is whether implementation of the proposed Federal action
directly or indirectly alters the designated critical habitat in a way
that appreciably diminishes the value of the critical habitat as a
whole for the conservation of the listed species. As discussed above,
the role of critical habitat is to support physical or biological
features essential to the conservation of a listed species and provide
for the conservation of the species.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe, in any proposed or final regulation that designates critical
habitat, activities involving a Federal action that may violate 7(a)(2)
of the Act by destroying or adversely modifying such designation, or
that may be affected by such designation.
Activities that the Services may, during a consultation under
section 7(a)(2) of the Act, find are likely to destroy or adversely
modify critical habitat include, but are not limited to:
(1) Actions that would alter the minimum flow or the existing flow
regime. Such activities could include, but are not limited to,
impoundment, channelization, water diversion, water withdrawal, and
hydropower generation. These activities could eliminate or reduce the
habitat necessary for the growth and reproduction of the yellow lance
and/or its fish host by decreasing or altering flows to levels that
would adversely affect their ability to complete their life cycles.
(2) Actions that would significantly alter water chemistry or
temperature. Such activities could include, but are not limited to,
release of chemicals (including pharmaceuticals, metals, and salts),
biological pollutants, or heated effluents into the surface water or
connected groundwater at a point source or by dispersed release (non-
point source). These activities could alter water conditions to levels
that are beyond the tolerances of the yellow lance and/or its fish host
and result in direct or cumulative adverse effects to these individuals
and their life cycles.
(3) Actions that would significantly increase sediment deposition
within the stream channel. Such activities could include, but are not
limited to, excessive sedimentation from livestock grazing, road
construction, channel alteration, timber harvest, off-road vehicle use,
and other watershed and floodplain disturbances. These activities could
eliminate or reduce the habitat necessary for the growth and
reproduction of the mussel and/or its fish host by increasing the
sediment deposition to levels that would adversely affect their ability
to complete their life cycles.
(4) Actions that would significantly increase the filamentous algal
community within the stream channel. Such activities could include, but
are not limited to, release of nutrients into the surface water or
connected groundwater at a point source or by dispersed release (non-
point source). These activities can result in excessive filamentous
algae filling streams and reducing habitat for the yellow lance and/or
its fish host, degrading water quality during algal decay, and
decreasing oxygen levels at night from algal respiration to levels
below the tolerances of the mussel and/or its fish host. Algae can also
directly compete with mussel offspring by covering the sediment that
prevents the glochidia from settling into the sediment.
(5) Actions that would significantly alter channel morphology or
geometry. Such activities could include, but are not limited to,
channelization, impoundment, road and bridge construction, mining,
dredging, and destruction of riparian vegetation. These activities may
lead to changes in water flows and levels that would degrade or
eliminate the mussel, its fish host, and/or their habitats. These
actions can also
[[Page 6866]]
lead to increased sedimentation and degradation in water quality to
levels that are beyond the tolerances of the mussel and/or its fish
host.
(6) Actions that result in the introduction, spread, or
augmentation of nonnative aquatic species in occupied stream segments,
or in stream segments that are hydrologically connected to occupied
stream segments, even if those segments are occasionally intermittent,
or introduction of other species that compete with or prey on the
yellow lance. Possible actions could include, but are not limited to,
stocking of nonnative fishes, stocking of sport fish, or other related
actions. These activities can introduce parasites or disease to fish
hosts; result in direct predation; or affect the growth, reproduction,
and survival of yellow lance.
Exemptions
Application of Section 4(a)(3) of the Act
The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a)
required each military installation that includes land and water
suitable for the conservation and management of natural resources to
complete an integrated natural resources management plan (INRMP) by
November 17, 2001. An INRMP integrates implementation of the military
mission of the installation with stewardship of the natural resources
found on the base. Each INRMP includes:
(1) An assessment of the ecological needs on the installation,
including the need to provide for the conservation of listed species;
(2) A statement of goals and priorities;
(3) A detailed description of management actions to be implemented
to provide for these ecological needs; and
(4) A monitoring and adaptive management plan.
Among other things, each INRMP must, to the extent appropriate and
applicable, provide for fish and wildlife management; fish and wildlife
habitat enhancement or modification; wetland protection, enhancement,
and restoration where necessary to support fish and wildlife; and
enforcement of applicable natural resource laws.
The National Defense Authorization Act for Fiscal Year 2004 (Pub.
L. 108-136) amended the Act to limit areas eligible for designation as
critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16
U.S.C. 1533(a)(3)(B)(i)) provides that: ``The Secretary shall not
designate as critical habitat any lands or other geographical areas
owned or controlled by the Department of Defense, or designated for its
use, that are subject to an 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.''
We consult with the military on the development and implementation
of INRMPs for installations with listed species. We analyzed INRMPs
developed by military installations located within the range of the
proposed critical habitat designation for yellow lance to determine if
they meet the criteria for exemption from critical habitat under
section 4(a)(3) of the Act.
We have identified one area within the proposed critical habitat
designation that consists of Department of Defense lands with a
completed, Service-approved INRMP. The Army National Guard--Maneuver
Training Center Fort Pickett (Fort Pickett) is located on 41,000 acres
in three counties in southeastern Virginia: Nottoway, Brunswick, and
Dinwiddie. Fort Pickett is on federally owned land and is managed by
the Virginia Army National Guard and is subject to all federal laws and
regulations. The Fort Pickett INRMP covers fiscal years 2017-2021, and
serves as the principal management plan governing all natural resource
activities on the installation. Among the goals and objectives listed
in the INRMP is habitat management for rare, threatened, and endangered
species, and the yellow lance is included in this plan. Management
actions and elements that will benefit the yellow lance and its habitat
include managing soil erosion and sedimentation; maintaining and
improving riparian, forest, and stream habitats; enforcing stream and
wetland protection zones; improving water quality; and conducting
public outreach and education.
Fourteen miles (22.5 km) of Unit 6 (CR1--Nottoway Subbasin) are
located within the area covered by this INRMP. Based on the above
considerations, and in accordance with section 4(a)(3)(B)(i) of the
Act, we have determined that the identified streams are subject to the
INRMP and that conservation efforts identified in the INRMP will
provide a benefit to the yellow lance. Therefore, streams within this
installation are exempt from critical habitat designation under section
4(a)(3) of the Act. We are not including approximately 14 river miles
(22.5 river km) of habitat in this proposed critical habitat
designation because of this exemption.
Consideration of Impacts Under Section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that the Secretary shall
designate and make revisions to critical habitat on the basis of the
best available scientific data after taking into consideration the
economic impact, national security impact, and any other relevant
impact of specifying any particular area as critical habitat. The
Secretary may exclude an area from critical habitat 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 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 factors to use and how much weight to give
to any factor.
As discussed below, we are not proposing to exclude any areas from
critical habitat. However, the final decision on whether to exclude any
areas will be based on the best scientific data available at the time
of the final designation, including information obtained during the
comment period and information about the economic impact of
designation.
Consideration of Economic Impacts
Section 4(b)(2) of the Act and its implementing regulations require
that we consider the economic impact that may result from a designation
of critical habitat. To assess the probable economic impacts of a
designation, we must first evaluate specific land uses or activities
and projects that may occur in the area of the critical habitat. We
then must evaluate whether a specific critical habitat designation may
restrict or modify specific land uses or activities for the benefit of
the species and its habitat within the areas proposed. We then identify
which conservation efforts may be the result of the species being
listed under the Act versus those attributed solely to the designation
of critical habitat for this particular species. The probable economic
impact of a proposed critical habitat designation is analyzed by
comparing scenarios both ``with critical habitat'' and ``without
critical habitat.'' The ``without critical habitat'' scenario
represents the baseline for the analysis, which includes the existing
regulatory and socio-economic burden imposed on landowners, managers,
or other resource users potentially affected by the designation of
critical habitat (e.g.,
[[Page 6867]]
under the Federal listing as well as other Federal, State, and local
regulations). The baseline, therefore, represents the costs of all
efforts attributable to the listing of the species under the Act (i.e.,
conservation of the species and its habitat incurred regardless of
whether critical habitat is designated). The ``with critical habitat''
scenario describes the incremental impacts associated specifically with
the designation of critical habitat for the species. The incremental
conservation efforts and associated impacts would not be expected
without the designation of critical habitat for the species. In other
words, the incremental costs are those attributable solely to the
designation of critical habitat, above and beyond the baseline costs.
These are the costs we use when evaluating the benefits of inclusion
and exclusion of particular areas from the final designation of
critical habitat should we choose to conduct a discretionary 4(b)(2)
exclusion analysis.
For this proposed designation, we developed an incremental effects
memorandum (IEM) considering the probable incremental economic impacts
that may result from this proposed designation of critical habitat. The
information contained in our IEM was then used to develop a screening
analysis of the probable effects of the designation of critical habitat
for the yellow lance (IEc 2018, entire). The purpose of the screening
analysis is to filter out the geographic areas in which the critical
habitat designation is unlikely to result in probable incremental
economic impacts. In particular, the screening analysis considers
baseline costs (i.e., absent critical habitat designation) and includes
probable economic impacts where land and water use may be subject to
conservation plans, land management plans, best management practices,
or regulations that protect the habitat area as a result of the Federal
listing status of the species. The screening analysis filters out
particular areas of critical habitat that are already subject to such
protections and are, therefore, unlikely to incur incremental economic
impacts. Ultimately, the screening analysis allows us to focus our
analysis the specific areas or sectors that may incur probable
incremental economic impacts as a result of the designation. The
screening analysis also assesses whether units are unoccupied by the
species and may require additional management or conservation efforts
as a result of the critical habitat designation for the species which
may incur incremental economic impacts. This screening analysis,
combined with the information contained in our IEM, constitutes our
draft economic analysis of the proposed critical habitat designation
for the yellow lance (DEA), which is summarized in the narrative below.
Executive Orders (E.O.s) 12866 and 13563 direct Federal agencies to
assess the costs and benefits of available regulatory alternatives in
quantitative (to the extent feasible) and qualitative terms. Consistent
with the E.O. regulatory analysis requirements, our effects analysis
under the Act may take into consideration impacts to both directly and
indirectly affected entities, where practicable and reasonable. If
sufficient data are available, we assess to the extent practicable the
probable impacts to both directly and indirectly affected entities. As
part of our screening analysis, we considered the types of economic
activities that are likely to occur within the areas likely affected by
the critical habitat designation. In our evaluation of the probable
incremental economic impacts that may result from the proposed
designation of critical habitat for the yellow lance, first we
identified, in the IEM dated August 2, 2018, probable incremental
economic impacts associated with the following categories of
activities: (1) Federal lands management (U.S. Forest Service,
Department of Defense); (2) agriculture; (3) forest management/
silviculture/timber; (4) development; (5) recreation; (6) restoration
activities; and (7) transportation. Additionally, we considered whether
the 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. In areas where the yellow lance is present, Federal
agencies already are required to consult with the Service under section
7 of the Act on activities they fund, permit, or implement that may
affect the species. If we finalize this proposed critical habitat
designation, consultations to avoid the destruction or adverse
modification of critical habitat would be incorporated into the
existing consultation process.
In our IEM, we attempted to clarify the distinction between the
effects that will result from the species being listed and those
attributable to the critical habitat designation (i.e., difference
between the jeopardy and adverse modification standards) for the yellow
lance. We used the following to 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 or
harassment to constitute jeopardy to the yellow lance 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
proposed designation.
The proposed critical habitat designation for the yellow lance
totals approximately 319 river mi (514 km) in 11 units as critical
habitat in North Carolina, Virginia, and Maryland, all of which is
occupied by the species. In these areas, any actions that may affect
the species would also affect proposed critical habitat, and it is
unlikely that any additional conservation efforts would be recommended
to address the adverse modification standard over and above those
recommended as necessary to avoid jeopardizing the continued existence
of the yellow lance. Therefore, even though some analysis of the
impacts of the action of critical habitat may be necessary, and this
additional analysis will require costs in time and resources by both
the Federal action agency and the Service, it is believed that, in most
circumstances, these costs would predominantly be administrative in
nature and would not be significant. We do not expect any additional
consultations resulting from the designation of critical habitat. The
total annual incremental costs of critical habitat designation are
anticipated to be the additional resources expended in a maximum of 102
section 7 consultations annually at a cost of less than $240,000 per
year. Accordingly, we believe that, in most circumstances, these costs
would not reach the threshold of ``significant'' under E.O. 12866.
As we stated earlier, we are soliciting data and comments from the
public on the DEA, as well as all aspects of the proposed rule and our
required determinations. See ADDRESSES, above, for information on where
to send comments.
Exclusions
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
[[Page 6868]]
habitat. As discussed above, we prepared an analysis of the probable
economic impacts of the proposed critical habitat designation and
related factors. Based on this analysis, the Secretary does not propose
to exercise his discretion to exclude any areas from the final
designation based on economic impacts. However, during the development
of a final designation, we will consider any additional economic impact
information we receive during the public comment period, which may
result in areas being excluded from the final critical habitat
designation under section 4(b)(2) of the Act and our implementing
regulations at 50 CFR 424.19.
Exclusions Based on National Security Impacts or Homeland Security
Impacts
Under section 4(b)(2) of the Act, we also consider whether there
are lands owned or managed by the Department of Defense where a
national security impact might exist. In preparing this proposal, we
have determined that, other than the land exempted under section
4(a)(3)(B)(i) of the Act based upon the existence of an approved INRMP
(see Exemptions, above), the lands within the proposed designation of
critical habitat for the yellow lance are not owned or managed by the
Department of Defense or Department of Homeland Security, and,
therefore, we anticipate no impact on national security. Consequently,
the Secretary does not propose to exercise his discretion to exclude
any areas from the final 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. We consider a number of factors including whether there are
permitted conservation plans covering the species in the area such as
habitat conservation plans (HCPs), safe harbor agreements, or candidate
conservation agreements with assurances, 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 the existence of tribal conservation plans and
partnerships, 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 proposal, we have determined that there are
currently no HCPs or other management plans for yellow lance, and the
proposed designation does not include any tribal lands or trust
resources. We anticipate no impact on tribal lands, partnerships, or
HCPs from this proposed critical habitat designation.
During the development of a final designation, we will consider any
information currently available or received during the public comment
period regarding the economic, national security, or other relevant
impacts of the proposed designation and will determine whether any
specific areas should be excluded from the final critical habitat
designation under authority of section 4(b)(2) and our implementing
regulations at 50 CFR 424.19.
Required Determinations
Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) will review all significant rules. The Office
of Information and Regulatory Affairs has determined that this rule is
not significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while
calling for improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The executive order directs agencies to consider regulatory approaches
that reduce burdens and maintain flexibility and freedom of choice for
the public where these approaches are relevant, feasible, and
consistent with regulatory objectives. 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.
Executive Order 13771
This proposed rule is not an E.O. 13771 (``Reducing Regulation and
Controlling Regulatory Costs'') (82 FR 9339, February 3, 2017)
regulatory action because this proposed rule is not significant under
E.O. 12866.
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 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.
The Service's current understanding of the requirements under the
RFA, as amended, and following recent court decisions, is that Federal
agencies are only required to evaluate the potential incremental
impacts of rulemaking on those entities directly regulated by the
rulemaking itself, and therefore, not required 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
[[Page 6869]]
Federal action agencies are directly subject to the specific regulatory
requirement (avoiding destruction and adverse modification) imposed by
critical habitat designation. Consequently, it is our position that
only Federal action agencies will be directly regulated by this
designation. There is no requirement under RFA to evaluate the
potential impacts to entities not directly regulated. Moreover, Federal
agencies are not small entities. Therefore, because no small entities
are directly regulated by this rulemaking, the Service certifies that,
if made final as proposed, this proposed critical habitat designation
will not have a significant economic impact on a substantial number of
small entities.
In summary, we have considered whether the proposed designation
would result in a significant economic impact on a substantial number
of small entities. For the above reasons and based on currently
available information, we certify that, if made final as proposed, this
proposed critical habitat designation will not have a significant
economic impact on a substantial number of small business entities.
Therefore, an initial regulatory flexibility analysis is not required.
Energy Supply, Distribution, or Use--Executive Order 13211
Executive Order 13211 (Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use) requires
agencies to prepare Statements of Energy Effects when undertaking
certain actions. In our economic analysis, we did not find that the
designation of this proposed critical habitat would significantly
affect energy supplies, distribution, or use. 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 findings:
(1) This proposed rule would not produce a Federal mandate. In
general, a Federal mandate is a provision in legislation, statute, or
regulation that would impose an enforceable duty upon State, local, or
tribal governments, or the private sector, and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or tribal governments'' with two
exceptions. It excludes ``a condition of Federal assistance.'' It also
excludes ``a duty arising from participation in a voluntary Federal
program,'' unless the regulation ``relates to a then-existing Federal
program under which $500,000,000 or more is provided annually to State,
local, and tribal governments under entitlement authority,'' if the
provision would ``increase the stringency of conditions of assistance''
or ``place caps upon, or otherwise decrease, the Federal Government's
responsibility to provide funding,'' and the State, local, or tribal
governments ``lack authority'' to adjust accordingly. At the time of
enactment, these entitlement programs were: Medicaid; Aid to Families
with Dependent Children work programs; Child Nutrition; Food Stamps;
Social Services Block Grants; Vocational Rehabilitation State Grants;
Foster Care, Adoption Assistance, and Independent Living; Family
Support Welfare Services; and Child Support Enforcement. ``Federal
private sector mandate'' includes a regulation that ``would impose an
enforceable duty upon the private sector, except (i) a condition of
Federal assistance or (ii) a duty arising from participation in a
voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal Government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions 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 would significantly or
uniquely affect small governments because the lands being proposed for
critical habitat designation are owned by the States of North Carolina,
Virginia, and Maryland. These government entities do not fit the
definition of ``small governmental jurisdiction.'' 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 yellow lance in a takings implications assessment. The Act
does not authorize the Service to regulate private actions on private
lands or confiscate private property as a result of critical habitat
designation. Designation of critical habitat does not affect land
ownership, or establish any closures, or restrictions on use of or
access to the designated areas. Furthermore, the designation of
critical habitat does not affect landowner actions that do not require
Federal funding or permits, nor does it preclude development of habitat
conservation programs or issuance of incidental take permits to permit
actions that do require Federal funding or permits to go forward.
However, Federal agencies are prohibited from carrying out, funding, or
authorizing actions that would destroy or adversely modify critical
habitat. A takings implications assessment has been completed and
concludes that, if adopted, this designation of critical habitat for
yellow lance does not pose significant takings implications for lands
within or affected by the designation.
Federalism--Executive Order 13132
In accordance with E.O. 13132 (Federalism), this proposed rule does
not have significant Federalism effects. A federalism summary impact
statement is not required. In keeping with Department of the Interior
and Department of Commerce policy, we requested information from, and
coordinated development of this proposed critical habitat designation
with, appropriate State resource agencies in Maryland, Virginia, and
North Carolina. From a federalism perspective, the designation of
critical habitat directly affects only the responsibilities of Federal
agencies. The Act imposes no other duties with respect to critical
habitat, either for States and local governments, or for anyone else.
As a result, the 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
[[Page 6870]]
conservation of the species are more clearly defined, and the physical
or biological features of the habitat necessary to 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 these local governments in long-range planning (because
these local governments no longer have to wait for case-by-case section
7 consultations to occur).
Where State and local governments require approval or authorization
from a Federal agency for actions that may affect critical habitat,
consultation under section 7(a)(2) of the Act would be required. While
non-Federal entities that receive Federal funding, assistance, or
permits, or that otherwise require approval or authorization from a
Federal agency for an action, may be indirectly impacted by the
designation of critical habitat, the legally binding duty to avoid
destruction or adverse modification of critical habitat rests squarely
on the Federal agency.
Civil Justice Reform--Executive Order 12988
In accordance with Executive Order 12988 (Civil Justice Reform),
the Office of the Solicitor has determined that the rule does not
unduly burden the judicial system and that it meets the requirements of
sections 3(a) and 3(b)(2) of the Order. We have proposed designating
critical habitat in accordance with the provisions of the Act. To
assist the public in understanding the habitat needs of the species,
this proposed rule identifies the elements of physical or biological
features essential to the conservation of the species. The proposed
areas of designated critical habitat are presented on maps, and the
proposed rule provides several options for the interested public to
obtain more detailed location information, if desired.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This rule does not contain any new collections of information that
require approval by the Office of Management and Budget (OMB) under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). 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.
National Environmental Policy Act (NEPA, 42 U.S.C. 4321 et seq.)
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)).
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. As discussed above (see Exclusions),
we have determined that no tribal lands would be affected by this
designation.
Clarity of the Rule
We are required by Executive Orders 12866 and 12988 and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in ADDRESSES. To better help us
revise the rule, your comments should be as specific as possible. For
example, you should tell us the numbers of the sections or paragraphs
that are unclearly written, which sections or sentences are too long,
the sections where you feel lists or tables would be useful, etc.
Authors
The primary authors of this proposed rule are the staff members of
the U.S. Fish and Wildlife Service Species Assessment Team and Raleigh
Ecological Services Field Office.
References Cited
A complete list of references cited in this proposed rule is
available on the internet at http://www.regulations.gov and upon
request from the Raleigh Ecological Services Field Office (see FOR
FURTHER INFORMATION CONTACT).
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Proposed Regulation Promulgation
Accordingly, we propose to amend part 17, subchapter B of chapter
I, title 50 of the Code of Federal Regulations, as set forth below:
PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245,
unless otherwise noted.
0
2. Amend Sec. 17.11(h) by revising the entry for ``Lance, yellow''
under CLAMS in the List of Endangered and Threatened Wildlife to read
as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
----------------------------------------------------------------------------------------------------------------
Listing citations
Common name Scientific name Where listed Status and applicable rules
----------------------------------------------------------------------------------------------------------------
* * * * * * *
CLAMS
[[Page 6871]]
* * * * * * *
Lance, yellow..................... Elliptio lanceolata.. Wherever found....... T 83 FR 14189, 4/3/
2018;
50 CFR 17.95(f).\CH\
* * * * * * *
----------------------------------------------------------------------------------------------------------------
0
3. Amend Sec. 17.95(f) by adding, immediately following the entry for
``Rabbitsfoot (Quadrula cylindrica cylindrica),'' an entry for ``Yellow
Lance (Elliptio lanceolata)'' to read as follows:
Sec. 17.95 Critical habitat--fish and wildlife.
* * * * *
(f) Clams and Snails.
* * * * *
Yellow Lance (Elliptio lanceolata)
(1) Critical habitat units are depicted for Franklin, Granville,
Halifax, Johnston, Nash, Vance, Wake, and Warren Counties, North
Carolina; Brunswick, Craig, Culpeper, Dinwiddie, Fauquier, Louisa,
Lunenburg, Madison, Nottoway, Orange, and Rappahannock Counties,
Virginia; and Howard and Montgomery Counties, Maryland, on the maps in
this entry.
(2) Within these areas, the physical or biological features
essential to the conservation of yellow lance consist of the following
components:
(i) Suitable substrates and connected instream habitats,
characterized by geomorphically stable stream channels and banks (i.e.,
channels that maintain lateral dimensions, longitudinal profiles, and
sinuosity patterns over time without an aggrading or degrading bed
elevation) with habitats that support a diversity of freshwater mussel
and native fish (such as stable riffle-run-pool habitats that provide
flow refuges consisting of silt-free gravel and coarse sand
substrates).
(ii) Adequate flows, or a hydrologic flow regime (which includes
the severity, frequency, duration, and seasonality of discharge over
time), necessary to maintain benthic habitats where the species is
found and to maintain connectivity of streams with the floodplain,
allowing the exchange of nutrients and sediment for maintenance of the
mussel's and fish host's habitat, food availability, spawning habitat
for native fishes, and the ability for newly transformed juveniles to
settle and become established in their habitats.
(iii) Water and sediment quality (including, but not limited to,
conductivity, hardness, turbidity, temperature, pH, ammonia, heavy
metals, and chemical constituents) necessary to sustain natural
physiological processes for normal behavior, growth, and viability of
all life stages.
(iv) The presence and abundance of fish hosts necessary for
recruitment of the yellow lance.
(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 units. Data layers defining map units were
created by overlaying Natural Heritage Element Occurrence data and U.S.
Geological Survey (USGS) hydrologic data for stream reaches. The
hydrologic data used in the critical habitat maps were extracted from
the USGS 1:1M scale nationwide hydrologic layer (https://nationalmap.gov/small_scale/mld/1nethyd.html) with a projection of
EPSG:4269-NAD83 Geographic. The North Carolina, Virginia, and Maryland
Natural Heritage program species presence data were used to select
specific stream segments for inclusion in the critical habitat layer.
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 http://www.regulations.gov under Docket No.
FWS-R4-ES-2018-0094 and at the Raleigh Ecological Services Field
Office. 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.
[[Page 6872]]
(5) Note: Index map follows:
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[GRAPHIC] [TIFF OMITTED] TP06FE20.010
[[Page 6873]]
(6) Unit 1: PRI--Patuxent River, Montgomery and Howard Counties,
Maryland.
(i) This unit consists of approximately 10 river miles (16.1
kilometers (km)) of occupied habitat, including 3 mi (4.8 km) of the
Patuxent River and 7 mi (11.3 km) of the Hawlings River. Unit 1
includes stream habitat up to bank full height.
(ii) Map of Unit 1 follows:
[GRAPHIC] [TIFF OMITTED] TP06FE20.011
[[Page 6874]]
(7) Unit 2: RR1--Rappahannock Subbasin, Rappahannock, Fauquier, and
Culpeper Counties, Virginia.
(i) This unit consists of approximately 44 river miles (70.8 km) of
occupied habitat in the Rappahannock Subbasin, including 1.7 miles (2.7
km) in Hungry Run, 7.9 miles (12.7 km) in Thumb Run, 5.9 miles (9.5 km)
in South Run/Carter Run, 2.7 miles (4.3 km) in Great Run, and 25.8
miles (41.6 km) in Rappahannock River. Unit 2 includes stream habitat
up to bank full height.
(ii) Map of Unit 2 follows:
[GRAPHIC] [TIFF OMITTED] TP06FE20.012
[[Page 6875]]
(8) Unit 3: RR2--Rappahannock Subbasin, Madison and Orange
Counties, Virginia.(i) This unit consists of 9 river miles (14.5 km) of
occupied habitat in the Rapidan Subbasin, including 1.2 miles (1.9 km)
in Marsh Run, 3.1 miles (5.0 km) in Blue Run, and 4.7 miles (7.6 km) in
the Raspidan River. Unit 3 includes stream habitat up to bank full
height.
(ii) Map of Unit 3 follows:
[GRAPHIC] [TIFF OMITTED] TP06FE20.013
[[Page 6876]]
(9) Unit 4: YR1--South Anna River, Louisa County, Virginia.
(i) This unit consists of approximately 8 river miles (12.9 km) of
occupied habitat in the South Anna River. Unit 4 includes stream
habitat up to bank full height.
(ii) Map of Unit 4 follows:
[GRAPHIC] [TIFF OMITTED] TP06FE20.014
[[Page 6877]]
(10) Unit 5: JR1--Johns Creek, Craig County, Virginia.
(i) This unit consists of approximately 14 river miles (22.5 km) of
occupied habitat in the Johns Creek. Unit 5 includes stream habitat up
to bank full height.
(ii) Map of Unit 5 follows:
[GRAPHIC] [TIFF OMITTED] TP06FE20.015
[[Page 6878]]
(11) Unit 6: CR1--Nottoway Subbasin, Nottoway, Lunenburg,
Brunswick, and Dinwiddie Counties, Virginia
(i) This unit consists of approximately 41 river miles (66 km) of
occupied habitat in the Nottoway Subbasin, including 1.4 miles (2.3 km)
in Crooked Creek, 3.3 miles (5.3 km) in Sturgeon Creek, and 36.3 miles
(58.4 km) in the Nottoway River. Unit 6 includes stream habitat up to
bank full height.
(ii) Map of Unit 6 follows:
[GRAPHIC] [TIFF OMITTED] TP06FE20.016
[[Page 6879]]
(12) Unit 7: TR1--Tar River, Granville, Vance, Franklin, and Nash
Counties, North Carolina.
(i) This unit consists of approximately 91 river miles (146.5 km)
of occupied habitat in the Tar River, including 4.4 miles (7.1 km) in
Ruin Creek, 11.9 miles (19.2 km) in Tabbs Creek, 6.8 miles (10.9 km) in
Crooked Creek, and 67.9 miles (109.3 km) in the Tar River. Unit 7
includes stream habitat up to bank full height.
(ii) Map of Unit 7 follows:
[GRAPHIC] [TIFF OMITTED] TP06FE20.017
[[Page 6880]]
(13) Unit 8: TR2--Sandy/Swift Creek, Vance, Warren, Halifax,
Franklin, and Nash Counties, North Carolina.
(i) This unit consists of 31 river miles (50 km) of occupied
habitat in the Sandy and Swift Creeks. Unit 8 includes stream habitat
up to bank full height.
(ii) Map of Unit 8 follows:
[GRAPHIC] [TIFF OMITTED] TP06FE20.018
[[Page 6881]]
(14) Unit 9: TR3--Fishing Creek Subbasin, Vance, Warren, Halifax,
Franklin, and Nash Counties, North Carolina.
(i) This unit consists of approximately 37 river miles (59.5 km) of
occupied habitat in the Fishing Creek Subbasin, including 1.6 miles
(2.6 km) in Richneck Creek, 8.0 miles (12.9 km) in Shocco Creek, and
27.4 miles (44 km) in Fishing Creek. Unit 9 includes stream habitat up
to bank full height.
(ii) Map of Unit 9 follows:
[GRAPHIC] [TIFF OMITTED] TP06FE20.019
[[Page 6882]]
(15) Unit 10: NR1--Swift Creek, Wake and Johnston Counties, North
Carolina.
(i) This unit consists of approximately 24 river miles (38.6 km) of
occupied habitat in the Swift Creek. Unit 10 includes stream habitat up
to bank full height.
(ii) Map of Unit 10 follows:
[GRAPHIC] [TIFF OMITTED] TP06FE20.020
[[Page 6883]]
(16) Unit 11: NR2--Little River, Johnston County, North Carolina.
(i) This unit consists of approximately 10 river miles (16.1 km) of
occupied habitat in the Little River. Unit 11 includes stream habitat
up to bank full height.
(ii) Map of Unit 11 follows:
[GRAPHIC] [TIFF OMITTED] TP06FE20.021
* * * * *
Dated: November 26, 2019.
Margaret E. Everson,
Principal Deputy Director, U.S. Fish and Wildlife Service, Exercising
the Authority of the Director, U.S. Fish and Wildlife Service.
[FR Doc. 2020-02294 Filed 2-5-20; 8:45 am]
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