[Federal Register Volume 86, Number 66 (Thursday, April 8, 2021)]
[Rules and Regulations]
[Pages 18189-18215]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-06736]
[[Page 18189]]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R4-ES-2018-0094; FF09E21000 FXES11110900000 212]
RIN 1018-BD08
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for Yellow Lance
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: We, the U.S. Fish and Wildlife Service (Service), 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)) fall within 11
units of critical habitat in 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. This rule extends the Act's protections
to the yellow lance's designated critical habitat.
DATES: This rule is effective May 10, 2021.
ADDRESSES: This final rule is available on the internet at http://www.regulations.gov. Comments and materials we received, as well as
some supporting documentation we used in preparing this rule, are
available for public inspection at http://www.regulations.gov.
The coordinates or plot points or both from which the maps are
generated are included in the administrative record for this critical
habitat designation and are available at http://www.regulations.gov at
Docket No. FWS-R4-ES-2018-0094, or from the Raleigh Ecological Services
Field Office (https://www.fws.gov/raleigh) (see FOR FURTHER INFORMATION
CONTACT). Any additional tools or supporting information developed will
also be available at the Fish and Wildlife Service website and Field
Office identified below and 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. Under section 4(a)(3) of the
Endangered Species Act of 1973 (Act), as amended, if we determine that
a species is an endangered or threatened species, we must designate
critical habitat to the maximum extent prudent and determinable. We
published a final rule to list the yellow lance as a threatened species
on April 3, 2018 (83 FR 14189). Designations of critical habitat can be
completed only by issuing a rule.
Basis for our action. Section 3(5)(A) of the Act defines critical
habitat as (i) the specific areas within the geographical area occupied
by the species, at the time it is listed, on which are found those
physical or biological features (I) essential to the conservation of
the species and (II) which may require special management
considerations or protections; and (ii) specific areas outside the
geographical area occupied by the species at the time it is listed,
upon a determination by the Secretary that such areas are essential for
the conservation of the species. Section 4(b)(2) of the Act states that
the Secretary must make the designation on the basis of the best
scientific data available and after taking into consideration the
economic impact, the impact on national security, and any other
relevant impacts of specifying any particular area as critical habitat.
The critical habitat we are designating in this rule, consisting of 11
units comprising approximately 319 miles (514 kilometers) of streams
and rivers, constitutes our current best assessment of the areas that
meet the definition of critical habitat for the yellow lance.
Economic analysis. In accordance with section 4(b)(2) of the Act,
we prepared an economic analysis of the impacts of designating critical
habitat for the yellow lance. We published the announcement of, and
solicited public comments on, the draft economic analysis (DEA; 85 FR
6856, February 6, 2020). Because we received no comments or new
information on the DEA, we adopted the DEA as a final version.
Public comments. We considered all comments and information we
received from the public during the comment period on the proposed
designation of critical habitat for the yellow lance and the associated
DEA (85 FR 6856; February 6, 2020).
Supporting Documents
As part of the process of listing the yellow lance, a species
status assessment (SSA) team prepared an SSA report for the species.
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 final designation. The SSA
report and other materials relating to this rule 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.
Previous Federal Actions
On April 20, 2010, we were petitioned to list 404 aquatic species
in the southeastern United States, including yellow lance. In response
to the petition, we completed a 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). On February 6, 2020, we published a proposed
rule to designate critical habitat for the yellow lance (85 FR 6856).
Please refer to the April 5, 2017, proposed listing rule for a
discussion of earlier Federal actions regarding the yellow lance.
Summary of Comments and Recommendations
On February 6, 2020, we published in the Federal Register (85 FR
6856) a proposed rule to designate critical habitat for the yellow
lance and to make available the associated DEA; the public comment
period for that proposed rule was open for 60 days, ending April 6,
2020. During the open comment period, we received 23 public comments on
the proposed rule; a majority of the comments supported the
designation, none opposed the designation, and
[[Page 18190]]
some included suggestions on how we could refine or improve the
designation. All substantive information provided to us during the
comment period has been incorporated directly into this final rule or
is addressed below.
(1) Comment: Two commenters recommended adding to the critical
habitat designation. One commenter suggested that whole watersheds be
considered for designation, indicating that protecting entire
watersheds would improve genetic diversity and resiliency of yellow
lance populations. Another commenter recommended including vegetative
buffers in the designation, citing a study on the functions and
recommended widths of riparian buffer zones: For erosion and sediment
control, a width of 30 to 98 feet is recommended, and in the case of
absorbing biocontaminants, nutrients, and pesticides, the width ranges
are 30 or more feet, 49 to 164 feet, and 49 to 328 feet, respectively.
Our Response: Designation of an entire watershed, which we
interpret to mean all streams and waterbodies within a watershed, would
include areas that are not occupied by yellow lance, and areas that are
not suitable habitat for the yellow lance. The Service has determined
that unoccupied habitat is not essential for the conservation of the
species. Further, many areas within a watershed are not suitable
habitat, and therefore do not contain one or more of the physical or
biological features essential to yellow lance conservation. In other
words, these areas do not meet the definition of critical habitat.
Similarly, while the Service recognizes in the SSA report the important
contribution of riparian buffers to yellow lance habitat, these land
areas surrounding streams do not meet the definition of critical
habitat in that they are not specific areas occupied by the species
that have one or more of the physical and biological features essential
to yellow lance conservation. As an obligate aquatic species,
freshwater mussels such as the yellow lance cannot survive in
terrestrial riparian areas. Therefore, such areas are not considered in
the designation of critical habitat.
(2) Comment: One commenter recommended that exclusion of human-made
structures should be construed as narrowly as possible and should not
allow the exclusion of undeveloped land because that land may share a
parcel with otherwise-excluded pavement or human structures.
Our Response: The exclusion of human-made structures from the
boundaries of the designated critical habitat was intended to apply
only to the structures included in the Geographic Information Systems
(GIS) shapefiles of the critical habitat and not to undeveloped land.
(3) Comment: One commenter suggested that the Service include in
the economic analysis consideration of economic benefits of protecting
yellow lance habitat, including ecosystem services, the protection of
clean water, the reduced cost of water treatment for drinking water
supplies, as well as public health benefits.
Our Response: As noted in the DEA, the primary intended benefit of
critical habitat is to support the conservation of endangered and
threatened species, such as the yellow lance. In order to quantify and
monetize direct benefits of the designation, information would be
needed to determine (1) the incremental change in the probability of
yellow lance conservation expected to result from the critical habitat
designation, and (2) the public's willingness to pay for such
beneficial changes. The conclusion was that additional project
modifications to avoid adverse modification of critical habitat for the
yellow lance are not anticipated. Because of the uncertainties
associated with monetary quantification of these benefits, we were not
able to estimate the economic benefits of ecosystem services, such as
clean water via mussel-based biofiltration treatment, or broad benefits
of ecosystem services that flow from protected areas to human
populations.
(4) Comment: One commenter noted that according to the SSA report,
the yellow lance is dependent on attaching itself to minnows to
successfully reach its adult stage. The commenter further noted that
although it is likely true that the yellow lance is mostly being
hindered by abiotic factors such as pollution and sedimentation,
establishing a critical habitat for this mussel species should also
address conditions necessary for the survival of its host species to
ensure proper development of the yellow lance. The commenter stated
that yellow lance's glochidia stage coincides with the spawning period
of minnows--from late spring to mid-summer--and that minnows are
obligate hosts for this species and require conservation consideration
in order to ensure proper development of the yellow lance. The
commenter then asked how this critical habitat can be tailored to also
meet the needs of the yellow lance's obligate hosts.
Our Response: In this critical habitat designation, we identify the
physical or biological features essential to yellow lance conservation,
and, of those, we include two physical or biological factors that
specifically mention the yellow lance's fish hosts: (1) 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 yellow lance 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; and (2) the presence and
abundance of fish hosts necessary for yellow lance recruitment. In
addition, we identify another physical or biological feature essential
to yellow lance conservation consisting of certain suitable substrates
and connected instream habitats ``that support a diversity of
freshwater mussels and native fish.'' Therefore, this critical habitat
designation does address, in the context of the physical or biological
features essential to yellow lance conservation, conditions necessary
for the yellow lance's fish hosts.
(5) Comment: One commenter noted that compliance with the existing
15 federally enacted best management practices (BMPs) for Clean Water
Act section 404(f)(1) exemption for established silviculture activities
like crossing a water of the United States, as well as compliance with
the North Carolina forestry practice guidelines (FPGs), and with any
other applicable State-enacted riparian buffer rules, should be deemed
as concurrent protection of critical habitat under the Act (16 U.S.C.
1531 et seq.).
Our Response: The Federal BMP under consideration states, ``The
discharge shall not take, or jeopardize the continued existence of, a
threatened or endangered species as defined under the Endangered
Species Act, or adversely modify or destroy the critical habitat of
such species.'' Therefore, this Federal BMP restates existing
requirements of the Act. The North Carolina FPGs are Statewide,
``mandatory narrative rule standards that were developed to assure that
forestry activities are conducted in a manner that protects water
quality'' (NCFS 2018, p. 1). The Service recognizes that adherence to
the FPG performance standards described under title 2 of the North
Carolina Administrative Code at chapter 60, subchapter C, are
considered by the North Carolina Forest Service to be compliance with
the Federal BMP
[[Page 18191]]
mentioned above. Thus, compliance with FPGs will also protect critical
habitat.
(6) Comment: One commenter recommended we provide Federal funds to
support cooperative improvements to forest access infrastructure and
other conservation management measures within the designated critical
habitat watersheds. The commenter suggested that robust, recurring
funding could go towards the following activities: (1) Increase the
availability of portable, temporary bridgemats for loggers to use on
stream crossings; (2) enhance cost-sharing of prompt and effective
reforestation after timber harvests; (3) provide cost-shared assistance
for landowners to remove/renovate/replace substandard, existing forest
road stream crossings; (4) develop pre-harvest plans for landowners
through technical assistance provided by a forester; (5) compensate
landowners in exchange for installing legal protections of critical
habitat riparian zones; and (6) provide targeted in-woods research,
study, and/or monitoring.
Our Response: The Service is working with forestry partners to
consider funding opportunities to advance the ideas suggested by the
commenter.
(7) Comment: One commenter offered information about the
conservation benefits provided to aquatic species on private, working
forests and requested that the Service include several references for
our consideration.
Our Response: We made several revisions to include new, relevant
reference materials in the forestry discussion in the SSA report, where
appropriate, in response to this comment. However, several of the
references provided by the commenter were not specific to studies of
the impacts or benefits of forestry management to freshwater mussels
and, therefore, were not included in the SSA report.
(8) Comment: One commenter noted that silvicultural practices
implemented with BMPs protect aquatic species and, because they are
widely implemented, should not be viewed as ``special management''; the
commenter recommended the Service instead recognize BMPs as routine
practices. They also note that although there are limited data
documenting relationships between BMPs and some individual aquatic and
riparian species, there is a significant body of research confirming
that BMPs contribute to water quality and riparian forest structure and
provided many references to this effect.
Our Response: BMPs are ``management practices'' that are used to
protect water quality during timber harvests and other forest
management activities (National Association of State Foresters 2020,
unpaginated). Because there are a variety of BMPs that may be
implemented depending on the project in consideration, and because
there can be a forestry management or harvest plan that details which
BMPs will be implemented for that particular project, the use of them
is considered ``management.'' The Act defines ``critical habitat'' as,
in part, the specific areas within the geographical area occupied by
the species which may require special management considerations.
Forestry best ``management practices'' are considered to be management
considerations needed for the habitat occupied by the yellow lance.
Whether they are routine or not, there is a management strategy used
when implementing BMPs; therefore, they can be considered ``special
management considerations'' under the Act. The SSA report (Service
2019, p. 49) and the February 6, 2020, proposed rule (85 FR 6861)
recognize that BMPs can protect water quality and habitat for aquatic
species. However, as noted by the commenter, there are some species for
which there are limited data documenting the relationships with BMPs,
and even with the 43 references provided in the comment letter, there
are no data presented that consider temporary or long-term effects of
sedimentation on long-lived, sedentary freshwater mussel species such
as the yellow lance.
(9) Comment: One commenter encourages the Service to modify the
proposed rule's language to acknowledge that removing large areas of
forested wetlands and riparian systems is not part of ongoing forest
management, nor is it compatible with BMP guidelines. The commenter
states that in making the above statements, the Service appears to rely
on older sources of information that do not reflect contemporary forest
management, or possibly sources describing practices in regions other
than the eastern United States.
Our Response: The section of the proposed rule that the commenter
refers to is Special Management Considerations or Protections (85 FR
6856, February 6, 2020, p. 85 FR 6861), which states that the features
essential to the conservation of the yellow lance may require special
management considerations or protections to reduce threats including
``improper forest management or silviculture activities that remove
large areas of forested wetlands and riparian systems.'' The comment
implies that the Service improperly characterized this as one of the
threats against which the special considerations or protections are
needed; therefore, in this rule, we have clarified that language. After
reviewing studies within the range of yellow lance in Virginia noted by
the commenter (Lakel et al. 2010, p. 541) and frequently asked
questions on the North Carolina State Forest Service's website (NCFS
2020, unpaginated), the Service notes that clearcutting, or entirely
removing all trees in a forested area (U.S. Forest Service 2020,
unpaginated), is a preferred method of harvesting timber. To harvest
sites, they are often clearcut, burned, and then replanted (Lakel et
al. 2010, p. 541). The threat to yellow lance from this harvest
practice is sedimentation from clearcuts near streams. Many of the
watersheds occupied by yellow lance do not have mandatory buffer
requirements to eliminate sedimentation, and, as noted above, there are
no data for the temporary or long-term effects of residual
sedimentation post-BMP implementation on freshwater mussels. As stated
above, in response to this comment, we have revised relevant language
in this rule to clarify that the threat is due to ``improper forest
management or clearcuts within riparian areas.''
Summary of Changes From the Proposed Rule
This final rule incorporates one minor substantive change to our
proposed rule (85 FR 6856; February 6, 2020) based on the comments we
received and that are summarized above under Summary of Comments and
Recommendations. We revised the language under Special Management
Considerations or Protections to clarify that the features essential to
the conservation of the yellow lance may require special management
considerations or protections to reduce ``improper forest management or
clearcuts within riparian areas.'' We made no other substantive changes
from the proposed rule to this final rule.
Background
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features;
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or
protection; and
[[Page 18192]]
(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 within an area, we focus on the
specific features that support the life-history needs of the species,
including, but not limited to, water characteristics, soil type,
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 and other information developed during
the listing process for the species. Additional information sources may
include any generalized conservation strategy, criteria, or outline
that may have been developed for the species; the recovery plan for the
species; articles in peer-reviewed journals; conservation plans
developed by States and counties; scientific status surveys and
studies; biological assessments; other unpublished materials; or
experts' opinions or personal knowledge.
Habitat is dynamic, and species may move from one area to another
over time. We recognize that critical habitat designated at a
particular point in time may not include all of the habitat areas that
we may later determine are necessary for the recovery of the species.
For these reasons, a critical habitat designation does not signal that
habitat outside the designated area is unimportant or may not be needed
for recovery of the species. Areas that are important to the
conservation of the species, both inside and outside the critical
habitat designation, will continue to be subject to: (1) Conservation
actions implemented under section 7(a)(1) of the Act; (2) regulatory
protections afforded by the requirement in section 7(a)(2) of the Act
for Federal agencies to ensure their actions are not likely to
jeopardize the continued existence of any endangered or threatened
species; and (3) the prohibitions found in section 9 of the Act.
Federally funded or permitted projects affecting listed species outside
their designated critical habitat areas may still result in jeopardy
findings in some cases. These protections and conservation tools will
continue to contribute to recovery of this species. Similarly, critical
habitat designations made on the basis of the best available
[[Page 18193]]
information at the time of designation will not control the direction
and substance of future recovery plans, habitat conservation plans
(HCPs), or other species conservation planning efforts if new
information available at the time of these planning efforts calls for a
different outcome.
Physical or Biological Features Essential to the Conservation of the
Species
In accordance with section 3(5)(A)(i) of the Act and regulations at
50 CFR 424.12(b), in determining which areas we will designate as
critical habitat from within the geographical area occupied by the
species at the time of listing, we consider the physical or biological
features that are essential to the conservation of the species and that
may require special management considerations or protection. The
regulations at 50 CFR 424.02 define ``physical or biological features
essential to the conservation of the species'' as the features that
occur in specific areas and that are essential to support the life-
history needs of the species, including, but not limited to, water
characteristics, soil type, geological features, sites, prey,
vegetation, symbiotic species, or other features. A feature may be a
single habitat characteristic or a more complex combination of habitat
characteristics. Features may include habitat characteristics that
support ephemeral or dynamic habitat conditions. Features may also be
expressed in terms relating to principles of conservation biology, such
as patch size, distribution distances, and connectivity. For example,
physical features essential to the conservation of the species might
include gravel of a particular size required for spawning, alkali soil
for seed germination, protective cover for migration, or susceptibility
to flooding or fire that maintains necessary early-successional habitat
characteristics. Biological features might include prey species, forage
grasses, specific kinds or ages of trees for roosting or nesting,
symbiotic fungi, or a particular level of nonnative species consistent
with conservation needs of the listed species. The features may also be
combinations of habitat characteristics and may encompass the
relationship between characteristics or the necessary amount of a
characteristic essential to support the life history of the species.
In considering whether features are essential to the conservation
of the species, 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. These characteristics include, but are not
limited to, space for individual and population growth and for normal
behavior; food, water, air, light, minerals, or other nutritional or
physiological requirements; cover or shelter; sites for breeding,
reproduction, or rearing (or development) of offspring; and habitats
that are protected from disturbance.
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. Yellow lance adults require
clear, flowing water with a temperature less than 35 degrees Celsius
([deg]C) (95 degrees Fahrenheit ([deg]F)) and a dissolved oxygen
greater than 3 milligrams per liter (mg/L). Juveniles require very
specific interstitial chemistry to complete that life stage: Low
salinity (similar to 0.9 parts per thousand (ppt)), low ammonia
(similar to 0.7 mg/L), low levels of copper and other contaminants, and
dissolved oxygen greater than 1.3 mg/L. 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 is an omnivore that primarily filter feeds on a
wide variety of microscopic particulate matter suspended in the water
column, including phytoplankton, zooplankton, bacteria, detritus, and
dissolved organic matter, and these food resources are closely tied to
riparian area inputs to the stream (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 yellow lance
is presented in the SSA report (Service 2019, entire), available on
http://www.regulations.gov at Docket No. FWS-R4-ES-2018-0094.
Summary of Essential Physical or Biological Features
We derive the specific physical or biological features essential to
yellow lance conservation from studies of the species' habitat,
ecology, and life history as described above, and in the SSA report. We
have determined that the following physical or biological features are
essential to yellow lance conservation:
(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 of newly transformed juveniles to settle and
become established in their habitats.
(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 yellow
lance recruitment.
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 that are essential to the conservation of
the species and which may require special management considerations or
protection. Activities on the surrounding landscape and in riparian
areas are closely tied to instream habitat, therefore special
management considerations can be linked to activities on land that
influence the stream and instream habitat. The features essential to
yellow lance conservation may require special management considerations
or protections to reduce the following threats: (1) Reduction in water
quality, quantity, and resulting sedimentation as
[[Page 18194]]
a result of 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) sedimentation from
incompatible forest management or clearcuts in riparian areas; (5)
culvert and pipe installations that create barriers to instream
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 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. As discussed in more detail below,
we are not designating any areas outside the geographical area occupied
by the species at the time of listing because we have not identified
any unoccupied areas that are essential for the conservation of the
species.
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 final critical habitat designation.
Sources of data for this final 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
2019, entire).
Areas Occupied at the Time of Listing
This critical habitat designation does not include all streams
known to have been occupied by the species historically; instead, it
focuses on streams and rivers within the historical range that have
also retained the necessary physical or biological features that will
allow for the maintenance and expansion of existing populations and
that were occupied at the time of listing. First, we identified stream
channels that currently support yellow lance populations. In the SSA
report, we define ``currently support'' as stream channels with
observations of the species from 2005 to 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 have been 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.
Areas Outside the Geographic Area Occupied at the Time of Listing
We are not designating any areas outside the geographical area
occupied by the species at the time of listing because we did not find
any unoccupied areas that are 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.
Critical Habitat Maps
When determining critical habitat boundaries, we made every effort
to avoid including developed areas such as lands covered by buildings,
pavement, and other structures because such lands lack physical or
biological features necessary for 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 rule have been excluded by text in
the rule and are not included for designation as critical habitat.
Therefore, 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.
The critical habitat designation is defined by the maps, as
modified by any accompanying regulatory text, presented at the end of
this document under Regulation Promulgation. We include more detailed
information on the boundaries of the critical habitat designation in
the discussion of
[[Page 18195]]
individual units below. We will make the GIS shapefiles 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.
Final Critical Habitat Designation
We are designating approximately 319 river mi (514 km) in 11 units
in North Carolina, Virginia, and Maryland as critical habitat for the
yellow lance. All of the units were occupied by the species at the time
of listing and contain some or all of the physical and biological
features that are essential to support life-history processes of the
species. These critical habitat areas, described below, constitute our
current best assessment of areas that meet the definition of critical
habitat for yellow lance. The table below shows the name, land
ownership of the riparian areas surrounding the units, and approximate
river miles of the designated units for yellow lance. Because all
streambeds are navigable waters, the actual critical habitat units are
all owned by the State where they occur. The riparian land adjacent to
the critical habitat is 83 percent private lands, 11 percent
conservation lands and easements, and 6 percent State lands.
Table of 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; Easements..... 41 (66)
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 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 wastewater treatment practicable will benefit the
species' 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, 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 wastewater
treatment practicable will benefit the habitat for the species in this
unit.
[[Page 18196]]
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
wastewater treatment 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 wastewater
treatment 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 2019, 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
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 unit include
oil and gas pipeline projects that propose to cross streams at
locations where the species occurs, with special management
recommendations of alternate routes for oil and gas pipelines, or
directional boring for those projects. 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.
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
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 wastewater treatment practicable, maintenance of forested
buffers, and connection of protected riparian corridors will benefit
habitat for the species in this unit.
[[Page 18197]]
Unit 8: TR2--Sandy/Swift Creek
Unit 8 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 listed
under the Act or result in the destruction or adverse modification of
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 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
[[Page 18198]]
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 ``Destruction or 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 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 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 yellow lance 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, which
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, oil and gas pipeline crossings, 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 lead to increased
sedimentation and degradation in water quality to levels that are
beyond the tolerances of yellow lance 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
[[Page 18199]]
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
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 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, 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, updated every five years,
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 km) of habitat in this 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 the determination to exclude a particular area, the
statute on its face, as well as the legislative history, are clear that
the Secretary has broad discretion regarding which factor(s) to use and
how much weight to give to any factor. On December 18, 2020, we
published a final rule in the Federal Register (85 FR 82376) revising
portions of our regulations pertaining to exclusions of critical
habitat. These final regulations became effective on January 19, 2021
and apply to critical habitat rules for which a proposed rule was
published after January 19, 2021. Consequently, these new regulations
do not apply to this final rule.
The first sentence in section 4(b)(2) of the Act requires that we
take into consideration the economic, national security, or other
relevant impacts of designating any particular area as critical
habitat. We describe below the process that we undertook for taking
into consideration each category of impacts and our analyses of the
relevant impacts.
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. In order to consider economic impacts of a
designation, we prepared an incremental effects memorandum (IEM) and
screening analysis which, together with our narrative and
interpretation of effects, constitute our final economic analysis (FEA)
of the critical habitat designation and related factors (IEc 2018,
entire). We made the analysis, dated September 28, 2018, available for
public review from February 6, 2020, through April 6, 2020. The DEA
addressed probable economic impacts of critical habitat for the yellow
lance. Following the close of the comment period, we reviewed and
evaluated all information submitted during the comment period that may
pertain to our consideration of the probable incremental economic
impacts of this critical habitat designation. Additional information
relevant to the probable incremental economic impacts of critical
habitat designation for the yellow lance is summarized below and
available in the screening analysis for the yellow lance (IEc 2018,
entire), available at http://www.regulations.gov.
The final critical habitat designation for yellow lance totals
approximately 319 river mi (514 km) in 11 units as critical habitat in
North Carolina, Virginia, and Maryland, all occupied at the time of
listing. In these areas, any actions that may affect critical habitat
would also affect the species, 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 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.
[[Page 18200]]
The probable incremental economic impacts of the yellow lance
critical habitat designation are expected to be limited to additional
administrative effort, as well as minor costs of conservation efforts
resulting from a small number of future section 7 consultations. This
low level of impacts is anticipated because, given that the critical
habitat is occupied by the species, actions that may adversely modify
the critical habitat would also likely jeopardize the continued
existence of the species; as a result, other than administrative costs,
incremental economic impacts of critical habitat designation over and
above impacts from consulting for jeopardy are unlikely.
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 conclude that
this final designation does not reach the threshold of ``significant''
under E.O. 12866.
Exclusions Based on Economic Impacts
As discussed above, we considered the economic impacts of the
critical habitat designation, and the Secretary is not exercising their
discretion to exclude any areas from this designation of critical
habitat for the yellow lance based on economic impacts. A copy of the
IEM and screening analysis with supporting documents may be obtained by
contacting the Raleigh Ecological Services Field Office (see ADDRESSES)
or by downloading from the internet at http://www.regulations.gov.
Exclusions Based on Impacts on National Security and Homeland Security
Section 4(a)(3)(B)(i) of the Act (see Exemptions, above) may not
cover all Department of Defense (DoD) lands or areas that pose
potential national-security concerns (e.g., a DoD installation that is
in the process of revising its INRMP for a newly listed species or a
species previously not covered). If a particular area is not covered
under section 4(a)(3)(B)(i), national-security or homeland-security
concerns are not a factor in the process of determining what areas meet
the definition of ``critical habitat.'' Nevertheless, when designating
critical habitat under section 4(b)(2), the Service must consider
impacts on national security, including homeland security, on lands or
areas not covered by section 4(a)(3)(B)(i). Accordingly, we will always
consider for exclusion from the designation areas for which DoD,
Department of Homeland Security (DHS), or another Federal agency has
requested exclusion based on an assertion of national-security or
homeland-security concerns. We 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 designation of critical habitat for yellow lance are not
owned or managed by DoD or DHS, and, therefore, we anticipate no impact
on national security. Consequently, we did not 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
nonpermitted 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 final rule, we determined that there are
currently no permitted conservation plans or other nonpermitted
conservation agreements or partnerships for the yellow lance, and the
final critical habitat designation does not include any Tribal lands or
trust resources. We anticipate no impact on Tribal lands, partnerships,
or permitted or nonpermitted plans or agreements from this critical
habitat designation. Accordingly, we did not exclude any areas from the
final designation based on other relevant impacts.
Required Determinations
Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs in the Office of Management and Budget (OMB) will
review all significant rules. The Office of Information and Regulatory
Affairs has determined that this rule is not significant.
Executive Order (E.O.) 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.
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,
[[Page 18201]]
special trade contractors doing less than $11.5 million in annual
business, and agricultural businesses with annual sales less than
$750,000. To determine whether potential economic impacts to these
small entities are significant, we considered the types of activities
that might trigger regulatory impacts under this designation as well as
types of project modifications that may result. In general, the term
``significant economic impact'' is meant to apply to a typical small
business firm's business operations.
Under the RFA, as amended, and as understood in light of recent
court decisions, Federal agencies are only required to evaluate the
potential incremental impacts of rulemaking on those entities directly
regulated by the rulemaking itself and, therefore, are 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
Federal action agencies are directly subject to the specific regulatory
requirement (avoiding destruction and adverse modification) imposed by
critical habitat designation. Consequently, it is our position that
only Federal action agencies will be directly regulated by this
designation. There is no requirement under the RFA to evaluate the
potential impacts to entities not directly regulated. Moreover, Federal
agencies are not small entities. Therefore, because no small entities
will be directly regulated by this rulemaking, the Service certifies
that this critical habitat designation will not have a significant
economic impact on a substantial number of small entities and a
regulatory flexibility analysis is not required.
Energy Supply, Distribution, or Use--Executive Order 13211
Executive Order 13211 (Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use) requires
agencies to prepare Statements of Energy Effects when undertaking
certain actions. OMB has provided guidance for implementing this E.O.
that outlines nine outcomes that may constitute ``a significant adverse
effect'' when compared to not taking the regulatory action under
consideration. The economic analysis finds that none of these criteria
is relevant to this analysis. Thus, based on information in the
economic analysis, energy-related impacts associated with yellow lance
conservation activities within critical habitat are not expected. As
such, the designation of critical habitat is not expected to
significantly affect energy supplies, distribution, or use. Therefore,
this action is not a significant energy action, and no Statement of
Energy Effects is required.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following findings:
(1) This rule will not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute, or regulation
that would impose an enforceable duty upon State, local, or Tribal
governments, or the private sector, and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or tribal governments'' with two
exceptions. It excludes ``a condition of Federal assistance.'' It also
excludes ``a duty arising from participation in a voluntary Federal
program,'' unless the regulation ``relates to a then-existing Federal
program under which $500,000,000 or more is provided annually to State,
local, and tribal governments under entitlement authority,'' if the
provision would ``increase the stringency of conditions of assistance''
or ``place caps upon, or otherwise decrease, the Federal Government's
responsibility to provide funding,'' and the State, local, or Tribal
governments ``lack authority'' to adjust accordingly. At the time of
enactment, these entitlement programs were: Medicaid; Aid to Families
with Dependent Children work programs; Child Nutrition; Food Stamps;
Social Services Block Grants; Vocational Rehabilitation State Grants;
Foster Care, Adoption Assistance, and Independent Living; Family
Support Welfare Services; and Child Support Enforcement. ``Federal
private sector mandate'' includes a regulation that ``would impose an
enforceable duty upon the private sector, except (i) a condition of
Federal assistance or (ii) a duty arising from participation in a
voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal Government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not destroy or adversely modify critical
habitat under section 7. While non-Federal entities that receive
Federal funding, assistance, or permits, or that otherwise require
approval or authorization from a Federal agency for an action, may be
indirectly impacted by the designation of critical habitat, the legally
binding duty to avoid destruction or adverse modification of critical
habitat rests squarely on the Federal agency. Furthermore, to the
extent that non-Federal entities are indirectly impacted because they
receive Federal assistance or participate in a voluntary Federal aid
program, the Unfunded Mandates Reform Act would not apply, nor would
critical habitat shift the costs of the large entitlement programs
listed above onto State governments.
(2) We do not believe that this rule will significantly or uniquely
affect small governments because most of the lands adjacent to the
streams being designated as critical habitat are owned by private
landowners. These entities do not fit the definition of ``small
governmental jurisdiction.'' The riparian habitat owned by Federal,
State, or local governments that we are designating as critical habitat
in this rule are either lands managed for conservation or lands already
developed. Consequently, we do not believe that the critical habitat
designation will significantly or uniquely affect small government
entities. As such, 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
[[Page 18202]]
would destroy or adversely modify critical habitat. A takings
implications assessment has been completed and concludes that 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 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 the critical habitat designation with, the
appropriate State resource agencies. We did not receive comments from
the States. 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
State, or on the relationship between the Federal Government and the
State, or on the distribution of powers and responsibilities among the
various levels of government. The designation may have some benefit to
these governments because the areas that contain the features essential
to the conservation of the species are more clearly defined, and the
physical or biological features of the habitat necessary 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) will be required. While non-Federal
entities that receive Federal funding, assistance, or permits, or that
otherwise require approval or authorization from a Federal agency for
an action, may be indirectly impacted by the designation of critical
habitat, the legally binding duty to avoid destruction or adverse
modification of critical habitat rests squarely on the Federal agency.
Civil Justice Reform--Executive Order 12988
In accordance with Executive Order 12988 (Civil Justice Reform),
the Office of the Solicitor has determined that the rule 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 are designating critical
habitat in accordance with the provisions of the Act. To assist the
public in understanding the habitat needs of the species, this rule
identifies the elements of physical or biological features essential to
the conservation of the species. The designated areas of critical
habitat are presented on maps, and the rule provides several options
for the interested public to obtain more detailed location information,
if desired.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This rule does not contain information collection requirements, and
a submission to the Office of Management and Budget (OMB) under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) is not
required. We may not conduct or sponsor and you are not required to
respond to a collection of information unless it displays a currently
valid OMB control number.
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
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 the National Environmental Policy
Act in connection with designating critical habitat under the Act. We
published a notice outlining our reasons for this determination in the
Federal Register on October 25, 1983 (48 FR 49244). This position was
upheld by the U.S. Court of Appeals for the Ninth Circuit (Douglas
County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S.
1042 (1996)).
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994
(Government-to-Government Relations with Native American Tribal
Governments; 59 FR 22951), Executive Order 13175 (Consultation and
Coordination With Indian Tribal Governments), and the Department of the
Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. In accordance with
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species Act),
we readily acknowledge our responsibilities to work directly with
Tribes in developing programs for healthy ecosystems, to acknowledge
that Tribal lands are not subject to the same controls as Federal
public lands, to remain sensitive to Indian culture, and to make
information available to Tribes. We have identified no Tribal interests
that will be affected by this rule.
References Cited
A complete list of references cited in this 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).
Authors
The primary authors of this rule are the staff members of the U.S.
Fish and Wildlife Service Species Assessment Team and Raleigh
Ecological Services Field Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Regulation Promulgation
Accordingly, we amend part 17, subchapter B of chapter I, title 50
of the Code of Federal Regulations, as set forth below:
PART 17--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) * * *
[[Page 18203]]
----------------------------------------------------------------------------------------------------------------
Listing citations and
Common name Scientific name Where listed Status applicable rules
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Clams
* * * * * * *
Lance, yellow................... Elliptio Wherever found.... T 83 FR 14189, 4/3/2018;
lanceolata. 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 set forth below:
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 yellow lance conservation 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 yellow
lance recruitment.
(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
May 10, 2021.
(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 18204]]
(5) Note: Index map follows:
BILLING CODE 4333-15-P
[GRAPHIC] [TIFF OMITTED] TR08AP21.000
[[Page 18205]]
(6) Unit 1: PR1--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 miles (4.8 km) of the
Patuxent River and 7 miles (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] TR08AP21.001
[[Page 18206]]
(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] TR08AP21.002
[[Page 18207]]
(8) Unit 3: RR2--Rapidan 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
Rapidan River. Unit 3 includes stream habitat up to bank full height.
(ii) Map of Unit 3 follows:
[GRAPHIC] [TIFF OMITTED] TR08AP21.003
[[Page 18208]]
(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] TR08AP21.004
[[Page 18209]]
(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] TR08AP21.005
[[Page 18210]]
(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] TR08AP21.006
[[Page 18211]]
(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] TR08AP21.007
[[Page 18212]]
(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] TR08AP21.008
[[Page 18213]]
(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] TR08AP21.009
[[Page 18214]]
(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] TR08AP21.010
[[Page 18215]]
(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] TR08AP21.011
* * * * *
Martha Williams,
Principal Deputy Director, Exercising the Delegated Authority of the
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2021-06736 Filed 4-7-21; 8:45 am]
BILLING CODE 4333-15-C