[Federal Register Volume 86, Number 185 (Tuesday, September 28, 2021)]
[Proposed Rules]
[Pages 53609-53627]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-20924]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R2-ES-2020-0015; FF09E21000 FXES11110900000 212]
RIN 1018-BD20
Endangered and Threatened Wildlife and Plants; Endangered Status
for South Llano Springs Moss and Designation of Critical Habitat
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
list the South Llano Springs moss (Donrichardsia macroneuron), an
aquatic moss species from Texas, as an endangered species and to
designate critical habitat under the Endangered Species Act of 1973, as
amended (Act). After a review of the best available scientific and
commercial information, we find that listing the species is warranted.
This determination also serves as our 12-month finding on a petition to
list the South Llano Springs moss. Accordingly, we propose to list the
South Llano Springs moss as an endangered species. If we finalize this
rule as proposed, it would add this species to the list of Endangered
and Threatened Plants and extend the Act's protections to the species.
We also propose to designate critical habitat for the South Llano
Springs moss under the Act. In total, approximately 0.19 hectares (0.48
acres) in Edwards County, Texas, fall within the boundaries of the
proposed critical habitat designation. We also announce the
availability of a draft economic analysis (DEA) of the proposed
designation of critical habitat for the South Llano Springs moss.
DATES: We will accept comments received or postmarked on or before
November 29, 2021. Comments submitted electronically using the Federal
eRulemaking Portal (see ADDRESSES, below) must be received by 11:59
p.m. Eastern Time on the closing date. We must receive requests for a
public hearing, in writing, at the address shown in FOR FURTHER
INFORMATION CONTACT by November 12, 2021.
ADDRESSES: Written comments: You may submit comments by one of the
following methods:
(1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter the docket number or RIN
for this rulemaking (presented above in the document headings). For
best results, do not copy and paste either number; instead, type the
docket number or RIN into the Search box using hyphens. Then, click on
the Search button. On the resulting page, in the Search panel on the
left side of the screen, under the Document Type heading, check the
Proposed Rule box to locate this document. You may submit a comment by
clicking on ``Comment.''
(2) By hard copy: Submit by U.S. mail to: Public Comments
Processing, Attn: FWS-R2-ES-2020-0015, U.S. Fish and Wildlife Service,
MS: JAO/1N, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
We request that you send comments only by the methods described
above. We will post all comments on http://www.regulations.gov. This
generally means that we will post any personal information you provide
us (see
[[Page 53610]]
Information Requested, below, for more information).
Availability of supporting materials: For the critical habitat
designation, the draft economic analysis and the coordinates or plot
points or both from which the maps are generated are included in the
administrative record and are available at the Service's internet site
at https://www.fws.gov/southwest/es/AustinTexas/ and at http://www.regulations.gov under Docket No. FWS-R2-ES-2020-0015. Any
additional tools or supporting information that we may develop for the
critical habitat designation will also be available at the Service
website and field office set out above, and may also be included in the
preamble and/or at http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Adam Zerrenner, Field Supervisor, U.S.
Fish and Wildlife Service, Austin Ecological Services Field Office,
10711 Burnet Road, Suite 200, Austin, TX 78758; telephone 512-490-0057.
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 the Act, if we determine that
a species may be an endangered or threatened species throughout all or
a significant portion of its range, we are required to promptly publish
a proposal in the Federal Register and make a determination on our
proposal within 1 year. To the maximum extent prudent and determinable,
we must designate critical habitat for any species that we determine to
be an endangered or threatened species under the Act. Listing a species
as an endangered or threatened species and designation of critical
habitat can only be completed by issuing a rule.
What this document does. We propose to list the South Llano Springs
moss as an endangered species under the Act, and we propose to
designate critical habitat for the species on approximately 0.19
hectares (ha) (0.48 acres (ac)) in Edwards County, Texas.
The basis for our action. Under the Act, we may determine that a
species is an endangered or threatened species because of any of five
factors: (A) The present or threatened destruction, modification, or
curtailment of its habitat or range; (B) overutilization for
commercial, recreational, scientific, or educational purposes; (C)
disease or predation; (D) the inadequacy of existing regulatory
mechanisms; or (E) other natural or manmade factors affecting its
continued existence. We have determined that increased groundwater
pumping from the Edwards-Trinity aquifer that supplies water for the
springs that the South Llano Springs moss is dependent on, as well as
flash floods, sedimentation, invasive plant species, small population
size, a single population, and lack of genetic diversity, and
cumulative impacts from these threats, threaten this plant species to
the degree that listing it as an endangered species under the Act is
warranted.
Section 4(a)(3) of the Act requires the Secretary of the Interior
(Secretary) to designate critical habitat concurrent with listing to
the maximum extent prudent and determinable. 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.
We prepared a draft economic analysis of the proposed designation
of critical habitat. In order to consider economic impacts, we prepared
an analysis of the economic impacts of the proposed critical habitat
designation. We hereby announce the availability of the draft economic
analysis and seek public review and comment.
Peer review. In accordance with our joint policy on peer review
published in the Federal Register on July 1, 1994 (59 FR 34270), and
our August 22, 2016, memorandum updating and clarifying the role of
peer review of listing actions under the Act, we sought the expert
opinions of four appropriate specialists regarding the species status
assessment report. We received a response from one specialist, which
informed this proposed rule. The purpose of peer review is to ensure
that our listing determination and critical habitat designation are
based on scientifically sound data, assumptions, and analyses. The peer
reviewers we contacted have expertise in the biology, habitat, and
threats to the species.
Because we will consider all comments and information we receive
during the comment period, our final determinations may differ from
this proposal. Based on the new information we receive (and any
comments on that new information), we may conclude that the species is
threatened instead of endangered, or we may conclude that the species
does not warrant listing as either an endangered species or a
threatened species. Such final decisions would be a logical outgrowth
of this proposal, as long as we: (a) Base the decisions on the best
scientific and commercial data available after considering all of the
relevant factors; (2) do not rely on factors Congress has not intended
us to consider; and (3) articulate a rational connection between the
facts found and the conclusions made, including why we changed our
conclusion.
Information Requested
We intend that any final action resulting from this proposed rule
will be based on the best scientific and commercial data available and
be as accurate and as effective as possible. Therefore, we request
comments or information from other concerned governmental agencies,
Native American tribes, the scientific community, industry, or any
other interested parties concerning this proposed rule.
We particularly seek comments concerning:
(1) The species' biology, range, and population trends, including:
(a) Biological or ecological requirements of the species, including
habitat requirements for feeding, breeding, and sheltering;
(b) Genetics and taxonomy;
(c) Historical and current range, including distribution patterns;
(d) Historical and current population levels, and current and
projected trends; and
(e) Past and ongoing conservation measures for the species, its
habitat, or both.
(2) Factors that may affect the continued existence of the species,
which may include habitat modification or destruction, overutilization,
disease, predation, the inadequacy of existing regulatory mechanisms,
or other natural or manmade factors.
(3) Biological, commercial trade, or other relevant data concerning
any threats (or lack thereof) to this species and existing regulations
that may be addressing those threats.
(4) Additional information concerning the historical and current
status, range, distribution, and population size of this
[[Page 53611]]
species, including the locations of any additional populations of this
species.
(5) The reasons why we should or should not designate habitat as
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et
seq.), including information to inform the following factors that the
regulations identify as reasons why designation of critical habitat may
be not prudent:
(a) The species is threatened by taking or other human activity and
identification of critical habitat can be expected to increase the
degree of such threat to the species;
(b) The present or threatened destruction, modification, or
curtailment of a species' habitat or range is not a threat to the
species, or threats to the species' habitat stem solely from causes
that cannot be addressed through management actions resulting from
consultations under section 7(a)(2) of the Act;
(c) Areas within the jurisdiction of the United States provide no
more than negligible conservation value, if any, for a species
occurring primarily outside the jurisdiction of the United States; or
(d) No areas meet the definition of critical habitat.
(6) Specific information on:
(a) The amount and distribution of the South Llano Springs moss
habitat;
(b) What areas, that were occupied at the time of listing and that
contain the physical or biological features essential to the
conservation of the species, should be included in the designation and
why;
(c) Special management considerations or protection that may be
needed in the critical habitat area we are proposing, including
managing for the potential effects of climate change; and
(d) What areas not occupied at the time of listing are essential
for the conservation of the species. We particularly seek comments:
(i) Regarding whether occupied areas are adequate for the
conservation of the species; and
(ii) Providing specific information regarding whether or not
unoccupied areas would, with reasonable certainty, contribute to the
conservation of the species and contain at least one physical or
biological feature essential to the conservation of the species.
(7) Land use designations and current or planned activities in the
subject areas and their possible impacts on proposed critical habitat.
(8) Any probable economic, national security, or other relevant
impacts of designating any area that may be included in the final
designation, and the related benefits of including or excluding
specific areas.
(9) Information on the extent to which the description of probable
economic impacts in the draft economic analysis is a reasonable
estimate of the likely economic impacts.
(10) Whether any specific areas we are proposing for critical
habitat designation should be considered for exclusion under section
4(b)(2) of the Act, and whether the benefits of potentially excluding
any specific area outweigh the benefits of including that area under
section 4(b)(2) of the Act.
(11) Whether we could improve or modify our approach to designating
critical habitat in any way to provide for greater public participation
and understanding, or to better accommodate public concerns and
comments.
Please include sufficient information with your submission (such as
scientific journal articles or other publications) to allow us to
verify any scientific or commercial information you include.
Please note that submissions merely stating support for, or
opposition to, the action under consideration without providing
supporting information, although noted, will not be considered in
making a determination, as section 4(b)(1)(A) of the Act directs that
determinations as to whether any species is an endangered or a
threatened species must be made ``solely on the basis of the best
scientific and commercial data available.''
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in ADDRESSES. We request that you
send comments only by the methods described in ADDRESSES.
If you submit information via http://www.regulations.gov, your
entire submission--including any personal identifying information--will
be posted on the website. If your submission is made via a hardcopy
that includes personal identifying information, you may request at the
top of your document that we withhold this information from public
review. However, we cannot guarantee that we will be able to do so. We
will post all hardcopy submissions on http://www.regulations.gov.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection on http://www.regulations.gov, or by
appointment, during normal business hours, at the U.S. Fish and
Wildlife Service, Austin Ecological Services Field Office (see FOR
FURTHER INFORMATION CONTACT).
Public Hearing
Section 4(b)(5) of the Act provides for a public hearing on this
proposal, if requested. Requests must be received by the date specified
in DATES. Such requests must be sent to the address shown in FOR
FURTHER INFORMATION CONTACT. We will schedule a public hearing on this
proposal, if requested, and announce the date, time, and place of the
hearing, as well as how to obtain reasonable accommodations, in the
Federal Register and local newspapers at least 15 days before the
hearing. For the immediate future, we will provide these public
hearings using webinars that will be announced on the Service's
website, in addition to the Federal Register. The use of these virtual
public hearings is consistent with our regulation at 50 CFR
424.16(c)(3).
Previous Federal Actions
On June 18, 2007, we received a formal petition from Forest
Guardians (later named WildEarth Guardians) to list 475 species in the
southwestern United States, including the South Llano Springs moss, as
endangered or threatened species under the Act. On March 19, 2008,
WildEarth Guardians filed a complaint that the Service failed to comply
with the mandatory duty to make a preliminary 90-day finding. On
January 6, 2009, we published in the Federal Register (74 FR 419) a 90-
day finding that the petition did not present sufficient information to
indicate that listing the South Llano Springs moss may be warranted. On
December 16, 2009, we published a new 90-day finding, based on a re-
evaluation of the information presented in the petition and readily
available in our files, that the petition provided substantial
information indicating that listing of the South Llano Springs moss may
be warranted based on the present or threatened destruction,
modification, or curtailment of habitat or range as a result of drought
or changes in hydrology (74 FR 66866).
Supporting Documents
A species status assessment (SSA) team prepared an SSA report for
the South Llano Springs moss. 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 Service sent the SSA report to four
independent peer reviewers and
[[Page 53612]]
received one response. The Service also sent the SSA report to
partners, including scientists with expertise with this species, for
review. We received one review from the Texas Parks and Wildlife
Department.
I. Proposed Listing Determination
Background
The South Llano Springs moss is an aquatic moss that grows on
submerged or partially submerged rocks. The deep, loosely interwoven
mats are blue-green to blackish-brown when shaded and yellow-green when
exposed to full sun. Like all mosses, the South Llano Springs moss
forms clonal colonies of leaf-bearing stems.
The South Llano Springs moss has an extremely limited range: It has
only been documented in two locations and is thought to be extirpated
from one of those. The remaining extant site is from Seven Hundred
Springs, on the South Llano River in Edwards County, Texas. The
extirpated site, referred to as the Redfearn site, was about 5
kilometers (km) (3.1 miles (mi)) downstream from Seven Hundred Springs
in Kimble County, Texas, though the exact location is unknown. Both
sites occur within the Edwards Plateau. Wyatt and Stoneburner (1980,
pp. 514, 516) visited 10 other springs in the Llano and South Llano
River watersheds in 1978 and 1979, but found no additional populations.
The South Llano Springs moss was discovered at Seven Hundred
Springs in 1932, and was most recently confirmed there in 1979 (Wyatt
and Stoneburner 1980, entire). When last observed, the South Llano
Springs moss was abundantly dispersed in the spring outflow, partially
submerged in shaded areas within an area of about 10 by 100 meters (m)
(33 by 328 feet (ft)) between the springs and the river below on
privately owned land (Wyatt and Stoneburner 1980, p. 516). Observation
of the habitat from the opposite side of the river in 2017 indicated
that the habitat appears to be in excellent condition (Service 2017,
entire). This is the best available information we have for this site;
consequently, we consider the Seven Hundred Springs population to be
extant. The South Llano Springs moss was last documented at the
Redfearn site in 1971. The two specimen labels from these collections
state that they were collected ``1 mile south of Telegraph'' with one
specimen collected on a dam and the other from limestone at the edge of
the creek. On topographic maps, Telegraph is a location consisting of a
single store that is not directly along the river; however, there is a
road connecting Telegraph to the South Llano River with a bridge, and
this may be the location from which Redfearn was measuring. Due to the
vague location description, there is uncertainty around the exact
location of the Redfearn site. In 2017, we conducted surveys along 5.7
km of the South Llano River, including the 2.25 km in which we believe
Redfearn collected his specimens. All aquatic moss species encountered
were collected and a sample of each of the four species encountered was
sent to a bryologist at the Missouri Botanical Garden for
identification. None of the species collected were found to be the
South Llano Springs moss. This is the best available information we
have for this site; consequently, we consider the Redfearn population
to be extirpated. It is possible that the species does not occur
anywhere else. However, few surveys for this species have been
conducted. Consequently, it is possible that this species occurs
elsewhere along Paint Creek or the South Llano River. The best
available data indicate that only the Seven Hundred Springs population
persists.
A thorough review of the taxonomy, life history, and ecology of the
South Llano Springs moss is presented in the SSA report (version 1.1;
Service 2018, entire).
Regulatory and Analytical Framework
Regulatory Framework
Section 4 of the Act (16 U.S.C. 1533) and its implementing
regulations (50 CFR part 424) set forth the procedures for determining
whether a species is an ``endangered species'' or a ``threatened
species.'' The Act defines an endangered species as a species that is
``in danger of extinction throughout all or a significant portion of
its range,'' and a threatened species as a species that is ``likely to
become an endangered species within the foreseeable future throughout
all or a significant portion of its range.'' The Act requires that we
determine whether any species is an ``endangered species'' or a
``threatened species'' because of any of the following factors:
(A) The present or threatened destruction, modification, or
curtailment of its habitat or range;
(B) Overutilization for commercial, recreational, scientific, or
educational purposes;
(C) Disease or predation;
(D) The inadequacy of existing regulatory mechanisms; or
(E) Other natural or manmade factors affecting its continued
existence.
These factors represent broad categories of natural or human-caused
actions or conditions that could have an effect on a species' continued
existence. In evaluating these actions and conditions, we look for
those that may have a negative effect on individuals of the species, as
well as other actions or conditions that may ameliorate any negative
effects or may have positive effects.
We use the term ``threat'' to refer in general to actions or
conditions that are known to or are reasonably likely to negatively
affect individuals of a species. The term ``threat'' includes actions
or conditions that have a direct impact on individuals (direct
impacts), as well as those that affect individuals through alteration
of their habitat or required resources (stressors). The term ``threat''
may encompass--either together or separately--the source of the action
or condition or the action or condition itself.
However, the mere identification of any threat(s) does not
necessarily mean that the species meets the statutory definition of an
``endangered species'' or a ``threatened species.'' In determining
whether a species meets either definition, we must evaluate all
identified threats by considering the expected response by the species,
and the effects of the threats--in light of those actions and
conditions that will ameliorate the threats--on an individual,
population, and species level. We evaluate each threat and its expected
effects on the species, then analyze the cumulative effect of all of
the threats on the species as a whole. We also consider the cumulative
effect of the threats in light of those actions and conditions that
will have positive effects on the species, such as any existing
regulatory mechanisms or conservation efforts. The Secretary determines
whether the species meets the definition of an ``endangered species''
or a ``threatened species'' only after conducting this cumulative
analysis and describing the expected effect on the species now and in
the foreseeable future.
The Act does not define the term ``foreseeable future,'' which
appears in the statutory definition of ``threatened species.'' Our
implementing regulations at 50 CFR 424.11(d) set forth a framework for
evaluating the foreseeable future on a case-by-case basis. The term
``foreseeable future'' extends only so far into the future as the
Services can reasonably determine that both the future threats and the
species' responses to those threats are likely. In other words, the
foreseeable future is the period of time in which we can make reliable
predictions. ``Reliable'' does not mean ``certain''; it means
sufficient to
[[Page 53613]]
provide a reasonable degree of confidence in the prediction. Thus, a
prediction is reliable if it is reasonable to depend on it when making
decisions.
It is not always possible or necessary to define foreseeable future
as a particular number of years. Analysis of the foreseeable future
uses the best scientific and commercial data available and should
consider the timeframes applicable to the relevant threats and to the
species' likely responses to those threats in view of its life-history
characteristics. Data that are typically relevant to assessing the
species' biological response include species-specific factors such as
lifespan, reproductive rates or productivity, certain behaviors, and
other demographic factors.
Analytical Framework
The SSA report documents the results of our comprehensive
biological status review for the species, including an assessment of
the potential threats to the species. The SSA report does not represent
a decision by the Service on whether the species should be proposed for
listing as an endangered or threatened species under the Act. It does,
however, provide the scientific basis that informs our regulatory
decisions, which involve the further application of standards within
the Act and its implementing regulations and policies. The following is
a summary of the key results and conclusions from the SSA report; the
full SSA report can be found on http://www.regulations.gov under Docket
FWS-R2-ES-2020-0015.
To assess the viability of the South Llano Springs moss, we used
the three conservation biology principles of resiliency, redundancy,
and representation (Shaffer and Stein 2000, pp. 306-310). Briefly,
resiliency supports the ability of the species to withstand
environmental and demographic stochasticity (for example, wet or dry,
warm or cold years), redundancy supports the ability of the species to
withstand catastrophic events (for example, droughts, large pollution
events), and representation supports the ability of the species to
adapt over time to long-term changes in the environment (for example,
climate changes). In general, the more resilient and redundant a
species is and the more representation it has, the more likely it is to
sustain populations over time, even under changing environmental
conditions. Using these principles, we identified the species'
ecological requirements for survival and reproduction at the
individual, population, and species levels, and described the
beneficial and risk factors influencing the species' viability.
The SSA process can be categorized into three sequential stages.
During the first stage, we evaluated individual species' life-history
needs. The next stage involved an assessment of the historical and
current condition of the species' demographics and habitat
characteristics, including an explanation of how the species arrived at
its current condition. The final stage of the SSA involved making
predictions about the species' responses to positive and negative
environmental and anthropogenic influences. This process used the best
available information to characterize viability as the ability of a
species to sustain populations in the wild over time. We use this
information to inform our regulatory decision.
Summary of Biological Status and Threats
In this section, we review the biological condition of the species
and its resources, and the threats that influence the species' current
and future condition, in order to assess the species' overall viability
and the risks to that viability.
Based on the conditions of the only known current and historical
populations, the South Llano Springs moss requires a constant flow of
mineral-rich spring water or spring-fed river water over shallow
limestone rocks. Seven Hundred Springs and the areas thought to contain
the Redfearn sites are supported by spring flows within the Edwards-
Trinity aquifer and the South Llano River watershed (Seven Hundred
Springs and Big Paint Springs). These springs have never ceased flowing
in recorded history. Water from these springs emerges at a very
consistent temperature and is rich in travertine minerals. Rocks and
plants immersed in the upper South Llano River quickly become encrusted
with travertine- or tufa-like mineral deposits, to an unusual degree
not seen in most springs in the Edwards-Trinity aquifer (Service 2017,
p. 2). Thus, it is possible that high mineral concentrations, or the
precipitation of minerals from solution, could be requirements for the
establishment and growth of South Llano Springs moss individuals.
The water temperature of Seven Hundred Springs was consistently
21.5 degrees Celsius ([deg]C) (70.7 degrees Fahrenheit ([deg]F)) in
June, and the pH ranged from 7.0 to 7.2 (Wyatt and Stoneburner 1980, p.
516). The species occurred in both shaded and exposed niches at Seven
Hundred Springs (Wyatt and Stoneburner 1980, p. 516). Associated
vascular plant species included maidenhair fern (Adiantum capillus-
veneris), southern shield fern (Thelypteris kunthii), watercress
(Nasturtium officinale), and members of the mint family (Lamiaceae) and
composite family (Asteraceae) (Wyatt and Stoneburner 1980, p. 516).
Associated moss species included Hygroamblystegium tenax and Eucladium
verticillatum (Wyatt and Stoneburner 1980, p. 517).
Mosses closely related to the South Llano Springs moss reproduce
both sexually and asexually. However, there is no evidence that sexual
reproduction is occurring in the single remaining known site of
occurrence, as no plants with female reproductive structures were
observed in the wild population or during a 16-month propagation study
in 1978 and 1979 (Wyatt and Stoneburner 1980, p. 517). The plants
cultivated in captivity produced only male reproductive structures. It
is possible that the known population may be a clone of a single or a
few male individuals and that sexual reproduction is no longer possible
for the species.
In addition to the habitat requirements described above, resilient
populations of South Llano Springs moss need to be large enough that
local stochastic events do not eliminate all individuals, allowing the
overall population to recover from any one event. The larger a
population is, the greater the chances that a portion of the population
will survive. The minimum viable population size is not known for this
species. However, the geographic extent is provided from the
observations of Wyatt and Stoneburner (1980, p. 516). When last
observed, the South Llano Springs moss grew in the spring outflow
partially submerged in shaded areas within a 10 m (33 ft) zone between
the springs and the river below (Wyatt and Stoneburner 1980, p. 516).
We assume that the population could be as large as the spring flow and
substrate allow in this zone. The area occupied by a moss population is
a practical surrogate for abundance, provided that it is understood
that this does not address the number of genetically unique
individuals.
Recruitment is also needed for populations to be resilient. The
colony at Seven Hundred Springs may be a clone of a single individual,
or only male individuals, and is presumed incapable of sexual
reproduction (Wyatt and Stoneburner 1980, p. 520). Unless female
individuals are present, the colony of South Llano Springs moss at
Seven Hundred Springs can persist and grow only through vegetative
budding or through the establishment of
[[Page 53614]]
fragments that happen to lodge in suitable niches. These mats can
expand to occupy new habitats while the portion that established
earlier dies. An individual remains alive as long as old stems die no
faster than new stems develop. The same individual could migrate back
and forth through available habitats for an unlimited period of time,
and it is not inconceivable that the individuals we see today arose
from spores that germinated many thousands of years ago. For the
species to persist, the recruitment of new individuals must equal or
exceed mortality.
Wyatt and Stoneburner (1980, pp. 519-520) estimated that the
species' range may have been more extensive 10,000 years ago, and
subsequently became restricted to this single location as the climate
warmed and other springs periodically stopped flowing. To assess the
climate changes that could affect this species into the future, we
examined the climate parameters using both the representative
concentration pathway (RCP) 4.5 and RCP 8.5 scenarios to provide a
range of projected values. These models predict that by 2074 climate
changes could result in a reduction of aquifer recharge and an
increased duration and severity of droughts and heavy rainfall, thereby
increasing the threats of interrupted spring flows and flash floods.
Annual precipitation is highly variable in central Texas, and severe,
multi-year droughts occurred during the 1950s and from 2006 through
2012. During these historical periods of drought, only the largest
springs along the South Llano River, including Seven Hundred Springs,
continued flowing, but at lower rates. Prolonged drought in combination
with increased pumping from the Edwards-Trinity aquifer could increase
the probability of interrupted flows of these springs and,
consequently, the extirpation or extinction of the South Llano Springs
moss. Despite the frequency of prolonged drought, the region is also
subject to extremely heavy rainfall, often resulting from tropical
storms in the Gulf of Mexico as well as the Pacific Ocean. All of these
factors contribute to flash floods (high intensity, low duration
floods) that can drastically change stream beds and the surrounding
vegetation, potentially scouring the South Llano Springs moss from its
rock substrate along the edge of the stream, or burying it beneath
deposits of silt, sand, and gravel.
The amount of pumping from the Edwards-Trinity aquifer is one of
the most important factors influencing storage in the aquifer and
spring flows. Aquifer water levels are stable or have declined slightly
over most of the Edwards-Trinity aquifer, but in some areas, heavy
pumping has led to long-term declines in aquifer levels and diminished
or interrupted spring flows (George et al. 2011, p. 35; Region F Water
Planning Group 2015, pp. 1-34, 3-15; Plateau Region Water Planning
Group 2016, pp. 7-11). These sources project relatively little growth
in the human population in Edwards and Kimble Counties during the next
50 years. Conversely, population growth is projected to increase for
five central Texas counties, which include the metropolitan areas of
San Antonio, New Braunfels, San Marcos, Austin, Round Rock, and
Georgetown, by 32 percent between 2017 and 2037, and by 53 percent
between 2017 and 2050 (Texas Demographic Center 2017, p. 1). It is
reasonably foreseeable that increased pumping may occur from the
Edwards-Trinity aquifer for transfer to other regions to supply
increased municipal water demands. This increased pumping could reduce
water storage in the Edwards-Trinity aquifer and spring flows in the
South Llano River. Loss of spring flows, even for a short time, would
likely reduce or extirpate the only known remaining population of the
South Llano Springs moss because the species requires constant
immersion in flowing spring water to persist.
The Upper Llano River Watershed Protection Plan (Broad et al. 2016,
pp. 51, 64-66, 86) identifies increased runoff, evapotranspiration, and
sediment loading as impacts to the upper Llano River watersheds due to
the encroachment of woody species. Recharge into the Edwards-Trinity
aquifer in Edwards County has been reduced during prior periods of
vegetation loss from overgrazing, resulting in increased runoff and the
drying of some smaller springs (Brune 1981, p. 173). Aquifer recharge
may also have been reduced by the encroachment of brush into formerly
grass-dominated uplands (South Llano Watershed Alliance 2012, p. 9;
Broad et al. 2016, pp. 40-41, 51). Aquifer recharge would also be
reduced by an increase in evapotranspiration, due to increased
temperatures.
Small populations are less able to recover from losses caused by
random fluctuations in recruitment (demographic stochasticity) or
variations in spring outflow (environmental stochasticity) (Service
2015, p. 12). In addition to population size, it is likely that
population density also influences population viability, as sexual
reproduction, if it occurs at all in the species' current situation,
requires male and female mosses to be in close proximity. Small,
reproductively isolated populations are also susceptible to the loss of
genetic diversity, to genetic drift, and to inbreeding (Barrett and
Kohn 1991, pp. 3-30). The loss of genetic diversity may reduce the
ability of a species or population to resist pathogens and parasites,
to adapt to changing environmental conditions, or to colonize new
habitats. The combined demographic and genetic consequences of small
population sizes may reduce population recruitment, leading to even
smaller populations and greater isolation, and further decreasing the
viability of the species. These factors may already have contributed to
the decline of the South Llano Springs moss to its current state of
extreme endemism in the upper South Llano River. All of the above
stressors are exacerbated by the fact that the South Llano Springs moss
likely consists of only one, small population.
We note that, by using the SSA framework to guide our analysis of
the scientific information documented in the SSA report, we have not
only analyzed individual effects on the species, but we have also
analyzed their potential cumulative effects. We incorporate the
cumulative effects into our SSA analysis when we characterize the
current and future condition of the species. Our assessment of the
current and future conditions encompasses and incorporates the threats
individually and cumulatively. Our current and future condition
assessment is iterative because it accumulates and evaluates the
effects of all the factors that may be influencing the species,
including threats and conservation efforts. Because the SSA framework
considers not just the presence of the factors, but to what degree they
collectively influence risk to the entire species, our assessment
integrates the cumulative effects of the factors and replaces a
standalone cumulative effects analysis.
Determination of Status for the South Llano Springs Moss
Section 4 of the Act (16 U.S.C. 1533) and its implementing
regulations (50 CFR part 424) set forth the procedures for determining
whether a species meets the definition of ``endangered species'' or
``threatened species.'' The Act defines an ``endangered species'' as a
species that is ``in danger of extinction throughout all or a
significant portion of its range,'' and a ``threatened species'' as a
species that is ``likely to become an endangered species within the
foreseeable future throughout all or a significant portion of its
range.'' The Act requires that we determine whether a species meets the
definition of ``endangered species'' or ``threatened
[[Page 53615]]
species'' because of any of the following factors: (A) The present or
threatened destruction, modification, or curtailment of its habitat or
range; (B) Overutilization for commercial, recreational, scientific, or
educational purposes; (C) Disease or predation; (D) The inadequacy of
existing regulatory mechanisms; or (E) Other natural or manmade factors
affecting its continued existence.
Status Throughout All of Its Range
After evaluating threats to the species and assessing the
cumulative effect of the threats under the section 4(a)(1) factors, we
propose listing the South Llano Springs moss as an endangered species
throughout all of its range. Only two very small populations of South
Llano Springs moss have been documented, which were last observed in
1971 and 1979. One is now extirpated and the other is restricted to a
10 by 100 m (33 by 328 ft) zone between Seven Hundred Springs and the
South Llano River (Wyatt and Stoneburner 1980, p. 516). Therefore, the
species has an extremely low level of representation, and no
redundancy, making it vulnerable to catastrophic events such as flash
floods and droughts. During historic droughts, such as in the 1950s and
2006-2012, many regional springs ceased flowing and the flow of Seven
Hundred Springs was greatly reduced. Projected climate changes include
an increased frequency, duration, and severity of droughts (Factor E),
thereby increasing the risk of interrupting the flow of Seven Hundred
Springs and the desiccation and mortality of this obligately aquatic
moss (Factor A). The amount of pumping from the Edwards-Trinity aquifer
is one of the most important factors influencing storage in the aquifer
and the spring flows on which the South Llano Springs moss relies.
Groundwater pumping is likely to increase as the human population grows
and as the severity and duration of droughts increases. Prolonged
drought (Factor E), in combination with increased pumping from the
Edwards-Trinity aquifer (Factor E), further increase the probability of
interrupting the flow of Seven Hundred Springs (Factor A) and,
consequently, the probability of extinction of the South Llano Springs
moss.
The South Llano Springs moss has little or no genetic diversity
(Factor E) because this species likely consists of clones of one or a
few male individuals and is no longer capable of sexual reproduction
(Factor E). Consequently, the species has very low representation and
likely has very little ability to adapt to environmental changes. In
addition the South Llano Springs moss has poor redundancy because there
is only one small population remaining. One drought event that reduced
the flow of Seven Hundred Springs could result in the extirpation of
this species.
We find that the South Llano Springs moss is presently in danger of
extinction throughout its entire range based on the small remaining
single population that is likely genetically compromised. This status
puts the species on the brink of extinction where normal stochastic
events, such as drought, flooding, or a human-caused drop in the
aquifer level could lead to further decline or loss of the species
entirely. The only other known population has not been observed since
1971 and is considered likely extirpated. This one remaining population
could be affected by a variety of threats acting in combination to
reduce the overall viability of the species. The risk of extinction is
high because the remaining population is small, with no known potential
for natural recolonization. We find that a threatened species status is
not appropriate for the South Llano Springs moss because of the
species' current precarious condition due to its contracted range,
small population size, and likely compromised genetics, because these
stressors are severe, ongoing, and expected to continue into the
future.
Therefore, after assessing the best available information, we
determine that the South Llano Springs moss is in danger of extinction
throughout all of its range.
Status Throughout a Significant Portion of Its Range
Under the Act and our implementing regulations, a species may
warrant listing if it is in danger of extinction or likely to become so
in the foreseeable future throughout all or a significant portion of
its range. We have determined that the South Llano Springs moss is in
danger of extinction throughout all of its range, and accordingly, did
not undertake an analysis of any significant portion of its range.
Because we have determined that the South Llano Springs moss warrants
listing as an endangered species throughout all of its range, our
determination is consistent with the decision in Center for Biological
Diversity v. Everson, 2020 WL 437289 (D.D.C. Jan. 28, 2020), in which
the court vacated the aspect of the 2014 Significant Portion of its
Range Policy that provided the Services do not undertake an analysis of
significant portions of a species' range if the species warrants
listing as threatened throughout all of its range.
Determination of Status
Our review of the best available scientific and commercial
information indicates that the South Llano Springs moss meets the
definition of an endangered species. Therefore, we propose to list the
South Llano Springs moss as an endangered species in accordance with
sections 3(6) and 4(a)(1) of the Act.
Available Conservation Measures
Conservation measures provided to species listed as endangered or
threatened species under the Act include recognition, recovery actions,
requirements for Federal protection, and prohibitions against certain
practices. Recognition through listing results in public awareness, and
conservation by Federal, State, tribal, and local agencies, private
organizations, and individuals. The Act encourages cooperation with the
States and other countries and calls for recovery actions to be carried
out for listed species. The protection required by Federal agencies and
the prohibitions against certain activities are discussed, in part,
below.
The primary purpose of the Act is the conservation of endangered
and threatened species and the ecosystems upon which they depend. The
ultimate goal of such conservation efforts is the recovery of these
listed species, so that they no longer need the protective measures of
the Act. Section 4(f) of the Act calls for the Service to develop and
implement recovery plans for the conservation of endangered and
threatened species. The recovery planning process involves the
identification of actions that are necessary to halt or reverse the
species' decline by addressing the threats to its survival and
recovery. The goal of this process is to restore listed species to a
point where they are secure, self-sustaining, and functioning
components of their ecosystems.
Recovery planning consists of preparing draft and final recovery
plans, beginning with the development of a recovery outline and making
it available to the public within 30 days of a final listing
determination. The recovery outline guides the immediate implementation
of urgent recovery actions and describes the process to be used to
develop a recovery plan. Revisions of the plan may be done to address
continuing or new threats to the species, as new substantive
information becomes available. The recovery plan also identifies
recovery criteria for review of when a species may be ready
[[Page 53616]]
for reclassification from endangered to threatened (``downlisting'') or
removal from protected status (``delisting''), and methods for
monitoring recovery progress. Recovery plans also establish a framework
for agencies to coordinate their recovery efforts and provide estimates
of the cost of implementing recovery tasks. Recovery teams (composed of
species experts, Federal and State agencies, nongovernmental
organizations, and stakeholders) are often established to develop
recovery plans. When completed, the recovery outline, draft recovery
plan, and the final recovery plan will be available on our website
(http://www.fws.gov/endangered), or from our Austin Ecological Services
Field Office (see FOR FURTHER INFORMATION CONTACT).
Implementation of recovery actions generally requires the
participation of a broad range of partners, including other Federal
agencies, States, Tribes, nongovernmental organizations, businesses,
and private landowners. Examples of recovery actions include habitat
restoration (e.g., restoration of native vegetation), research, captive
propagation and reintroduction, and outreach and education. The
recovery of many listed species cannot be accomplished solely on
Federal lands because their range may occur primarily or solely on non-
Federal lands. To achieve recovery of these species requires
cooperative conservation efforts on private, State, and tribal lands.
If this species is listed, funding for recovery actions will be
available from a variety of sources, including Federal budgets, State
programs, and cost share grants for non-Federal landowners, the
academic community, and nongovernmental organizations. In addition,
pursuant to section 6 of the Act, the State of Texas would be eligible
for Federal funds to implement management actions that promote the
protection or recovery of the South Llano Springs moss. Information on
our grant programs that are available to aid species recovery can be
found at: http://www.fws.gov/grants.
Although the South Llano Springs moss is only proposed for listing
under the Act at this time, please let us know if you are interested in
participating in recovery efforts for this species. Additionally, we
invite you to submit any new information on this species whenever it
becomes available and any information you may have for recovery
planning purposes (see FOR FURTHER INFORMATION CONTACT).
Section 7(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. Regulations implementing this
interagency cooperation provision of the Act are codified at 50 CFR
part 402. Section 7(a)(4) of the Act requires Federal agencies to
confer with the Service on any action that is likely to jeopardize the
continued existence of a species proposed for listing or result in
destruction or adverse modification of proposed critical habitat. If a
species is listed subsequently, section 7(a)(2) of the Act requires
Federal agencies to ensure that activities they authorize, fund, or
carry out are not likely to jeopardize the continued existence of the
species or destroy or adversely modify its critical habitat. If a
Federal action may affect a listed species or its critical habitat, the
responsible Federal agency must enter into consultation with the
Service.
Federal agency actions within the species' habitat that may require
conference or consultation or both as described in the preceding
paragraph include management and any other landscape-altering
activities on Federal lands, management and conservation projects
conducted on private lands with support from the U.S. Fish and Wildlife
Service Partners for Fish and Wildlife Program; issuance of section 404
Clean Water Act (33 U.S.C. 1251 et seq.) permits by the U.S. Army Corps
of Engineers; construction and maintenance of roads or highways by the
Federal Highway Administration; construction and maintenance of
railways by the Federal Railroad Administration; and discharge permits
from the Environmental Protection Agency.
The Act and its implementing regulations set forth a series of
general prohibitions and exceptions that apply to endangered plants.
The prohibitions of section 9(a)(2) of the Act, codified at 50 CFR
17.61, make it illegal for any person subject to the jurisdiction of
the United States to: Import or export; remove and reduce to possession
from areas under Federal jurisdiction; maliciously damage or destroy on
any such area; remove, cut, dig up, or damage or destroy on any other
area in knowing violation of any law or regulation of any State or in
the course of any violation of a State criminal trespass law; deliver,
receive, carry, transport, or ship in interstate or foreign commerce,
by any means whatsoever and in the course of a commercial activity; or
sell or offer for sale in interstate or foreign commerce an endangered
plant. Certain exceptions apply to employees of the Service, the
National Marine Fisheries Service, other Federal land management
agencies, and State conservation agencies.
We may issue permits to carry out otherwise prohibited activities
involving endangered plants under certain circumstances. Regulations
governing permits are codified at 50 CFR 17.62. With regard to
endangered plants, a permit may be issued for scientific purposes or
for enhancing the propagation or survival of the species. There are
also certain statutory exemptions from the prohibitions, which are
found in sections 9 and 10 of the Act.
It is our policy, as published in the Federal Register on July 1,
1994 (59 FR 34272), to identify to the maximum extent practicable at
the time a species is listed, those activities that would or would not
constitute a violation of section 9 of the Act. The intent of this
policy is to increase public awareness of the effect of a proposed
listing on proposed and ongoing activities within the range of the
species proposed for listing. Based on the best available information,
the following actions are unlikely to result in a violation of section
9, if these activities are carried out in accordance with existing
regulations and permit requirements; this list is not comprehensive:
(1) Recreational use of the streams, such as fishing, swimming, and
canoeing, as these activities normally take place in the river or on
the river bank and not in the spring itself, and;
(2) Normal residential landscaping activities as these activities
do not take place in the spring, nor do they affect the quantity or
quality of water in the spring.
Based on the best available information, the following activities
may potentially result in a violation of section 9 of the Act if they
are not authorized in accordance with applicable law; this list is not
comprehensive:
(1) Removing, cutting, digging up, or damaging or destroying the
South Llano Springs moss in knowing violation of any law or regulation
of the state of Texas or in the course of any violation of a State
criminal trespass law;
(2) Importing the South Llano Springs moss into, or exporting from,
the United States;
(3) Delivering, receiving, carrying, transporting, or shipping the
South Llano Springs moss in interstate or foreign commerce, by any
means and in the course of a commercial activity, and;
(4) Selling or offering the South Llano Springs moss for sale in
interstate or foreign commerce.
Questions regarding whether specific activities would constitute a
violation of
[[Page 53617]]
section 9 of the Act should be directed to the Austin Ecological
Services Field Office (see FOR FURTHER INFORMATION CONTACT).
II. Critical Habitat
Background
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Our regulations at 50 CFR 424.02 define the geographical area
occupied by the species as an area that may generally be delineated
around species' occurrences, as determined by the Secretary (i.e.,
range). Such areas may include those areas used throughout all or part
of the species' life cycle, even if not used on a regular basis (e.g.,
migratory corridors, seasonal habitats, and habitats used periodically,
but not solely by vagrant individuals).
Conservation, as defined under section 3 of the Act, means to use
and the use of all methods and procedures that are necessary to bring
an endangered or threatened species to the point at which the measures
provided pursuant to the Act are no longer necessary. Such methods and
procedures include, but are not limited to, all activities associated
with scientific resources management such as research, census, law
enforcement, habitat acquisition and maintenance, propagation, live
trapping, and transplantation, and, in the extraordinary case where
population pressures within a given ecosystem cannot be otherwise
relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the requirement that 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. Designation also does not allow the government
or public to access private lands, nor does designation require
implementation of restoration, recovery, or enhancement measures by
non-Federal landowners. Where a landowner requests Federal agency
funding or authorization for an action that may affect a listed species
or critical habitat, the Federal agency would be required to consult
with the Service under section 7(a)(2) of the Act. However, even if the
Service were to conclude that the proposed activity would result in
destruction or adverse modification of the critical habitat, the
Federal action agency and the landowner are not required to abandon the
proposed activity, or to restore or recover the species; instead, they
must implement ``reasonable and prudent alternatives'' to avoid
destruction or adverse modification of critical habitat.
Under the first prong of the Act's definition of critical habitat,
areas within the geographical area occupied by the species at the time
it was listed are included in a critical habitat designation if they
contain physical or biological features (1) which are essential to the
conservation of the species and (2) which may require special
management considerations or protection. For these areas, critical
habitat designations identify, to the extent known using the best
scientific and commercial data available, those physical or biological
features that are essential to the conservation of the species (such as
space, food, cover, and protected habitat). In identifying those
physical or biological features that occur in specific occupied areas,
we focus on the specific features that are essential to support the
life-history needs of the species, including, but not limited to, water
characteristics, soil type, 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 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
[[Page 53618]]
species, both inside and outside the critical habitat designation, will
continue to be subject to: (1) Conservation actions implemented under
section 7(a)(1) of the Act; (2) regulatory protections afforded by the
requirement in section 7(a)(2) of the Act for Federal agencies to
ensure their actions are not likely to jeopardize the continued
existence of any endangered or threatened species; and (3) the
prohibitions found in section 9 of the Act. Federally funded or
permitted projects affecting listed species outside their designated
critical habitat areas may still result in jeopardy findings in some
cases. These protections and conservation tools will continue to
contribute to recovery of this species. Similarly, critical habitat
designations made on the basis of the best available information at the
time of designation will not control the direction and substance of
future recovery plans, habitat conservation plans (HCPs), or other
species conservation planning efforts if new information available at
the time of these planning efforts calls for a different outcome.
Prudency Determination
Section 4(a)(3) of the Act, as amended, and implementing
regulations (50 CFR 424.12), require that, to the maximum extent
prudent and determinable, the Secretary shall designate critical
habitat at the time the species is determined to be an endangered or
threatened species. Our regulations (50 CFR 424.12(a)(1)) state that
the Secretary may, but is not required to, determine that a designation
would not be prudent in the following circumstances:
(i) The species is threatened by taking or other human activity and
identification of critical habitat can be expected to increase the
degree of such threat to the species;
(ii) The present or threatened destruction, modification, or
curtailment of a species' habitat or range is not a threat to the
species, or threats to the species' habitat stem solely from causes
that cannot be addressed through management actions resulting from
consultations under section 7(a)(2) of the Act;
(iii) Areas within the jurisdiction of the United States provide no
more than negligible conservation value, if any, for a species
occurring primarily outside the jurisdiction of the United States;
(iv) No areas meet the definition of critical habitat; or
(v) The Secretary otherwise determines that designation of critical
habitat would not be prudent based on the best scientific data
available.
As discussed above under Proposed Listing Determination, there is
currently no imminent threat of collection or vandalism identified
under Factor B for this species, and identification and mapping of
critical habitat is not expected to initiate any such threat. In our
SSA and this proposed listing determination, we determined that the
present or threatened destruction, modification, or curtailment of
habitat or range is a threat to the South Llano Springs moss and that
those threats in some way can be addressed by section 7(a)(2)
consultation measures. The species occurs wholly in the jurisdiction of
the United States, and we are able to identify an area that meets the
definition of critical habitat. Therefore, because none of the
circumstances enumerated in our regulations at 50 CFR 424.12(a)(1) have
been met, and because there are no other circumstances the Secretary
has identified for which this designation of critical habitat would be
not prudent, we have determined that the designation of critical
habitat is prudent for the South Llano Springs moss.
Critical Habitat Determinability
Having determined that designation is prudent, under section
4(a)(3) of the Act we must find whether critical habitat for the South
Llano Springs moss is determinable. Our regulations at 50 CFR
424.12(a)(2) state that critical habitat is not determinable when one
or both of the following situations exist:
(i) Data sufficient to perform required analyses are lacking, or
(ii) The biological needs of the species are not sufficiently well
known to identify any area that meets the definition of ``critical
habitat.''
When critical habitat is not determinable, the Act allows the
Service an additional year to publish a critical habitat designation
(16 U.S.C. 1533(b)(6)(C)(ii)).
We reviewed the available information pertaining to the biological
needs of the species and habitat characteristics where this species is
located. This and other information represent the best scientific data
available and led us to conclude that the designation of critical
habitat is determinable for the South Llano Springs moss.
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.
Summary of Essential Physical or Biological Features
We derive the specific physical or biological features essential to
the
[[Page 53619]]
conservation of the South Llano Springs moss from studies of the
species' habitat, ecology, and life history as described below.
Additional information can be found in the SSA report available at
http://www.regulations.gov under Docket No. FWS-R2-ES-2020-0015. We
have determined that the following physical or biological features are
essential to the conservation of the South Llano Springs moss:
(1) The uninterrupted flow of spring water supplied by the Edwards-
Trinity aquifer within the South Llano watershed.
(2) Relatively constant water temperature due to proximity to the
point of spring outflow.
(3) A substrate of calcareous or travertine rock not more than 15
centimeters (cm) (6 inches (in)) below the surface of the water.
(4) Contaminant and sediment levels that do not exceed the
tolerance limits of South Llano Springs moss and associated plant and
animal species.
Special Management Considerations or Protection
When designating critical habitat, we assess whether the specific
areas within the geographical area occupied by the species at the time
of listing contain features which are essential to the conservation of
the species and which may require special management considerations or
protection.
The features essential to the conservation of this species may
require special management considerations or protection to reduce the
following stressors: Reduction or loss of spring flow, erosion, and
sedimentation. Management activities that could ameliorate these
stressors include (but are not limited to): Prescribed fire, brush
management, and grazing management to increase infiltration into the
Edwards-Trinity aquifer and reduce runoff and subsequent flooding.
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. We are not currently proposing to
designate any areas outside the geographical area occupied by the
species because we have not identified any unoccupied areas that meet
the definition of critical habitat. While we acknowledge that the
conservation of the species will depend on increasing the number of
sites, we are unable at this time to delineate any specific unoccupied
areas that are essential to the species' conservation. For an area to
be considered essential unoccupied habitat, we must have reasonable
certainty both that the area will contribute to the conservation of the
species and that the area contains one of more of the physical or
biological features essential to the conservation of the species. The
exact location of the Redfearn site is unknown and, although there are
a number of other large springs emerging from the Edwards-Trinity
aquifer, it is unknown if these sites would be biologically suitable
for the species. In addition, there is uncertainty that the species
could be transplanted successfully if suitable sites existed for
reintroduction. Finally, the specific areas needed for conservation may
depend in part on landowner willingness to restore and maintain the
species' habitat in these areas.
In summary, for areas within the geographic area occupied by the
species at the time of listing, we delineated critical habitat unit
boundaries by evaluating the area of spring flow and submerged
limestone within the geographic area occupied at the time of listing.
When determining proposed critical habitat boundaries, we made
every effort to avoid including developed areas such as lands covered
by buildings, pavement, and other structures because such lands lack
physical or biological features necessary for the South Llano Springs
moss. The scale of the maps we prepared under the parameters for
publication within the Code of Federal Regulations may not reflect the
exclusion of such developed lands. Any such lands inadvertently left
inside critical habitat boundaries shown on the maps of this proposed
rule have been excluded by text in the proposed rule and are not
proposed for designation as critical habitat. Therefore, if the
critical habitat is finalized as proposed, a Federal action involving
these lands would not trigger section 7 consultation with respect to
critical habitat and the requirement of no adverse modification unless
the specific action would affect the physical or biological features in
the adjacent critical habitat.
We propose to designate as critical habitat lands that we have
determined are occupied at the time of listing (i.e., currently
occupied) and contain one or more of the physical or biological
features that are essential to support life-history processes of the
species.
We propose one unit for designation based on one or more of the
physical or biological features being present to support the South
Llano Springs moss' life-history processes. This unit contains all of
the identified physical or biological features and supports multiple
life-history processes.
The critical habitat designation is defined by the map, as modified
by any accompanying regulatory text, presented at the end of this
document under Proposed Regulation Promulgation. We include more
detailed information on the boundaries of the critical habitat
designation in the preamble of this document. We will make the
coordinates or plot points or both on which the map is based available
to the public at http://www.regulations.gov under Docket No. FWS-R2-ES-
2020-0015, on our internet site at https://www.fws.gov/southwest/es/AustinTexas/, and at the field office responsible for the designation
(see FOR FURTHER INFORMATION CONTACT).
Proposed Critical Habitat Designation
We propose to designate one unit of approximately 0.19 ha (0.48 ac)
as critical habitat for the South Llano Springs moss, labeled Upper
South Llano River Unit in Table 1 (below). The critical habitat area we
describe below constitutes our current best assessment of areas that
meet the definition of critical habitat for the South Llano Springs
moss.
[[Page 53620]]
Table 1--Proposed Critical Habitat Unit for the South Llano Springs Moss
[Area estimates reflect all land within critical habitat unit boundaries]
----------------------------------------------------------------------------------------------------------------
Size of unit
Unit Land ownership by type in hectares Occupied?
(acres)
----------------------------------------------------------------------------------------------------------------
Upper South Llano River................ Private.................. 0.19 (0.48) Yes.
----------------------------------------------------------------------------------------------------------------
We present a brief description of the proposed unit, and the
reasons why it meets the definition of critical habitat for the South
Llano Springs moss, below.
Upper South Llano River Unit
The Upper South Llano River Unit consists of 0.19 ha (0.48 ac)
within the outflow area of Seven Hundred Springs, in northeastern
Edwards County, Texas. This unit extends from the points of discharge
about 10 m (33 ft) downslope to the South Llano River, and spans a
length of about 100 m (328 ft) along the river. The species was last
documented at this site in 1979, and the unit is considered occupied.
This entire unit is on privately owned land. This unit contains all of
the physical or biological features essential to the conservation of
the species. The physical or biological features in this unit may
require special management consideration due to groundwater pumping
causing loss or reduction of springflow flood-control projects; and
development of areas adjacent to or within proposed critical habitat.
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that any action they fund, authorize, or carry out
is not likely to jeopardize the continued existence of any endangered
species or threatened species or result in the destruction or adverse
modification of designated critical habitat of such species. In
addition, section 7(a)(4) of the Act requires Federal agencies to
confer with the Service on any agency action which is likely to
jeopardize the continued existence of any species proposed to be listed
under the Act or result in the destruction or adverse modification of
proposed critical habitat.
We published a final rule 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
actions not affecting listed species or critical habitat--and actions
on State, tribal, local, or private lands that are not federally
funded, authorized, or carried out by a Federal agency--do not require
section 7 consultation.
Compliance with the requirements of section 7(a)(2) is documented
through our issuance of:
(1) A concurrence letter for Federal actions that may affect, but
are not likely to adversely affect, listed species or critical habitat;
or
(2) A biological opinion for Federal actions that may affect, and
are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is
likely to jeopardize the continued existence of a listed species and/or
destroy or adversely modify critical habitat, we provide reasonable and
prudent alternatives to the project, if any are identifiable, that
would avoid the likelihood of jeopardy and/or destruction or adverse
modification of critical habitat. We define ``reasonable and prudent
alternatives'' (at 50 CFR 402.02) as alternative actions identified
during consultation that:
(1) Can be implemented in a manner consistent with the intended
purpose of the action,
(2) Can be implemented consistent with the scope of the Federal
agency's legal authority and jurisdiction,
(3) Are economically and technologically feasible, and
(4) Would, in the Service Director's opinion, avoid the likelihood
of jeopardizing the continued existence of the listed species and/or
avoid the likelihood of destroying or adversely modifying critical
habitat.
Reasonable and prudent alternatives can vary from slight project
modifications to extensive redesign or relocation of the project. Costs
associated with implementing a reasonable and prudent alternative are
similarly variable.
Regulations at 50 CFR 402.16 set forth requirements for Federal
agencies to reinitiate 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.
[[Page 53621]]
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 habitat, 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, actions that
would impact the Edwards-Trinity aquifer and the springs and streams
within the Hydrologic Unit Code (HUC)-12 watersheds of Paint Creek,
Bluff Creek, and Little Paint Creek or within the upper South Llano
River HUC-8 watershed. Depending on the activity and location, these
actions could include, but are not limited to, groundwater pumping;
discharge of contaminants; discharge of dredge or fill material;
construction and maintenance of roads, railroads, and pipelines; and
conservation and habitat management, which may include thinning of ashe
juniper (Juniperus ashei), prescribed burning, and control of invasive
aquatic plants, such as elephant ear (Colocassia esculenta). Potential
effects of these activities include reduced spring flow at Seven
Hundred Springs, increased runoff, flash flooding and scouring along
the South Llano River, and contamination of the aquifer with toxic
substances or excessive nutrient levels.
Exemptions
Application of Section 4(a)(3) of the Act
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 [INRMP] prepared under
section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary
determines in writing that such plan provides a benefit to the species
for which critical habitat is proposed for designation.'' There are no
Department of Defense (DoD) lands with a completed INRMP within the
proposed critical habitat designation.
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.
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. Accordingly, we have prepared a draft economic
analysis concerning the proposed critical habitat designation, which is
available for review and comment (see ADDRESSES, above). To assess the
probable economic impacts of a designation, we must first evaluate
specific land uses or activities and projects that may occur in the
area of the critical habitat. We then must evaluate the impacts that a
specific critical habitat designation may have on restricting or
modifying specific land uses or activities for the benefit of the
species and its habitat within the areas proposed. We then identify
which conservation efforts may be the result of the species being
listed under the Act versus those attributed solely to the designation
of critical habitat for this particular species. The probable economic
impact of a proposed critical habitat designation is analyzed by
comparing scenarios both ``with critical habitat'' and ``without
critical habitat.''
The ``without critical habitat'' scenario represents the baseline
for the analysis, which includes the existing regulatory and socio-
economic burden imposed on landowners, managers, or other resource
users potentially affected by the designation of critical habitat
(e.g., under the Federal listing as well as other Federal, State, and
local regulations). The baseline, therefore, represents the costs of
all efforts attributable to the listing of the species under the Act
(i.e., conservation of the species and its habitat incurred regardless
of whether critical habitat is designated). The ``with critical
habitat'' scenario describes the incremental impacts associated
specifically with the designation of critical habitat for the species.
The incremental conservation efforts and associated impacts would not
be expected without the designation of critical habitat for the
species. In other words, the incremental costs are those attributable
solely to the designation of critical habitat, above and beyond the
baseline costs. These are the costs we use when evaluating the benefits
of inclusion and exclusion of particular areas from the final
designation of critical habitat should we choose to conduct a
discretionary 4(b)(2) exclusion analysis.
For this particular designation, we developed an incremental
effects memorandum (IEM) considering the probable incremental economic
impacts that may result from this proposed designation of critical
habitat. The information contained in our IEM was then used to develop
a screening analysis of the probable effects of the designation of
critical habitat for the South Llano Springs moss (IEc. 2020, entire).
We began by conducting a screening analysis of the proposed
designation of critical habitat in order to focus our analysis on the
key factors that are likely to result in incremental economic impacts.
The purpose of the screening analysis is to filter out particular
geographic areas of critical habitat that are already subject to such
protections and are, therefore, unlikely to incur incremental economic
impacts. In particular, the screening analysis considers baseline costs
(i.e., absent critical habitat designation) and includes probable
economic impacts where land and water use may be subject to
conservation plans, land management plans, best management practices,
or regulations that protect the habitat area as a result of the Federal
listing status of the species. Ultimately, the screening analysis
allows us to focus our analysis on evaluating the specific areas or
sectors that may incur probable incremental economic impacts as a
result of the designation. The screening analysis also assesses whether
units are unoccupied by the species and may require additional
management or conservation efforts as a result of the critical habitat
designation for the species; these additional efforts may incur
incremental economic impacts.
[[Page 53622]]
This screening analysis combined with the information contained in our
IEM are what we consider our draft economic analysis (DEA) of the
proposed critical habitat designation for the South Llano Springs moss;
our DEA is summarized in the narrative below.
Executive Orders (E.O.s) 12866 and 13563 direct Federal agencies to
assess the costs and benefits of available regulatory alternatives in
quantitative (to the extent feasible) and qualitative terms. Consistent
with the E.O. regulatory analysis requirements, our effects analysis
under the Act may take into consideration impacts to both directly and
indirectly affected entities, where practicable and reasonable. If
sufficient data are available, we assess to the extent practicable the
probable impacts to both directly and indirectly affected entities. As
part of our screening analysis, we considered the types of economic
activities that are likely to occur within the areas likely affected by
the critical habitat designation. In our evaluation of the probable
incremental economic impacts that may result from the proposed
designation of critical habitat for the South Llano Springs moss, first
we identified, in the IEM dated January 7, 2020, probable incremental
economic impacts associated with the following categories of
activities: (1) Discharge permits (Environmental Protection Agency and
U.S. Army Corps of Engineers); (2) stream dams and diversions, and
dredge and fill of waterways (Environmental Protection Agency and U.S.
Army Corps of Engineers); (3) transportation (U.S. Department of
Transporation, Federal Highway Administration, and Federal Railroad
Administration); and (4) conservation and habitat management (U.S. Fish
and Wildlfie Service). We considered each industry or category
individually. Additionally, we considered whether their activities have
any Federal involvement. Critical habitat designation generally will
not affect activities that do not have any Federal involvement; under
the Act, designation of critical habitat only affects activities
conducted, funded, permitted, or authorized by Federal agencies. If we
list this species, in areas where the South Llano Springs moss is
present, Federal agencies would be required to consult with the Service
under section 7 of the Act on activities they fund, permit, or
implement that may affect the species. If, when we list this species,
we also finalize this proposed critical habitat designation,
consultations to avoid the destruction or adverse modification of
critical habitat would be incorporated into the existing consultation
process.
In our IEM, we attempted to clarify the distinction between the
effects that will result from the species being listed and those
attributable to the critical habitat designation (i.e., difference
between the jeopardy and adverse modification standards) for the South
Llano Springs moss' critical habitat. Because the designation of
critical habitat for the South Llano Springs moss is proposed
concurrently with the listing, it has been our experience that it is
more difficult to discern which conservation efforts are attributable
to the species being listed and those which will result solely from the
designation of critical habitat. However, the following specific
circumstances in this case help to inform our evaluation: (1) The
essential physical or biological features identified for critical
habitat are the same features essential for the life requisites of the
species, and (2) any actions that would result in sufficient harm or
harassment to constitute jeopardy to the South Llano Springs moss would
also likely adversely affect the essential physical or biological
features of critical habitat. The IEM outlines our rationale concerning
this limited distinction between baseline conservation efforts and
incremental impacts of the designation of critical habitat for this
species. This evaluation of the incremental effects has been used as
the basis to evaluate the probable incremental economic impacts of this
proposed designation of critical habitat.
The proposed critical habitat designation for the South Llano
Springs moss includes one unit of occupied critical habitat, totaling
0.19 ha (0.48 ac), on private land. Because this area is occupied, any
actions that may affect the species or its habitat would also affect
designated critical habitat. As such, all activities with a Federal
nexus occurring within the proposed critical habitat would be subject
to section 7 consultation requirements regardless of critical habitat
designation due to the presence of the listed species. Project
modifications requested to avoid adverse modification are also likely
to be the same as those needed to avoid jeopardy to the South Llano
Springs moss. Therefore, only administrative costs are expected when
considering adverse modification in section 7 consultations due to the
proposed critical habitat designation. While this additional analysis
would require time and resources by both the Federal action agency and
the Service, we believe that these costs would be administrative in
nature and would not be significant. Based upon past consultations in
the area, it is conservatively estimated that three or fewer section 7
consultation actions (approximately one formal consultation, one
informal consultation, and one technical assistance request) will occur
annually in the proposed critical habitat area. These may include
consultations with the U.S. Army Corps of Engineers, U.S. Department of
Transportation, U.S. Environmental Protection Agency, and the U.S. Fish
and Wildlife Service for fish passage projects, riparian restoration,
upland habitat restoration, prescribed fire, and brush management. The
total annual incremental costs of critical habitat designation for the
South Llano Springs moss are anticipated to be approximately $8,100 per
year. Current development or other projects are not planned in the
proposed critical habitat area. Therefore, future probable incremental
economic impacts are not likely to exceed $100 million in any single
year, and impacts that are concentrated in any geographic area or
sector are not likely as a result of this critical habitat designation.
As we stated earlier, we are soliciting data and comments from the
public on the DEA, as well as all aspects of this proposed rule and our
required determinations. During the development of a final designation,
we will consider the information presented in the DEA and any
additional information on economic impacts received during the public
comment period to determine whether any specific areas should be
excluded from the final critical habitat designation on the basis of
economic impacts under authority of section 4(b)(2) and our
implementing regulations at 50 CFR 424.19. In particular, we may
exclude an area from critical habitat if we determine that the benefits
of excluding the area outweigh the benefits of including the area,
provided the exclusion will not result in the extinction of this
species.
Consideration of National Security Impacts
Section 4(a)(3)(B)(i) of the Act may not cover all DoD lands or
areas that pose potential national-security concerns (e.g., a DoD
installation that is 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,
[[Page 53623]]
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 cannot, however, automatically exclude requested areas. When
DoD, DHS, or another Federal agency requests exclusion from critical
habitat on the basis of national-security or homeland-security impacts,
it must provide a reasonably specific justification of an incremental
impact on national security that would result from the designation of
that specific area as critical habitat. That justification could
include demonstration of probable impacts, such as impacts to ongoing
border-security patrols and surveillance activities, or a delay in
training or facility construction, as a result of compliance with
section 7(a)(2) of the Act. If the agency requesting the exclusion does
not provide us with a reasonably specific justification, we will
contact the agency to recommend that it provide a specific
justification or clarification of its concerns relative to the probable
incremental impact that could result from the designation. If the
agency provides a reasonably specific justification, we will defer to
the expert judgment of DoD, DHS, or another Federal agency as to: (1)
Whether activities on its lands or waters, or its activities on other
lands or waters, have national-security or homeland-security
implications; (2) the importance of those implications; and (3) the
degree to which the cited implications would be adversely affected in
the absence of an exclusion. In that circumstance, in conducting a
discretionary 4(b)(2) exclusion analysis, we will give great weight to
national-security and homeland-security concerns in analyzing the
benefits of exclusion.
In preparing this proposal, we have determined that the land within
the proposed designation of critical habitat for the South Llano
Springs moss is not owned, managed, or used by DoD or DHS, and,
therefore, we anticipate no impact on national security or homeland
security. However, during the development of a final designation we
will consider any additional information received through the public
comment period on the impacts of the proposed designation on national
security or homeland security to determine whether any specific areas
should be excluded from the final critical habitat designation under
authority of section 4(b)(2) and our implementing regulations at 50 CFR
424.19.
Consideration of 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 discussed above. We consider a number of factors including
whether there are permitted conservation plans covering the species in
the area such as HCPs, safe harbor agreements (SHAs), or candidate
conservation agreements with assurances (CCAAs), or whether there are
non-permitted conservation agreements and partnerships that would be
encouraged by designation of, or exclusion from, critical habitat. In
addition, we look at the existence of tribal conservation plans and
partnerships and consider the government-to-government relationship of
the United States with tribal entities. We also consider any social
impacts that might occur because of the designation.
In preparing this proposal, we have determined that there are
currently no HCPs or other management plans for the South Llano Springs
moss, and the proposed designation does not include any tribal lands or
trust resources. We anticipate no impact on tribal lands, partnerships,
or HCPs from this proposed critical habitat designation. Additionally,
as described above, we are not proposing to exclude any particular
areas on the basis of impacts to national security or economic impacts.
During the development of a final designation, we will consider any
additional information received through the public comment period
regarding other relevant impacts to determine whether any specific
areas should be excluded from the final critical habitat designation
under authority of section 4(b)(2) and our implementing regulations at
50 CFR 424.19.
Required Determinations
Clarity of the Rule
We are required by Executive Orders 12866 and 12988 and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in ADDRESSES. To better help us
revise the rule, your comments should be as specific as possible. For
example, you should tell us the numbers of the sections or paragraphs
that are unclearly written, which sections or sentences are too long,
the sections where you feel lists or tables would be useful, etc.
Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) in the Office of Management and Budget will
review all significant rules. OIRA has determined that this rule is not
significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while
calling for improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The executive order directs agencies to consider regulatory approaches
that reduce burdens and maintain flexibility and freedom of choice for
the public where these approaches are relevant, feasible, and
consistent with regulatory objectives. E.O. 13563 emphasizes further
that regulations must be based on the best available science and that
the rulemaking process must allow for public participation and an open
exchange of ideas. We have developed this rule in a manner consistent
with these requirements.
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.
[[Page 53624]]
According to the Small Business Administration, small entities
include small organizations such as independent nonprofit
organizations; small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents; and small businesses (13 CFR 121.201). Small businesses
include manufacturing and mining concerns with fewer than 500
employees, wholesale trade entities with fewer than 100 employees,
retail and service businesses with less than $5 million in annual
sales, general and heavy construction businesses with less than $27.5
million in annual business, special trade contractors doing less than
$11.5 million in annual business, and agricultural businesses with
annual sales less than $750,000. To determine 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 the light of recent
court decisions, Federal agencies are required to evaluate the
potential incremental impacts of rulemaking only 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 would be directly
regulated if we adopt the proposed critical habitat 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 would be directly
regulated by this rulemaking, the Service certifies that, if made final
as proposed, this critical habitat designation will not have a
significant economic impact on a substantial number of small entities.
In summary, we have considered whether the proposed designation
would result in a significant economic impact on a substantial number
of small entities. For the above reasons and based on currently
available information, we certify that, if made final, this critical
habitat designation will not have a significant economic impact on a
substantial number of small business entities. Therefore, an initial
regulatory flexibility analysis is not required.
Energy Supply, Distribution, or Use--Executive Order 13211
Executive Order 13211 (Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use) requires
agencies to prepare Statements of Energy Effects when undertaking
certain actions. In our economic analysis, we did not find that the
designation of this proposed critical habitat would significantly
affect energy supplies, distribution, or use. Therefore, this action is
not a significant energy action, and no Statement of Energy Effects is
required.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following finding:
(1) This proposed rule would not produce a Federal mandate. In
general, a Federal mandate is a provision in legislation, statute, or
regulation that would impose an enforceable duty upon State, local, or
tribal governments, or the private sector, and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or tribal governments'' with two
exceptions. It excludes ``a condition of Federal assistance.'' It also
excludes ``a duty arising from participation in a voluntary Federal
program,'' unless the regulation ``relates to a then-existing Federal
program under which $500,000,000 or more is provided annually to State,
local, and tribal governments under entitlement authority,'' if the
provision would ``increase the stringency of conditions of assistance''
or ``place caps upon, or otherwise decrease, the Federal Government's
responsibility to provide funding,'' and the State, local, or tribal
governments ``lack authority'' to adjust accordingly. At the time of
enactment, these entitlement programs were: Medicaid; Aid to Families
with Dependent Children work programs; Child Nutrition; Food Stamps;
Social Services Block Grants; Vocational Rehabilitation State Grants;
Foster Care, Adoption Assistance, and Independent Living; Family
Support Welfare Services; and Child Support Enforcement. ``Federal
private sector mandate'' includes a regulation that ``would impose an
enforceable duty upon the private sector, except (i) a condition of
Federal assistance or (ii) a duty arising from participation in a
voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal Government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not destroy or adversely modify critical
habitat under section 7. While non-Federal entities that receive
Federal funding, assistance, or permits, or that otherwise require
approval or authorization from a Federal agency for an action, may be
indirectly impacted by the designation of critical habitat, the legally
binding duty to avoid destruction or adverse modification of critical
habitat rests squarely on the Federal agency. Furthermore, to the
extent that non-Federal entities are indirectly impacted because they
receive Federal assistance or participate in a voluntary Federal aid
program, the Unfunded Mandates Reform Act would not apply, nor would
critical habitat shift the costs of the large entitlement programs
listed above onto State governments.
(2) We do not believe that this rule would significantly or
uniquely affect small governments because the unit is very small and is
entirely on private land. Small governments would be affected only to
the extent that any programs having Federal funds, permits, or other
authorized activities must ensure that their actions would not
adversely affect the designated critical habitat. The designation of
critical habitat imposes no obligations on State or local governments.
Therefore, a Small Government Agency Plan is not required.
Takings--Executive Order 12630
In accordance with E.O. 12630 (Government Actions and Interference
with Constitutionally Protected Private Property Rights), we have
analyzed the potential takings implications of designating critical
habitat for the South Llano Springs moss in a takings implications
assessment. The Act does not authorize the Service to regulate private
actions on private lands or
[[Page 53625]]
confiscate private property as a result of critical habitat
designation. Designation of critical habitat does not affect land
ownership, or establish any closures or restrictions on use of or
access to the designated areas. Furthermore, the designation of
critical habitat does not affect landowner actions that do not require
Federal funding or permits, nor does it preclude development of habitat
conservation programs or issuance of incidental take permits to permit
actions that do require Federal funding or permits to go forward.
However, Federal agencies are prohibited from carrying out, funding, or
authorizing actions that would destroy or adversely modify critical
habitat. A takings implications assessment has been completed for the
proposed designation of critical habitat for the South Llano Springs
moss, and it concludes that, if adopted, this designation of critical
habitat does not pose significant takings implications for lands within
or affected by the designation.
Federalism--Executive Order 13132
In accordance with E.O. 13132 (Federalism), this proposed rule does
not have significant Federalism effects. A federalism summary impact
statement is not required. In keeping with Department of the Interior
and Department of Commerce policy, we requested information from, and
coordinated development of this proposed critical habitat designation
with, appropriate State resource agencies. 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 proposed rule does
not have substantial direct effects either on the States, or on the
relationship between the national government and the States, or on the
distribution of powers and responsibilities among the various levels of
government. The proposed designation may have some benefit to these
governments because the areas that contain the features essential to
the conservation of the species are more clearly defined, and the
physical or biological features of the habitat necessary for the
conservation of the species are specifically identified. This
information does not alter where and what federally sponsored
activities may occur. However, it may assist State and local
governments in long-range planning because they no longer have to wait
for case-by-case section 7 consultations to occur.
Where State and local governments require approval or authorization
from a Federal agency for actions that may affect critical habitat,
consultation under section 7(a)(2) of the Act would be required. While
non-Federal entities that receive Federal funding, assistance, or
permits, or that otherwise require approval or authorization from a
Federal agency for an action, may be indirectly impacted by the
designation of critical habitat, the legally binding duty to avoid
destruction or adverse modification of critical habitat rests squarely
on the Federal agency.
Civil Justice Reform--Executive Order 12988
In accordance with Executive Order 12988 (Civil Justice Reform),
the Office of the Solicitor has determined that the rule does not
unduly burden the judicial system and that it meets the requirements of
sections 3(a) and 3(b)(2) of the Order. We have proposed designating
critical habitat in accordance with the provisions of the Act. To
assist the public in understanding the habitat needs of the species,
this proposed rule identifies the elements of physical or biological
features essential to the conservation of the species. The proposed
area of designated critical habitat is presented on a map, and the
proposed rule provides several options for the interested public to
obtain more detailed location information, if desired.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This rule does not contain 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 (NEPA; 42 U.S.C. 4321 et seq.) in connection with designating
critical habitat under the Act. We published a notice outlining our
reasons for this determination in the Federal Register on October 25,
1983 (48 FR 49244). This position was upheld by the U.S. Court of
Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495
(9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)).
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994
(Government-to-Government Relations with Native American Tribal
Governments; 59 FR 22951), Executive Order 13175 (Consultation and
Coordination with Indian Tribal Governments), and the Department of the
Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. In accordance with
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species Act),
we readily acknowledge our responsibilities to work directly with
tribes in developing programs for healthy ecosystems, to acknowledge
that tribal lands are not subject to the same controls as Federal
public lands, to remain sensitive to Indian culture, and to make
information available to tribes. We have determined that no tribal
lands fall within the boundaries of the proposed designation of
critical habitat for the South Llano Springs moss, so no tribal lands
would be affected by the proposed designation.
References Cited
A complete list of references cited in this rulemaking is available
on the internet at http://www.regulations.gov and upon request from the
Austin Ecological Services Field Office (see FOR FURTHER INFORMATION
CONTACT).
Authors
The primary authors of this proposed rule are the staff members of
the Fish and Wildlife Service's Species Assessment Team and the Austin
Ecological Services Field Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Proposed Regulation Promulgation
Accordingly, we propose to amend part 17, subchapter B of chapter
I, title 50 of the Code of Federal Regulations, as set forth below:
PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
0
1. The authority citation for part 17 continues to read as follows:
[[Page 53626]]
Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless
otherwise noted.
0
2. Amend Sec. 17.12, in paragraph (h), the List of Endangered and
Threatened Plants, by:
0
a. Adding the heading ``Mosses'' to the end of the table; and
0
b. Adding an entry for ``Donrichardsia macroneuron'' under the new
heading ``Mosses''.
The additions read as follows:
Sec. 17.12 Endangered and threatened plants.
* * * * *
(h) * * *
----------------------------------------------------------------------------------------------------------------
Listing citations and
Scientific name Common name Where listed Status applicable rules
----------------------------------------------------------------------------------------------------------------
* * * * * * *
----------------------------------------------------------------------------------------------------------------
Mosses
----------------------------------------------------------------------------------------------------------------
Donrichardsia macroneuron....... South Llano Wherever found.... E [Federal Register
Springs moss. citation when
published as a final
rule]; 50 CFR
17.96(c).\CH\
----------------------------------------------------------------------------------------------------------------
0
3. Amend Sec. 17.96 by adding paragraph (c) to read as follows:
Sec. 17.96 Critical habitat--plants.
* * * * *
(c) Mosses. Family Brachytheciaceae: Donrichardsia macroneuron.
(1) Critical habitat is depicted for Edwards County, Texas, on the
map in this entry.
(2) Within this area, the physical or biological features essential
to the conservation of the South Llano Springs moss consist of the
following components:
(i) The uninterrupted flow of spring water supplied by the Edwards-
Trinity aquifer within the South Llano watershed;
(ii) Relatively constant water temperature due to proximity to the
point of spring outflow;
(iii) A substrate of calcareous or travertine rock not more than 15
cm (6 in) below the surface of the water; and
(iv) Contaminant and sediment levels that do not exceed the
tolerance limits of South Llano Springs moss and associated plant and
animal species.
(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 within the legal boundaries on
[EFFECTIVE DATE OF FINAL RULE].
(4) Critical habitat map units. Data layers defining the map unit
were created on a base of U.S. Geological Survey digital ortho-photo
quarter-quadrangles, and the critical habitat unit was then mapped
using Geographic Information System (GIS) mapping. The map in this
entry, as modified by any accompanying regulatory text, establishes the
boundaries of the critical habitat designation. The coordinates or plot
points or both on which the map is based are available to the public at
the Service's internet site at https://www.fws.gov/southwest/es/AustinTexas/, at http://www.regulations.gov at Docket No. FWS-R2-ES-
2020-0015, and at the field office responsible for this designation.
You may obtain field office location information by contacting one of
the Service regional offices, the addresses of which are listed at 50
CFR 2.2.
(5) Upper South Llano River Unit, Edwards County, Texas.
(i) General description: The Upper South Llano River Unit consists
of 0.19 hectares (0.48 acres) in Edwards County and is located on
private land along the upper South Llano River.
[[Page 53627]]
(ii) Map of Upper South Llano River Unit follows:
BILLING CODE 4333-15-P
[GRAPHIC] [TIFF OMITTED] TP28SE21.000
BILLING CODE 4333-15-C
Martha Williams,
Principal Deputy Director, Exercising the Delegated Authority of the
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2021-20924 Filed 9-27-21; 8:45 am]
BILLING CODE 4333-15-C