[Federal Register Volume 87, Number 128 (Wednesday, July 6, 2022)]
[Rules and Regulations]
[Pages 40115-40138]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-14312]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R4-ES-2020-0078; FF09E21000 FXES1111090FEDR 223]
RIN 1018-BE82
Endangered and Threatened Wildlife and Plants; Endangered Species
Status for the Canoe Creek Clubshell and Designation of Critical
Habitat
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), determine
that the Canoe Creek clubshell (Pleurobema athearni), a freshwater
mussel species endemic to a single watershed in north-central Alabama,
is an endangered species under the Endangered Species Act of 1973
(Act), as amended. We also designate critical habitat for the species
under the Act. In total, approximately 58.5 river kilometers (36.3
river miles) in St. Clair and Etowah Counties, Alabama, fall within the
boundaries of the critical habitat designation. This rule extends the
Act's protections to the species and its designated critical habitat.
DATES: This rule is effective August 5, 2022.
ADDRESSES: This final rule is available on the internet at https://www.regulations.gov under Docket No. FWS-R4-ES-2020-0078. Comments and
materials we received, as well as supporting documentation we used in
preparing this rule, are available for public inspection at https://www.regulations.gov at Docket No. FWS-R4-ES-2020-0078.
The coordinates or plot points from which the maps are generated
are included in the decision file for this critical habitat designation
and are available at https://www.regulations.gov at Docket No. FWS-R4-
ES-2020-0078 and on the Service's website at https://www.fws.gov/office/alabama-ecological-services. Any additional tools or supporting
information that we developed for the critical habitat designation will
also be available at the Service's website set out above and may also
be included in the preamble and at https://www.regulations.gov, or
both.
FOR FURTHER INFORMATION CONTACT: William J. Pearson, Field Supervisor,
U.S. Fish and Wildlife Service, Alabama Ecological Services Field
Office, 1208 Main Street, Daphne, AL 36526; telephone 251-441-5181.
Individuals in the United States who are deaf, deafblind, hard of
hearing, or have a speech disability may dial 711 (TTY, TDD, or
TeleBraille) to access telecommunications relay services. Individuals
outside the United States should use the relay services offered within
their country to make international calls to the point-of-contact in
the United States.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. Under the Act, a species warrants
listing if it meets the definition of an endangered species (in danger
of extinction throughout all or a significant portion of its range) or
a threatened species (likely to become endangered in the foreseeable
future throughout all or a significant portion of its range). We have
determined that the Canoe Creek clubshell meets the definition of an
endangered species; therefore, we are listing it as such. 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 and designation of
critical habitat can be completed only by issuing a rule.
What this document does. This rule lists the Canoe Creek clubshell
(Pleurobema athearni) as an endangered species and designates critical
habitat for this species under the Endangered Species Act. We are
designating critical habitat in 2 units totaling approximately 58.5
river kilometers (km) (36.3 river miles (mi)) in St. Clair and Etowah
Counties, Alabama.
The basis for our action. Under section 4(a)(1) of the Act, we may
determine that a species is an endangered or threatened species based
on 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 habitat
degradation through changes in water quality and quantity (Factor A),
increased sedimentation (Factor A), and climate events (Factor E) are
the primary threats to the species.
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.
Economic analysis. In accordance with section 4(b)(2) of the Act,
we prepared an economic analysis of the impacts of designating critical
habitat. We made the draft economic analysis
[[Page 40116]]
available for public comments on November 3, 2020 (85 FR 69540).
Peer review and public comment. We sought the expert opinions of
eight appropriate specialists with expertise in biology, habitat, and
threats to the species regarding the species status assessment report.
We did not receive any responses to our peer review requests. We also
considered all comments and information we received from the public
during the comment period for the proposed listing and critical habitat
for the Canoe Creek clubshell.
Previous Federal Actions
On November 3, 2020, we published in the Federal Register a
proposed rule (85 FR 69540) to list the Canoe Creek clubshell as an
endangered species and to designate critical habitat for the species
under the Act (16 U.S.C. 1531 et seq.). Please refer to that proposed
ruled for a detailed description of other previous Federal actions
concerning the Canoe Creek clubshell prior to the proposal's
publication.
Summary of Changes From the Proposed Rule
In preparing this final rule, we reviewed and fully considered
comments from the public on our November 3, 2020, proposed rule
regarding Canoe Creek clubshell (85 FR 69540). This final rule
incorporates minor, non-substantive changes to the critical habitat
unit descriptions (see Critical Habitat Designation) based on the
comments we received. However, the information we received during the
comment period for the proposed rule did not change our determination
that the Canoe Creek clubshell is an endangered species.
Supporting Documents
A species status assessment (SSA) team prepared an SSA report for
the Canoe Creek clubshell. The SSA team was composed of Service
biologists, in consultation with other species experts. The SSA report
represents a compilation of the best scientific and commercial data
available concerning the status of the species, including the impacts
of past, present, and future factors (both negative and beneficial)
affecting the species. The SSA report and other materials relating to
this rule can be found at https://www.regulations.gov under Docket No.
FWS-R4-ES-2020-0078.
Summary of Comments and Recommendations
In the November 3, 2020, proposed rule, we requested that
interested parties submit written comments by January 4, 2021. We also
contacted appropriate Federal and State agencies, scientific experts
and organizations, and other interested parties and invited them to
comment on the proposed rule. A newspaper notice inviting general
public comment was published in the The St. Clair Times legal notice
section on November 12, 2020. Although we invited requests for a public
hearing in the rule, we did not receive any requests for a public
hearing. All substantive information provided during the comment period
has either been incorporated directly into this final determination, in
the final economic analysis, or is addressed below.
Public Comments
We received 60 public comments in response to the proposed rule. We
reviewed all comments we received during the public comment period for
substantive issues and new information regarding the proposed rule. No
new information concerning the proposed listing and designation of
critical habitat for the Canoe Creek clubshell was received. Fifty-
eight commenters were supportive of the proposal to list the Canoe
Creek clubshell as endangered, to designate critical habitat, or both.
Two commenters provided information about forestry practices but
offered neither support nor opposition to the proposed rule. We did not
receive any comments in opposition of the proposed rule. Below, we
provide a summary of public comments we received; however, comments
outside the scope of the proposed rule and those without supporting
information did not warrant an explicit response and, thus, are not
presented here. Identical or similar comments have been consolidated
and a single response provided.
(1) Comment: One commenter indicated that the Service should
consider forestry best management practices (BMPs) as part of the
overall conservation benefit for the species and account for these
beneficial actions in any threat analysis as done in past rules. A
related comment recommended that the Service expressly recognize
silviculture conducted in accordance with State-approved BMPs as a
category of activities not expected to negatively impact the species'
conservation and recovery efforts in the final rule's preamble and that
these BMPs can ameliorate threats. Similarly, another commenter
recommended the Service include a discussion of not only the ability of
forest management to retain adequate conditions but also to improve
forest conditions, which may redound to the benefit of species.
Our Response: We have considered the conservation benefits of
implementing BMPs in our analyses. For example, in the SSA report, we
explain that forestry BMPs will likely reduce sediments originating
from forestry activities. We recognize that silvicultural operations
(forestry activities) are widely implemented in accordance with State-
approved best management practices (BMPs), and the adherence to these
BMPs broadly protects water quality particularly related to
sedimentation to an extent that does not impair the species'
conservation. Consistent with how we have addressed this issue in other
relevant rules, we identified normal silvicultural practices that are
carried out in accordance with BMPs as an example of an action that is
unlikely to result in a violation of section 9 and the use of BMPs as
an example of an activity that could ameliorate threats to physical and
biological features essential to the conservation of the Canoe Creek
clubshell. However, given the species' low abundance and lack of
successful reproduction and recruitment, the potential protection of
water quality provided by BMPs do not appear to offset factors of
decline. Therefore, we did not include a discussion of the ability of
forest management to improve forest conditions to an extent that they
may benefit the Canoe Creek clubshell.
(2) Comment: One commenter recommended that the description of
designated critical habitat be clarified to state that critical habitat
is limited to the bankfull width of the designated streams.
Our Response: We have clarified in this final rule that the
boundaries of critical habitat extend laterally to the bankfull width.
The critical habitat proposed for designation was not intended to
include adjacent terrestrial components.
(3) Comment: One commenter recommended the Service note in the
final rule its willingness to work collaboratively with forest owners
adjacent to designated critical habitat to develop streamlined
agreements, similar to Safe Harbor Agreements, that provided regulatory
assurances to landowners and recognize that forest management conducted
with approved BMPs will not be subject to enforcement under the
prohibition on take in section 9 of the ESA.
Our Response: It is our mission to collaborate with public and
private partners to conserve, protect, and enhance fish and wildlife
and the habitats on which they depend. Tools are available through
Section 10 of the
[[Page 40117]]
Act for private landowners to coordinate with the Service to facilitate
conservation of listed species and receive regulatory assurances and
certainty for their actions. A discussion of these conservation tools
is outside the scope of this rulemaking, but they will be identified
and discussed in forthcoming recovery documents. We agree that when
used and properly implemented, BMPs can offer a substantial improvement
to water quality compared to forestry operations where BMPs are not
properly implemented. Normal silvicultural practices that are carried
out in accordance with BMPs as an action that can maintain favorable
habitat conditions for the Canoe Creek clubshell. In addition, we
recognize that silvicultural operations are widely implemented in
accordance with State-approved best management practices (BMPs; as
reviewed by Cristan et al. 2018, entire), and the adherence to these
BMPs broadly protects water quality, particularly related to
sedimentation (as reviewed by Cristan et al. 2016, entire; Warrington
et al. 2017, entire; and Schilling et al. 2021, entire), to an extent
that does not impair the species' conservation. However, if adverse
effects to listed species or critical habitat are likely or if take is
reasonably certain to occur, formal consultation under section 7 with
an accompanying biological opinion or a take permit under section 10 of
the Act would be necessary to avoid violating section 9 of the Act.
I. Final Listing Determination
Background
The Canoe Creek clubshell is a narrow endemic mussel that is only
known from the Big Canoe Creek watershed in St. Clair and Etowah
counties, Alabama. The species' current distribution is similar to its
historical distribution, which has likely always been narrow. However,
the current range of the species is disjunct; the eastern and western
portions of its range are separated by a stretch of river that exceeds
the dispersal distance of the species' host fish (the clubshell's
primary mode of dispersal in the larval stage) and contains an
inhabitable portion. As a result, we believe there is no genetic
exchange occurring between the western and eastern portions of the
species' range and we characterize these portions as subpopulations.
Please refer to our November 3, 2020, proposed rule (85 FR 69540)
and the species status assessment report (Service 2020, entire) for a
summary of species background information.
[GRAPHIC] [TIFF OMITTED] TR06JY22.000
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
[[Page 40118]]
``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 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 review of the best scientific and commercial data regarding
the status of 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 at Docket No. FWS-R4-ES-2020-0078 on https://www.regulations.gov.
To assess the Canoe Creek clubshell's viability, 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 (e.g., wet or dry, warm or
cold years), redundancy supports the ability of the species to
withstand catastrophic events (e.g., droughts, large pollution events),
and representation supports the ability of the species to adapt over
time to long-term changes in the environment (e.g., 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 the 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. Throughout all of these
stages, we 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 discussion, 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.
Individual, Subpopulation, and Species Needs
Juvenile and adult Canoe Creek clubshells need stable instream
substrates, including, but not limited to, coarse sand and gravel for
settlement and sheltering. Clean, flowing water is needed to keep these
substrates free from excess sedimentation that may reduce the amount of
available habitat for sheltering, hinder a mussel's ability to feed,
and, in severe instances, cause smothering and death (see Risk Factors
for the Canoe Creek Clubshell, below, for information on impacts of
sedimentation). Clean, flowing water is also needed to attract host
fish and disperse juveniles throughout stream reaches. In addition,
freshwater mussels are sensitive to changes in water quality parameters
such as temperature, dissolved oxygen, ammonia, and
[[Page 40119]]
pollutants. Therefore, while the precise tolerance thresholds for these
water quality parameters are unknown for the Canoe Creek clubshell, we
know the species requires water of sufficient quality to sustain its
natural physiological processes for normal behavior, growth, and
survival at all life stages (see Risk Factors for the Canoe Creek
Clubshell, below, for more information on water quality impairments).
Food and nutrients are needed for individuals at all life stages for
survival and growth. Lastly, the presence of host fish is needed for
successful reproduction and dispersal. Host fish used by the Canoe
Creek clubshell include the tricolor shiner (Cyprinella trichroistia),
Alabama shiner (C. callistia), and striped shiner (Luxilus
chrysocephalus), among others.
To be healthy at the subpopulation and species levels, the Canoe
Creek clubshell needs individuals to be present in sufficient numbers
throughout the subpopulations; reproduction, which is evidenced by the
presence of multiple age classes within a subpopulation; and
connectivity among mussel beds (local aggregations) within a
subpopulation and between subpopulations. Mussel abundance facilitates
reproduction. Mussels do not actively seek mates; males release sperm
into the water column, where it drifts until a female takes it in
(Moles and Layzer 2008, p. 212). Therefore, successful reproduction and
subpopulation growth requires a sufficient number of females to be
downstream of a sufficient number of males.
There must also be multiple mussel beds of sufficient density such
that local stochastic events do not eliminate most or all the beds.
Connectivity among beds within each subpopulation is also needed to
allow mussel beds within a stream reach to be recolonized by one
another and recover from stochastic events. A nonlinear distribution of
beds over a sufficiently large area helps buffer against stochastic
events that may impact portions of a clubshell subpopulation.
Similarly, having multiple subpopulations that are connected to one
another protects the species from catastrophic events, such as spills,
because subpopulations can recolonize one another following events that
impact the entirety or portions of one subpopulation.
Risk Factors for the Canoe Creek Clubshell
We identified several factors that are influencing the viability of
the Canoe Creek clubshell. The primary factors include sedimentation,
water quality, and climate events. For a complete discussion on the
factors influencing the Canoe Creek clubshell, including the impacts of
connectivity and conservation efforts, see the species status
assessment report (Service 2020, pp. 30-53).
Sedimentation
Under a natural flow regime, sediments are washed through river and
stream systems, and the overall amount of sediment in the substrate
remains relatively stable over time. However, some past and ongoing
activities or practices can result in elevated levels of sediment in
the substrate. This excessive stream sedimentation (or siltation) can
be caused by soil erosion associated with upland activities (e.g.,
agriculture, poor forest management practices, unpaved roads, road
construction, development, unstable streambanks, and urbanization) and
stream channel destabilization associated with other activities (e.g.,
dredging, poorly installed culverts, pipeline crossings, or other
instream structures) (Brim Box and Mossa 1999, p. 102; Wynn et al.
2016, pp. 36-52). In severe cases, stream bottoms can become
``embedded,'' whereby substrate features including larger cobbles,
gravel, and boulders are surrounded by, or buried in, sediment, which
eliminates interstitial spaces (small openings between rocks and
gravels).
The negative effects of increased sedimentation on mussels are
relatively well-understood (Brim Box and Mossa 1999, entire; Gascho
Landis et al. 2013, entire; Poole and Downing 2004, pp. 118-124).
First, the river processes and sediment dynamics caused by increased
sedimentation degrade and reduce the amount of habitat available to
mussels. Juvenile mussels burrow into interstitial spaces in the
substrate. Therefore, juveniles are particularly susceptible to excess
sedimentation that removes those spaces, and they are unable to find
adequate habitat to survive and become adults (Brim Box and Mossa 1999,
p. 100). Second, sedimentation interferes with juvenile and adult
physiological processes and behaviors. Mussels can die from being
physically buried and smothered by excessive sediment. However, the
primary impacts of excess sedimentation on individuals are sublethal;
sedimentation can reduce a mussel's ability to feed (Brim Box and Mossa
1999, p. 101) and reproduce (by reducing the success of glochidial
attachment and metamorphosis; Beussink 2007, pp. 19-20).
The primary activities causing sedimentation that have occurred,
and continue to occur, in the Big Canoe Creek watershed include
urbanization and development, agricultural practices, and forest
management (Wynn et al. 2016, pp. 9-10, 50-51). Approximately 59
percent of the Big Canoe Creek watershed is in evergreen or mixed
deciduous forest, and forestry activities are common in central Big
Canoe Creek and Little Canoe Creek West. Agriculture is also common,
with pasture and small farms comprising 18 percent, and cultivated
crops comprising 2.3 percent, of land use in the watershed. Urban
development comprises 6 percent of the watershed's land use and is
concentrated near the cities of Ashville and Springville near the
western clubshell subpopulation, and Steele near the eastern
subpopulation (Wynn et al. 2016, p. 9).
A rapid habitat assessment survey that included an evaluation of
sedimentation deposition was completed at multiple sites in the Big
Canoe Creek watershed from 2008-2013 (Wynn et al. 2016, pp. 37-39).
Overall habitat quality varied from poor to optimal throughout Big
Canoe Creek's nine subwatersheds, but six subwatersheds were reported
impaired by sedimentation (Wynn et al. 2016, p. 51).
Water Quality
Water quality in freshwater systems can be impaired through
contamination or alteration of water chemistry. Chemical contaminants
are ubiquitous throughout the environment and are a major reason for
the current declining status of freshwater mussel species nationwide
(Augspurger et al. 2007, p. 2025). Chemicals such as ammonia enter the
environment through both point and nonpoint discharges, including
spills, industrial sources, municipal effluents, and agricultural
runoff. These sources contribute organic compounds, heavy metals,
pesticides, herbicides, and a wide variety of newly emerging
contaminants to the aquatic environment.
Alteration of water chemistry parameters is another type of
impairment. Reduced dissolved oxygen levels and increased water
temperatures are of particular concern. Runoff and wastewater can wash
nutrients (e.g., nitrogen and phosphorus) into the water column, which
can stimulate excessive plant growth (Carpenter et al. 1998, p. 561).
The decomposition of this plant material can lead to reduced dissolved
oxygen levels and eutrophication. Increased temperatures from climate
changes (Alder and Hostetler 2013, U.S. Geological Survey (USGS)
National Climate Change Viewer) and low flow events during periods of
drought can
[[Page 40120]]
also reduce dissolved oxygen levels (Haag and Warren 2008, p. 1176).
The effects of water quality impairments on freshwater mussels is
well studied (Naimo 1995, entire; Havlik and Marking 1987, entire;
Milam et al. 2005, entire; Markich 2017, entire). Contaminants, reduced
dissolved oxygen levels, and increased temperatures are primary types
of impairments that affect mussel survival, reproduction, and fitness.
Freshwater mussels in their early life stages are among the most
sensitive organisms to contaminants, but all life stages are vulnerable
and can suffer from both acute and chronic effects (Augspurger et al.
2003, p. 2569). Depending on the type and concentration, contaminants
can cause mortality of or sublethal effects (e.g., reduced filtration
efficiency, growth, and reproduction) on mussels at all life stages.
In addition to contaminants, alterations in water chemistry,
especially reduced dissolved oxygen levels and increased temperatures,
can have negative impacts on mussels. Although juveniles tend to be
more vulnerable, reduced dissolved oxygen levels can have lethal and
sublethal impacts on mussels in all life stages. Mussels require oxygen
for metabolism and when levels are low, normal functions and behaviors
(e.g., ventilation, filtration, oxygen consumption, feeding, growth,
and reproduction) are impaired. Below a certain level, mortality can
occur. Lastly, increased water temperatures can impact mussel health.
Young juveniles (less than 3 weeks old) are particularly sensitive,
with upper and lower thermal limits 2 to 3 degrees Celsius ([deg]C)
higher or lower than juveniles 1 to 2 years older (Martin 2016, pp. 14-
17). While drastic increases in temperatures beyond thermal tolerances
can cause mortality, the most common negative effects of temperatures
on mussels is caused by relatively minor increases that exacerbate
impacts caused by other issues, such as contamination. For example,
temperature increases impair physiological functions like immune
response, filtration and excretion rates, oxygen consumption, and
growth (Pandolfo et al. 2012, p. 73). Temperature increases have been
linked to increased respiration rates and have also been linked to
increased toxicity of some metals, like copper (Rao and Khan 2000, pp.
176-177).
In the Big Canoe Creek watershed, water quality impairments have
historically impacted the Canoe Creek clubshell and continue to do so.
Rapid habitat assessments conducted from 2008-2013 found 24 of 34 sites
to have suboptimal, marginal, or poor habitat and sedimentation and
elevated nutrient levels were documented throughout the watershed. For
further discussion on water quality impairments within the range of the
Canoe Creek clubshell, see the species status assessment report
(Service 2020, pp. 35-43). Historically, point source discharges and
pesticide and herbicide applications were not well regulated. The Clean
Water Act (CWA; 33 U.S.C. 1251 et seq.) is the primary Federal law in
the United States governing water pollution. A primary role of the CWA
is to regulate the point source discharge of pollutants to surface
waters through a permit process pursuant to the National Pollutant
Discharge Elimination System (NPDES). The NPDES permit process may be
delegated by the Environmental Protection Agency (EPA) to the States.
In Alabama, this authority has been delegated to the Alabama Department
of Environmental Management. Currently, Alabama Department of
Environmental Management requires that discharges not exceed state
water quality standards or criteria. However, it has been found that
organisms commonly used in toxicity testing for determining water
quality criteria may be less sensitive to tested toxicants than some
freshwater mussels (Wang et al. 2007). Because there is no information
on the Canoe Creek clubshell's sensitivity to common pollutants, we are
not sure whether Federal and State water quality parameters are
protective for this species.
The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA; 7
U.S.C. 136 et seq.) is intended to protect against unreasonable human
health or environmental effects. While pesticides are usually tested on
standard biological media (e.g., honey bees (Apis sp.), daphnia
(Daphnia magna), bluegill sunfish (Lepomis macrochirus), rainbow trout
(Oncorhynchus mykiss), mice (Mus musculus)), often endangered and
threatened species are more susceptible to pollutants than test
organisms commonly used in bioassays. While State and Federal
regulations have become more stringent and toxicity and environmental
consequences of contaminants are better understood, the use of many
pesticides and herbicides are more commonplace. Runoff and discharges
are also concerns now and into the future with the ongoing urbanization
of the area.
Climate Events
Climate events such as droughts and floods can have significant
impacts on freshwater systems and their fundamental ecological
processes (Poff et al. 2002, pp. ii-v). Drought can cause dewatering of
freshwater habitats and low flows, which exacerbate water quality
impairments (e.g., dissolved oxygen, temperature, contaminants).
Streams with smaller drainage areas are especially vulnerable to
drought because they are more likely to experience extensive dewatering
than larger streams that maintain substantial flow (Haag and Warren
2008, pp. 1172-1173). Floods can cause excessive erosion, destabilize
banks and bed materials, and lead to increases in sedimentation and
suspended solids. Climate change can affect the frequency and duration
of drought and floods, as well as alter normal temperature regimes.
Higher water temperatures, which are common during the low flow periods
of droughts, decrease mussel survival (Gough et al. 2012, p. 2363).
Severe drought and major floods can have significant impacts on
mussel communities (Haag and Warren 2008, p. 1165; Hastie et al. 2001,
p. 107; Hastie et al. 2003, pp. 40-45). Reduced flows from drought can
isolate or eliminate areas of suitable habitat for mussels in all life
stages and render individuals exposed and vulnerable to drying and
predation (Golladay et al. 2004, pp. 503-504). Drought can also degrade
water quality (e.g., decreased dissolved oxygen levels and increased
temperatures), which can reduce mussel survival, reproduction, and
fitness (Golladay et al. 2004, p. 501; Haag and Warren 2008, pp. 1174-
1176) (see discussion above under ``Water Quality''). If severe or
frequent, droughts can cause substantial declines in mussel abundance.
Flooding can also affect mussels by dislodging individuals and
depositing them in unsuitable habitat, which can affect their ability
to survive and reproduce (Hastie et al. 2001, pp. 108, 114). Higher
turbidity and reduced visibility during high flows reduce the chances
of successful fertilization of the female and impede the host fish's
ability to find and take up conglutinates.
The stream segments within Big Canoe Creek where clubshells occur
have relatively small drainage sizes, which render them particularly
vulnerable to drought. Combined with other stressors such as water
quality degradation that occur within the watershed, severe droughts
can have significant impacts on the species (Haag and Warren 2008, p.
1175). No studies have been conducted specifically on the impacts of
drought events to Canoe Creek clubshells within Big Canoe Creek.
However, neighboring streams of similar size and condition experienced
drastic declines in the density and
[[Page 40121]]
abundance of the warrior pigtoe (Pleurobema rubellum, a mussel species
similar to the clubshell). Following a severe drought event in 2000,
warrior pigtoe abundance declined by 65 to 83 percent (Haag and Warren
2008, p. 1165), and multiple sites were extirpated. We presume that Big
Canoe Creek faced similar conditions following this and other severe
drought events because of its geographic proximity and similar size and
condition. Additionally, we presume the Canoe Creek clubshell's
response to the drought event was comparable to that of the warrior
pigtoe given its similar life-history characteristics and physiological
and habitat needs.
While the impacts on mussels following the drought in 2000 were
well documented (Golladay et al. 2004, entire; Haag and Warren 2008,
entire), drought events have been occurring in the area and affecting
mussel communities for decades. The severity and frequency of droughts
is closely monitored and recorded at the local and State levels by
multiple initiatives (NDMC 2019; USGS 2019). The National Oceanic and
Atmospheric Administration's (NOAA) National Integrated Drought
Information System (NIDIS) program keeps one of the most extensive
records (beginning in 1895) of drought in Alabama. The program uses the
Palmer Drought Severity Index (PDSI), which is a measurement of dryness
based on evapotranspiration (NOAA 2020). These data indicate that over
the past 100 years (1918-2018), approximately 6 percent of years
experienced severe drought.
While severe droughts are natural events that these streams have
always experienced, this part of Alabama has undergone more frequent
severe drought events over the last 20 years; the number of severe
drought years has increased to approximately 11 percent (NOAA 2020,
unpaginated). Water flow gauge data at a Big Canoe Creek gauging site
reported low flows that correlate to the severe and exceptional
droughts in the Big Canoe Creek watershed during 2000, 2007, and 2008
(USGS 2019). The severe drought events that occurred in relatively
short succession during a prolonged dry period likely caused severe
impacts to the survival, reproduction, and abundance of Canoe Creek
clubshells. Although we do not have specific data on the Canoe Creek
clubshell in response to these drought events, the decline of other
freshwater mussel species was documented in a nearby watershed. The
dark pigtoe (Pleurobema furvum), a freshwater mussel with similar life
history characteristics of the Canoe Creek clubshell, was extirpated at
sites with low densities following the 2000 severe drought event (Haag
and Warran 2008, pp. 1173).
Cumulative Effects
It is likely that individual stressors identified are synergistic
and have cumulative impacts on the species. For instance, an increase
in drought frequency would amplify water quality issues predicted to
occur with increases in developed land use. Decreased stream flows
would be even less able to accommodate increasing levels of non-point
source pollution associated with and expected from increased human
populations within the range of the Canoe Creek clubshell. Further,
increasing water temperatures from drought events have been and will
continue to exacerbate water quality issues such as decreases in
dissolved oxygen in Big Canoe Creek (see ``Climate Events,'' above).
Species Condition
The Canoe Creek clubshell's ability to withstand, or be resilient
to, stochastic events and disturbances such as drought and fluctuations
in reproductive rates is extremely limited. The species has likely
always been a rare, narrow endemic of the Big Canoe Creek watershed;
however, past and ongoing stressors, including decreased water quality
from drought events, development, and agriculture, among other sources,
have greatly reduced the resiliency of the species. At present, the
clubshell has extremely low abundance, shows no signs of successful
reproduction, and has poor connectivity within and among
subpopulations.
During comprehensive mussel surveys conducted in 2017 and 2018 in
the Big Canoe Creek watershed, only 25 Canoe Creek clubshells were
found (Fobian et al. 2017, entire; Fobian 2018, entire). In the western
subpopulation, 9 individuals were found in 2 of the 40 sites that were
surveyed. In the eastern subpopulation, 16 individuals were found at
only 1 of the 8 sites that were surveyed. In the 25 years prior to
these surveys, fewer than 15 live individuals were found (Fobian et al.
2017, pp. 9-10). Further, the age structure of the individuals located
consisted of aged adults and the surveys found no evidence of
successful recruitment (i.e., sub adults (Fobian et al. 2017, pp. 9-
10)).
In addition to a low abundance, the clubshell is experiencing
recruitment failure; juveniles are not surviving to reproductive ages
and joining the adult population (Strayer and Malcom 2012, pp. 1783-
1785). This is evidenced by the species' heavily skewed age class
distribution. Of the 25 individuals found in recent surveys, all were
aging adults (Fobian et al. 2017, entire; Fobian 2018, entire). This
skewed age class distribution is indicative of a species that is not
successfully reproducing and is in decline.
Lastly, the resiliency of each subpopulation is limited by their
disjunct distribution. The stretch of unsuitable habitat separating the
subpopulations prevents individuals from dispersing from one
subpopulation to another. This isolation renders the subpopulations
vulnerable to extirpation because individuals are unable to recolonize
portions of the range following stochastic disturbances that eliminate
entire mussel beds or a subpopulation.
The Canoe Creek clubshell's ability to withstand catastrophic
events (redundancy) is also limited, primarily because of its narrow
range. Severe droughts resulting in decreased water quality and direct
mortality were likely the primary causes of the species' recent
decline. Compared to a more wide-ranging species whose risk is spread
over multiple populations across its range, the entirety of the
clubshell's range is impacted by a severe drought event. However, the
impacts of other potential catastrophic events, such as contaminant
spills, may be restricted to a portion of the clubshell's range,
especially because the species' subpopulations are not directly
downstream from one another.
The ability of the Canoe Creek clubshell to adapt to changing
environmental conditions (representation) over time is also likely
limited. There are no studies that have explicitly explored the
species' adaptive capacity or the fundamental components--phenotypic
plasticity, dispersal ability, and genetic diversity--by which it is
characterized. The clubshell is a narrow endemic, inhabiting a single
watershed, and we do not observe any ecological, behavioral, or other
form of diversity that may indicate adaptive capacity across its range;
thus, we presume the species currently has limited ability to adapt to
changing environmental conditions.
Future Condition
As part of the SSA, we also developed three future condition
scenarios to capture the range of uncertainties regarding future
threats and the projected responses by the Canoe Creek clubshell. Our
scenarios assumed a moderate or enhanced probability of severe drought,
and either propagation
[[Page 40122]]
or no propagation of the species. Because we determined that the
current condition of the Canoe Creek clubshell was consistent with an
endangered species (see Determination of Canoe Creek Clubshell's
Status, below), we are not presenting the results of the future
scenarios in this rule. Please refer to the SSA report (Service 2020)
for the full analysis of future scenarios.
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. To assess the current and
future condition of the species, we undertake an iterative analysis
that encompasses and incorporates the threats individually and then
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.
Conservation Efforts and Regulatory Mechanisms
State Protections
The Canoe Creek clubshell is currently ranked as a priority 1
(highest conservation concern) species of greatest conservation need in
Alabama (Shelton-Nix 2017, p. 51; ANHP 2017, p. 41), but is not
currently listed as State threatened or endangered (ADCNR 2015, p. 23,
ANHP 2017, p. 41). However, all mussel species not listed as a
protected species under the Invertebrate Species Regulation are
partially protected by other regulations of the Alabama Game, Fish, and
Fur Bearing Animals Regulations. Regulation 220-2-.104 prohibits the
commercial harvest of all but the 11 mussel species for which
commercial harvest is legal (ADCNR 2015, p. 438). The Canoe Creek
clubshell is not one of the 11 mussel species for which commercial
harvest is legal.
Conservation Actions
The Service and numerous partners are working to provide technical
guidance and offering conservation tools to meet both species and
habitat needs in aquatic systems of Alabama. The Big Canoe Creek
watershed has been designated as a Strategic Habitat Unit by the
Alabama Rivers and Streams Network (a group of non-profit
organizations, private companies, State and Federal agencies and
concerned citizens that recognize the importance of clean water and
working together to maintain healthy water supplies and investigate
water quality, habitat conditions, and biological quality in rivers and
streams and make these findings to the public) for the purpose of
facilitating and coordinating watershed management and restoration
efforts as well as focus funding to address habitat and water quality
issues (Wynn et al. 2016, p. 11, Wynn et al. 2018, entire). In 2016,
the Geological Survey of Alabama completed a watershed assessment of
the Big Canoe Creek system for the recovery and restoration of
imperiled aquatic species (Wynn et al. 2016, entire). This assessment
is being used by multiple Federal, State, and non-government
organizations to contribute to restoration projects that will improve
habitat and water quality for at risk and listed species like the Canoe
Creek clubshell. An example of organizations working together under
Alabama Rivers and Streams Network is the removal of the Goodwin's Mill
Dam in 2013 on Big Canoe Creek, which restored connectivity to a
portion of the range of the Canoe Creek clubshell within Little Canoe
Creek (west). Multiple agencies and groups came together for this
removal including: the Service's Partners for Fish and Wildlife
Program, Ecological Services, and Fisheries programs, Alabama
Department of Conservation and Natural Resources (ADCNR), Geological
Survey of Alabama, Alabama Department of Environmental Management,
Alabama Power Company, The Nature Conservancy, Coosa River Keeper, and
Friends of Big Canoe Creek.
The Nature Conservancy is very active in Alabama and has listed Big
Canoe Creek as a priority watershed for focused conservation efforts.
The Nature Conservancy has been awarded a National Fish and Wildlife
Foundation grant to create a watershed coordinator position for the Big
Canoe Creek watershed that will work with landowners on headwater
protection through land acquisition and easements; protect water
quality by restoring and bolstering riparian buffers on public and
private lands; install on the ground restoration projects that
stabilize eroding streambanks and increase overall water quality and
instream habitat on public and private lands; and promote public access
and recreational use of the river through conservation and protection
of the water resource. The Nature Conservancy has also received funding
from Natural Resources Conservation Service's Regional Conservation
Partnership Program to restore degrading streambanks in several
watersheds in Alabama, including the Big Canoe Creek watershed. These
efforts are in their early stages and have not yet resulted in
improvements to the status of the Canoe Creek clubshell.
The Friends of Big Canoe Creek is a non-governmental organization
formed in 2008 for purpose of preserving and protecting the Big Canoe
Creek watershed through education and participation of on the ground
conservation efforts that was instrumental in advocating for and
nominating land along the creek for inclusion into Forever Wild, a
State program that buys land to protect and preserve it. As of 2018, a
382-acre tract of land was established as the Big Canoe Creek Nature
Preserve with about a mile of creek frontage near Springville in St.
Clair County. The preserve will be retained by the Alabama Land Trust
and maintained by the City of Springville. While the Canoe Creek
clubshell is not known to occupy the Big Canoe Creek Nature preserve,
it is expected that the species will benefit from the habitat
protections the preserve provides.
In 2021, the Alabama Aquatic Biodiversity Center (a program of the
ADCNR) submitted a final report detailing aspects of the species'
reproductive periodicity, fish host relationships, and propagation
methods. The Alabama Aquatic Biodiversity Center has been successful in
propagating individuals of the species and has begun releasing them
into the Big Canoe Creek watershed. In March 2020, approximately 1,500
individuals of the Canoe Creek clubshell were stocked into Big Canoe
Creek. Annual monitoring to evaluate growth and survival is planned,
and additional propagation and stocking efforts will continue in
upcoming years.
In summary, the Canoe Creek clubshell is currently comprised of a
critically low number of older adults that are failing to recruit
young. The severity and frequency of drought events in the past two
decades, combined with other ongoing habitat-related stressors such as
sedimentation and water quality degradation and the mussel's naturally
inefficient reproductive strategy, likely caused the decline of the
species to its current vulnerable condition. The Canoe Creek
clubshell's vulnerability to ongoing
[[Page 40123]]
stressors is heightened to such a degree that it is currently on the
brink of extinction in the wild as a result of its narrow range and
critically low numbers.
Determination of the Canoe Creek Clubshell's Status
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 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.
Canoe Creek Clubshell's Status Throughout All of Its Range
After evaluating threats to the species and assessing the
cumulative effect of the threats under the Act's section 4(a)(1)
factors, we find that past and ongoing stressors including decreased
water quality from drought, development, and agriculture, among other
sources (Factor A), have reduced the resiliency of the Canoe Creek
clubshell to such a degree that the species is particularly vulnerable
to extinction. The Canoe Creek clubshell has likely always been a rare,
narrow endemic within the Big Canoe Creek, and the species has some
natural ability to withstand stochastic demographic fluctuations and
catastrophic events such as a severe drought, which are characteristic
of the environment in which it evolved. However, the frequency of
severe drought events in the past two decades, combined with other
ongoing habitat-related stressors and the mussel's naturally
inefficient reproductive strategy, likely caused the decline of the
species to its current vulnerable condition from which it is likely
unable to recover naturally. The species' declining trend and tenuous
status is evidenced by the results of recent comprehensive surveys in
both the western and eastern subpopulations that reveal the species is
comprised of a limited number of older adults that are failing to
recruit young. We anticipate these threats will continue to act on the
species in the future. The Canoe Creek clubshell's vulnerability to
ongoing stressors is heightened as a result of its narrow range and
critically low numbers such that it is currently in danger of
extinction throughout its range. Thus, after assessing the best
available information, we conclude that the Canoe Creek clubshell is in
danger of extinction throughout all of its range.
Canoe Creek Clubshell's 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 the Canoe Creek clubshell is in danger of
extinction throughout all of its range and, accordingly, did not
undertake an analysis to determine whether there is a significant
portion of its range that may have a different status. Because we have
determined the Canoe Creek clubshell warrants listing as endangered
throughout all of its range, our determination does not conflict with
the decision in Center for Biological Diversity v. Everson, 2020 WL
437289 (D.D.C. Jan. 28, 2020), because that decision related to the SPR
analyses for a species that warrants listing as threatened, not
endangered, throughout all of its range.
Determination of Status
Our review of the best available scientific and commercial
information indicates that the Canoe Creek clubshell meets the Act's
definition of an endangered species. Therefore, we are listing the
Canoe Creek clubshell 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 subsequent to a final listing determination.
The recovery outline guides the immediate implementation of urgent
recovery actions and describes the process 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, to the maximum extent
practicable, recovery criteria for review of when a species may be
ready 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 (https://ecos.fws.gov/ecp/species/4693), or from our Alabama
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
[[Page 40124]]
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.
Following publication of this final rule, 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 Alabama
would be eligible for Federal funds to implement management actions
that promote the protection or recovery of the Canoe Creek clubshell.
Information on our grant programs that are available to aid species
recovery can be found at: https://www.fws.gov/service/financial-assistance.
Please let us know if you are interested in participating in
recovery efforts for the Canoe Creek clubshell. 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)(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 any endangered or
threatened 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 consult with the Service.
Federal agency actions within the species' habitat that may require
consultation, as described in the preceding paragraph include
management and any other landscape-altering activities. These actions
include, but are not limited to, work authorized by the U.S. Army Corps
of Engineers that administers the issuance of section 404 Clean Water
Act permits that regulate fill of wetlands and the Federal Highway
Administration that regulates the construction and maintenance of roads
or highways. Additional actions that may require consultation are those
conducted by the U.S. Fish and Wildlife Service under the Partners for
Fish and Wildlife Program. This program provides technical and
financial assistance to private landowners and Tribes who are willing
to help meet habitat needs of Federal trust species. The Farm Service
Agency administers the Conservation Reserve Program, which includes
providing incentives for farmers and private landowners to use their
environmentally sensitive agricultural land for conservation benefit.
The Natural Resources Conservation Service works with private
landowners under multiple Farm Bill programs, all aimed at the
conservation of water and soil.
The Act and its implementing regulations set forth a series of
general prohibitions and exceptions that apply to endangered wildlife.
The prohibitions of section 9(a)(1) of the Act, codified at 50 CFR
17.21, make it illegal for any person subject to the jurisdiction of
the United States to take (which includes harass, harm, pursue, hunt,
shoot, wound, kill, trap, capture, or collect; or to attempt any of
these) endangered fish or wildlife within the United States or on the
high seas. In addition, it is unlawful to import; export; deliver,
receive, carry, transport, or ship in interstate or foreign commerce in
the course of commercial activity; or sell or offer for sale in
interstate or foreign commerce any species listed as an endangered
species. It is also illegal to possess, sell, deliver, carry,
transport, or ship any such wildlife that has been taken illegally.
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 wildlife under certain circumstances. Regulations
governing permits are codified at 50 CFR 17.22. With regard to
endangered wildlife, a permit may be issued for the following purposes:
For scientific purposes, to enhance the propagation or survival of the
species, and for incidental take in connection with otherwise lawful
activities. 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 listing on
proposed and ongoing activities within the range of the listed species.
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) Normal agricultural and silvicultural practices, including
herbicide and pesticide use, that are carried out in accordance with
any existing regulations, permit and label requirements, and best
management practices.
(2) Normal residential development and landscape activities that
are carried out in accordance with any existing regulations, permit
requirements, and best management practices.
(3) Normal recreational hunting, fishing, or boating activities
that are carried out in accordance with all existing hunting, fishing,
and boating regulations, and following reasonable practices and
standards.
Based on the best available information, the following activities,
which are activities that the Service finds could potentially harm the
Canoe Creek clubshell and result in ``take'' of the species, 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) Unauthorized collecting, handling, possessing, selling,
delivering, carrying, or transporting of the Canoe Creek clubshell,
including import or export across State lines and international
boundaries, except for properly documented antique specimens of the
taxon at least 100 years old, as defined by section 10(h)(1) of the
Act.
(2) Unauthorized modification of the channel, substrate,
temperature, or water flow of any stream or water body in which the
Canoe Creek clubshell is known to occur.
(3) Unauthorized discharge of chemicals or fill material into any
waters in which the Canoe Creek clubshell is known to occur.
(4) Introduction of nonnative species that compete with or prey
upon the Canoe Creek clubshell, such as the zebra mussel (Dreissena
polymorpha) and Asian clam (Corbicula fluminea).
(5) Pesticide applications in violation of label restrictions.
Questions regarding whether specific activities would constitute a
violation of section 9 of the Act should be directed to the Alabama
Ecological Services
[[Page 40125]]
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. The implementing regulations at 50 CFR 424.12(b)(2) further
delineate unoccupied critical habitat by setting out three specific
parameters: (1) when designating critical habitat, the Secretary will
first evaluate areas occupied by the species; (2) 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; and (3) 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
[[Page 40126]]
occupied by the species and important to the conservation of the
species, both inside and outside the critical habitat designation, will
continue to be subject to: (1) Conservation actions implemented under
section 7(a)(1) of the Act; (2) regulatory protections afforded by the
requirement in section 7(a)(2) of the Act for Federal agencies to
ensure their actions are not likely to jeopardize the continued
existence of any endangered or threatened species; and (3) the
prohibitions found in section 9 of the Act. Federally funded or
permitted projects affecting listed species outside their designated
critical habitat areas may still result in jeopardy findings in some
cases. These protections and conservation tools will continue to
contribute to recovery of this species. Similarly, critical habitat
designations made on the basis of the best available information at the
time of designation will not control the direction and substance of
future recovery plans, habitat conservation plans (HCPs), or other
species conservation planning efforts if new information available at
the time of these planning efforts calls for a different outcome.
Physical or Biological Features Essential to the Conservation of the
Species
In accordance with section 3(5)(A)(i) of the Act and regulations at
50 CFR 424.12(b), in determining which areas we will designate as
critical habitat from within the geographical area occupied by the
species at the time of listing, we consider the physical or biological
features that are essential to the conservation of the species and that
may require special management considerations or protection. The
regulations at 50 CFR 424.02 define ``physical or biological features
essential to the conservation of the species'' as the features that
occur in specific areas and that are essential to support the life-
history needs of the species, including, but not limited to, water
characteristics, soil type, geological features, sites, prey,
vegetation, symbiotic species, or other features. A feature may be a
single habitat characteristic, or a more complex combination of habitat
characteristics. Features may include habitat characteristics that
support ephemeral or dynamic habitat conditions. Features may also be
expressed in terms relating to principles of conservation biology, such
as patch size, distribution distances, and connectivity.
For example, physical features essential to the conservation of the
species might include gravel of a particular size required for
spawning, alkaline soil for seed germination, protective cover for
migration, or susceptibility to flooding or fire that maintains
necessary early-successional habitat characteristics. Biological
features might include prey species, forage grasses, specific kinds or
ages of trees for roosting or nesting, symbiotic fungi, or 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.
Canoe Creek clubshells live in freshwater rivers and streams.
Clubshells, like many other freshwater mussels, live in aggregations
called mussel beds, which can be patchily distributed throughout an
occupied river or stream reach, but together comprise a mussel
population. Mussel beds are connected to one another when host fish
infested by mussel larvae in one bed disperse the larvae to another
bed. While adults are mostly sedentary, larval dispersal among beds
causes mussel density and abundance to vary dynamically throughout an
occupied reach over time. Connectivity among beds and populations is
essential for maintaining resilient populations because it allows for
recolonization of areas following stochastic events. Populations that
do not occupy a long enough reach or have too few or sparsely
distributed beds are vulnerable to extirpation.
The primary requirements for individual Canoe Creek clubshells
include the following: stable instream substrate for attaching and
sheltering; clean, flowing water to keep substrates free from excess
sedimentation and to facilitate host fish interactions and feeding;
appropriate water quality and temperatures to meet physiological needs
for survival, growth, and reproduction; food and nutrients to survive
and grow; and host fish for reproduction and dispersal (see Individual,
Subpopulation, and Species Needs, above, for more discussion of these
needs).
Summary of Essential Physical or Biological Features
We derive the specific physical or biological features essential to
the conservation of the Canoe Creek clubshell from studies of the
species' habitat, ecology, and life history as described below.
Additional information can be found in the SSA report (Service 2020,
entire; available on https://www.regulations.gov under Docket No. FWS-
R4-ES-2020-0078). We have determined that the following physical or
biological features are essential to the conservation of the Canoe
Creek clubshell:
(1) Suitable substrates and connected instream habitats,
characterized by a geomorphically stable stream channel (a channel that
maintains its lateral dimensions, longitudinal profile, and spatial
pattern over time without aggrading or degrading bed elevation) and
connected instream habitats (e.g., stable riffle-run-pool habitats that
provide flow refuges consisting of silt-free gravel and coarse sand
substrates).
(2) A hydrologic flow regime (i.e., the magnitude, frequency,
duration, and seasonality of discharge over time) necessary to maintain
benthic habitats where the species is found; to maintain connectivity
of streams with the floodplain; and to provide for normal behavior,
growth, and survival of all life stages of Canoe Creek clubshell
mussels and their fish hosts.
(3) Water quality (including, but not limited to, temperature,
conductivity, hardness, turbidity, ammonia, heavy metals, oxygen
content, and other chemical characteristics) necessary to sustain
natural physiological processes for normal behavior, growth, and
viability of all life stages of Canoe Creek clubshell mussels and their
fish hosts.
(4) Sediment quality (including, but not limited to, coarse sand
and/or gravel substrates with low to moderate amounts of fine sediment,
low amounts of attached filamentous algae, and other physical and
chemical characteristics) necessary for normal behavior, growth, and
viability of all life stages of Canoe Creek clubshell mussels and their
fish hosts.
(5) The presence and abundance of known fish hosts, which may
include the tricolor shiner (Cyprinella trichroistia), Alabama shiner
(C. callistia), and striped shiner (Luxilus chrysocephalus), necessary
for
[[Page 40127]]
recruitment of the Canoe Creek clubshell mussel.
Special Management Considerations or Protection
When designating critical habitat, we assess whether the specific
areas within the geographical area occupied by the species at the time
of listing contain features which are essential to the conservation of
the species and which may require special management considerations or
protection. The features essential to the conservation of the Canoe
Creek clubshell may require special management considerations or
protections to ensure that conditions are improved. Examples of these
threats include excessive amounts of fine sediment deposited in the
channel, changes in water quality (impairment), activities that cause a
destabilization of the stream channel and/or its banks, loss of
riparian cover, and altered hydrology from inundation, channelization,
withdrawals, or flow loss/scour resulting from other human-induced
perturbations.
Management activities that could ameliorate these threats include,
but are not limited to: Use of best management practices designed to
reduce sedimentation, erosion, and bank-side destruction; protection of
riparian corridors and retention of sufficient canopy cover along
banks; exclusion of livestock and nuisance wildlife (feral hogs, exotic
ungulates); moderation of surface and ground water withdrawals to
maintain natural flow regimes; increased use of stormwater management
and reduction of stormwater flows into the systems; use of highest
water quality standards for wastewater and other return flows; and
reduction of other watershed and floodplain disturbances that release
sediments, pollutants, or nutrients into the water.
In summary, we find that the areas we are designating as critical
habitat contain the physical and biological features that are essential
to the conservation of the species and that may require special
management considerations or protection. Special management
considerations or protection may be required of the Federal action
agency to eliminate, or to reduce to negligible levels, the threats
affecting the physical and biological features of each unit.
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 designating any areas
outside the geographical area occupied by the species because we have
not identified any unoccupied areas that meet the definition of
critical habitat.
To inform our designation, we reviewed observations of one or more
live individuals, or recent dead shell material, from 1999 to the
present because Canoe Creek clubshells may be difficult to detect and
some sites have not been visited multiple times. Recently dead shell
material at a site indicates the species is likely present in that
area, given their average life span of 25 to 35 years. We confirmed
that these areas continued to be occupied in 2017 and 2018 from surveys
(Fobian et al. 2017, pp 26-29; Fobian 2018 pers. comm.; Fobian 2019,
unpaginated). Therefore, we consider portions of the Big Canoe Creek
mainstem and portions of Little Canoe Creek in its eastern and western
reaches as occupied by the Canoe Creek clubshell at the time of
listing.
The Canoe Creek clubshell has likely always been a narrow endemic
within its single watershed. Therefore, the species' redundancy and
representation is limited, but likely similar to that which it was
historically. However, the species has an extremely limited ability to
withstand stochastic events and disturbances because of its now
critically low numbers. Conserving the species will therefore require
increasing the species' abundance throughout its range and successful
recruitment. Although conservation of the Canoe Creek clubshell will
require improving the species' resiliency, we concluded that the
occupied areas designated as critical habitat are sufficient to ensure
the conservation of the species because these areas represent the
maximum extent of the historical range that is capable or likely to
become capable of supporting the Canoe Creek clubshell. Inundation of
the lower reaches of the Big Canoe Creek watershed after the completion
of Neely Henry Dam removed the physical and biological features
necessary for the species for food, shelter, and reproduction in the
intervening stream reaches between the occupied reaches of habitat.
Based on the information available, the extent of designated CH is the
best estimate of the extent of habitat that is essential to the
conservation of the species.
Sources of data for this critical habitat designation include
multiple databases maintained by the Service, museums, universities,
nongovernmental organizations, and State agencies; scientific and
agency reports; peer-reviewed journal articles; and numerous survey
reports on streams throughout the species' range.
In summary, for areas within the geographic area occupied by the
species at the time of listing, we delineated critical habitat unit
boundaries as follows: We evaluated habitat suitability of stream
segments within the geographic area occupied at the time of listing and
retained those segments that contain some or all of the physical and
biological features to support life-history functions essential for
conservation of the species. Host fish species (minnows in the genus
Cyprinella and Luxilus) are distributed throughout the occupied reaches
and provide additional support that these areas are also occupied by
the Canoe Creek clubshell. Then, we assessed those occupied stream
segments retained through the above analysis and refined the starting
and ending points by evaluating the presence or absence of appropriate
physical and biological features. We selected upstream and downstream
cutoff points to reference existing easily recognizable landmarks,
including stream confluences, highway crossings, and the Federal Energy
Regulatory Commission boundary of H. Neely Henry Reservoir. Unless
otherwise specified, any stream beds located directly beneath bridge
crossings or other landmark features used to describe critical habitat
spatially, such as stream confluences, are considered to be wholly
included within the critical habitat unit. Critical habitat stream
segments were then mapped using ArcGIS Pro version 2.3.3 (ESRI, Inc.),
a Geographic Information Systems program.
When determining critical habitat boundaries, we made every effort
to avoid including developed areas such as lands covered by buildings,
pavement, and other structures because such lands lack physical or
biological features necessary for the Canoe Creek clubshell. 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 final rule have been
excluded by text in the rule and are not designated as critical
habitat. With the publication of
[[Page 40128]]
this final rule, 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 designate as critical habitat streams that 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. Both designated units contain all of
the identified physical or biological features and support multiple
life-history processes and therefore meet the definition of critical
habitat.
The final critical habitat designation is defined by the map or
maps, as modified by any accompanying regulatory text, presented at the
end of this document under Regulation Promulgation. We include more
detailed information on the boundaries of the critical habitat
designation in the preamble of this document. We will make the
coordinates or plot points or both on which each map is based available
to the public on https://www.regulations.gov at Docket No. FWS-R4-ES-
2020-0078 and on our internet site at https://www.fws.gov/office/alabama-ecological-services.
Critical Habitat Designation
We are designating approximately 58.5 river kilometers (km) (36.3
river miles (mi)) in two units as critical habitat for the Canoe Creek
clubshell. The critical habitat areas we describe below constitute our
current best assessment of areas that meet the definition of critical
habitat for the Canoe Creek clubshell. The two units we designate as
critical habitat are: (1) Little Canoe Creek East and (2) Big Canoe
Creek/Little Canoe Creek West. Table 1 shows the critical habitat units
and the approximate size of each unit. In Alabama, all waters are held
within the public trust. The Service consulted with the State to
confirm the status of ownership of the river bottoms in these river
segments. However, this information was not available at the time of
publication of this final rule.
Table 1--Critical Habitat Units for the Canoe Creek Clubshell
[Area estimates reflect all land within critical habitat unit boundaries]
----------------------------------------------------------------------------------------------------------------
Size of unit
Critical habitat unit Adjacent land ownership in kilometers Occupied?
by type (miles)
----------------------------------------------------------------------------------------------------------------
1. Little Canoe Creek East............. Private, County.......... 9.7 (6.0) Yes.
2. Big Canoe Creek/Little Canoe Creek Private.................. 48.8 (30.3) Yes.
West.
---------------------------------------------
Total.............................. ......................... 58.5 (36.3) Yes.
----------------------------------------------------------------------------------------------------------------
Note: Sizes may not sum due to rounding.
We present brief descriptions of both units, and reasons why they
meet the definition of critical habitat for the Canoe Creek clubshell,
below.
Unit 1: Little Canoe Creek East
Unit 1 consists of 9.7 river km (6.0 river mi) of Little Canoe
Creek East, due east of the Town of Steele, in St. Clair and Etowah
Counties, Alabama. The unit consists of the Little Canoe Creek mainstem
to the bankfull width from the intersection with the Federal Energy
Regulatory Commission boundary of H. Neely Henry Reservoir (at
elevation 155 meters (m) (509 feet (ft)) above mean sea level and
approximately 4.4 river km (2.7 river mi) upstream of its confluence
with Big Canoe Creek), upstream 9.7 river km (6.0 river mi) to the U.S.
Highway 11 bridge crossing.
This unit is currently occupied by the Canoe Creek clubshell. The
majority of the adjacent land surrounding this unit is privately owned.
A small amount of the adjacent land is publicly owned in the form of
bridge crossings and easements, and portions of the eastern bank of
Little Canoe Creek between U.S. Highway 11 to Interstate 59, in Etowah
County, Alabama. Approximately 2.4 river km (1.5 river mi) of Little
Canoe Creek borders property to the east owned by Etowah County,
Alabama.
Unit 1 contains all physical or biological features essential to
the conservation of the species. The channel within Unit 1 is
relatively stable and provides the necessary riffle-run-pool sequences
required by the Canoe Creek clubshell. A continued hydrologic flow
regime with adequate water quality and limited fine sediments are
present within this unit, providing habitat features that support the
Canoe Creek clubshell. The unit also contains fish hosts for the
clubshell. The physical and biological features in this unit may
require special management considerations or protections to ensure that
conditions do not further degrade. Examples of threats within this unit
include excessive amounts of fine sediment deposited in the channel,
changes in water quality (impairment), activities that cause a
destabilization of the stream channel and/or its banks, loss of
riparian cover, and altered hydrology from either inundation,
channelization, withdrawals, or flow loss/scour resulting from other
human-induced perturbations (see Special Management Considerations or
Protection, above).
Unit 2: Big Canoe Creek/Little Canoe Creek West
Unit 2 consists of 48.8 river km (30.3 river mi) of Big Canoe Creek
and its tributary Little Canoe Creek West, which are located
geographically between the cities of Springville and Ashville, St.
Clair County, Alabama. The unit consists of the main channel of Big
Canoe Creek to the bankfull width from the Double Bridge Road bridge
crossing near Ashville, Alabama, upstream 32.2 river km (20.0 river mi)
to the Washington Valley Rd (St. Clair County Road 23) bridge crossing
near Springville, Alabama; and Little Canoe Creek West from its
confluence with Big Canoe Creek, upstream 16.6 river km (10.3 river mi)
to the confluence of Stovall Branch. This unit is currently occupied by
the Canoe Creek clubshell. The majority of this unit is adjacent to
private land, except for any small amount of adjacent land that is
publicly owned in the form of bridge crossings and easements.
Unit 2 contains all physical or biological features essential to
the conservation of the species. The channel within Unit 2 is
relatively stable and provides the necessary riffle-run-pool sequences
required by the Canoe Creek clubshell. A continued hydrologic flow
regime with adequate water quality and
[[Page 40129]]
limited fine sediments is present within this unit, providing habitat
features that support the Canoe Creek clubshell. A diverse fish fauna,
including fish hosts for the clubshell, are known from this unit. The
physical and biological features in this unit may require special
management considerations or protections to ensure that conditions do
not degrade. Examples of threats within this unit include excessive
amounts of fine sediment deposited in the channel, changes in water
quality (impairment), activities that cause a destabilization of the
stream channel and/or its banks, loss of riparian cover, and altered
hydrology from either inundation, channelization, withdrawals, or flow
loss/scour resulting from other human-induced perturbations (see
Special Management Considerations or Protection, above).
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that any action they fund, authorize, or carry out
is not likely to jeopardize the continued existence of any endangered
species or threatened species or result in the destruction or adverse
modification of designated critical habitat of such species.
We published a final rule revising the definition of ``destruction
or adverse modification'' on August 27, 2019 (84 FR 44976). Destruction
or adverse modification means a direct or indirect alteration that
appreciably diminishes the value of critical habitat as a whole for the
conservation of a listed species.
If a Federal action may affect a listed species or its critical
habitat, the responsible Federal agency (action agency) must consult
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: (1) if the amount or extent of
taking specified in the incidental take statement is exceeded; (2) if
new information reveals effects of the action that may affect listed
species or critical habitat in a manner or to an extent not previously
considered; (3) if the identified action is subsequently modified in a
manner that causes an effect to the listed species or critical habitat
that was not considered in the biological opinion; or (4) if a new
species is listed or critical habitat designated that may be affected
by the identified action.
In such situations, Federal agencies sometimes may need to request
reinitiation of consultation with us, but the regulations also specify
some exceptions to the requirement to reinitiate consultation on
specific land management plans after subsequently listing a new species
or designating new critical habitat. See the regulations for a
description of those exceptions.
Application of the ``Adverse Modification'' Standard
The key factor related to the destruction or adverse modification
determination is whether implementation of the proposed Federal action
directly or indirectly alters the designated critical habitat in a way
that appreciably diminishes the value of the critical habitat as a
whole for the conservation of the listed species. As discussed above,
the role of critical habitat is to support physical or biological
features essential to the conservation of a listed species and provide
for the conservation of the species.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe, in any proposed or final regulation that designates critical
habitat, activities involving a Federal action that may violate section
7(a)(2) of the Act by destroying or adversely modifying such habitat,
or that may be affected by such designation.
Activities that the Service may, during a consultation under
section 7(a)(2) of the Act, consider likely to destroy or adversely
modify critical habitat include, but are not limited to:
(1) Actions that would alter the geomorphology of stream and river
habitats. Such activities could include, but are not limited to,
instream excavation or dredging, impoundment, channelization, sand and
gravel mining, clearing riparian vegetation, and discharge of fill
materials. These activities could cause aggradation or degradation of
the channel bed elevation or significant bank erosion and result in
entrainment or burial of this mussel, and could cause other direct or
cumulative adverse effects to this species and its life cycles.
(2) Actions that would significantly alter the existing flow regime
where this species occurs. Such activities could include, but are not
limited to, impoundment, urban development, water diversion, and water
withdrawal. These activities could eliminate or reduce the habitat
necessary for growth and reproduction of this mussel and its fish
hosts.
[[Page 40130]]
(3) Actions that would significantly alter water chemistry or water
quality (for example, temperature, pH, contaminants, and excess
nutrients). Such activities could include, but are not limited to,
hydropower discharges, or the release of chemicals, biological
pollutants, or heated effluents into surface water or connected
groundwater at a point source or by dispersed release (nonpoint
source). These activities could alter water conditions that are beyond
the tolerances of this mussel, its fish hosts, or both, and result in
direct or cumulative adverse effects to the species throughout its life
cycle.
(4) Actions that would significantly alter stream bed material
composition and quality by increasing sediment deposition or
filamentous algal growth. Such activities could include, but are not
limited to, construction projects, gravel and sand mining, oil and gas
development, coal mining, livestock grazing and other agricultural
practices, irresponsible timber harvest, and other watershed and
floodplain disturbances that release sediments or nutrients into the
water. These activities could eliminate or reduce habitats necessary
for the growth and reproduction of this mussel, its fish hosts, or
both, by causing excessive sedimentation and burial of the species or
its habitat, or nutrification leading to excessive filamentous algal
growth. Excessive filamentous algal growth can cause reduced nighttime
dissolved oxygen levels through respiration, and prevent juvenile
mussels from settling into stream sediments.
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 (DoD), 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
DoD lands within the final 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 we determine
that the benefits of such exclusion outweigh the benefits of specifying
such area as part of the critical habitat, unless we determine, based
on the best scientific data available, that the failure to designate
such area as critical habitat will result in the extinction of the
species. In making the determination to exclude a particular area, the
statute on its face, as well as the legislative history, are clear that
the Secretary has broad discretion regarding which factor(s) to use and
how much weight to give to any factor.
On December 18, 2020, we published a final rule in the Federal
Register (85 FR 82376) revising portions of our regulations pertaining
to exclusions of critical habitat. These final regulations became
effective on January 19, 2021 and apply to critical habitat rules for
which a proposed rule was published after January 19, 2021.
Consequently, these new regulations do not apply to this final rule.
Under section 4(b)(2) of the Act, we may exclude an area from
designated critical habitat based on economic impacts, impacts on
national security, or any other relevant impacts. In considering
whether to exclude a particular area from the designation, we identify
the benefits of including the area in the designation, identify the
benefits of excluding the area from the designation, and evaluate
whether the benefits of exclusion outweigh the benefits of inclusion.
If the analysis indicates that the benefits of exclusion outweigh the
benefits of inclusion, the Secretary may exercise discretion to exclude
the area only if such exclusion would not result in the extinction of
the species. We describe below the process that we undertook for taking
into consideration each category of impacts and our analyses of the
relevant impacts.
In this final rule, we have not considered any areas for exclusion
from critical habitat.
Consideration of Economic Impacts
Section 4(b)(2) of the Act and its implementing regulations require
that we consider the economic impact that may result from a designation
of critical habitat. To assess the probable economic impacts of a
designation, we must first evaluate specific land uses or activities
and projects that may occur in the area of the critical habitat. We
then must evaluate 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 designated. 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 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 when conducting 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 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 Canoe Creek clubshell, which was revised based on comments
received during the comment period (IEc 2021, entire). We began by
conducting a screening analysis of the 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.
[[Page 40131]]
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.
If there are any unoccupied units in the critical habitat designation,
the screening analysis assesses whether any additional management or
conservation efforts may incur incremental economic impacts. This
screening analysis, combined with the information contained in our IEM,
constitutes what we consider our economic analysis of the critical
habitat designation for the Canoe Creek clubshell and 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
designation of critical habitat for the Canoe Creek clubshell, first we
identified, in the IEM dated November 27, 2019, probable incremental
economic impacts associated with the following categories of
activities: (1) Agriculture, (2) poultry farming, (3) grazing, (4)
development, (5) recreation, (6) restoration activities, (7) flood
control, (8) transportation, and (9) utilities. 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. In areas where the Canoe Creek clubshell 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. When this rule becomes effective (see DATES,
above), consultations to avoid the destruction or adverse modification
of Canoe Creek clubshell 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 Canoe
Creek clubshell's critical habitat. Because the designation of critical
habitat for the Canoe Creek clubshell is finalized 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 Canoe Creek clubshell would also likely
adversely affect the essential physical or biological features of
critical habitat. The IEM outlines our rationale concerning this
limited distinction between baseline conservation efforts and
incremental impacts of the designation of critical habitat for this
species. This evaluation of the incremental effects has been used as
the basis to evaluate the probable incremental economic impacts of this
designation of critical habitat.
The evaluation of incremental costs of designating critical habitat
for the Canoe Creek clubshell indicates costs are relatively low. The
critical habitat designation for the Canoe Creek clubshell totals
approximately 58.5 river kilometers (36.3 river miles) of river up to
the bankfull width adjacent to private property across two currently
occupied units in the Big Canoe Creek watershed. Numerous other listed
species co-occur with the Canoe Creek clubshell in these areas (e.g.
Georgia pigtoe, finelined pocketbook (Hamiota altilis), and triangular
kidneyshell (Ptychobranchus greenii)). As a result, all activities with
a Federal nexus occurring in these areas are already subject to section
7 consultation requirements regardless of a critical habitat
designation for the Canoe Creek clubshell. Based on historical
consultation rates for co-occurring species, we anticipate
approximately five or fewer section 7 consultation actions per year in
the critical habitat areas for the Canoe Creek clubshell.
In addition, any actions that may affect the Canoe Creek clubshell
or its habitat in these areas would also affect designated critical
habitat, and it is unlikely that any additional conservation efforts
would be recommended to address the adverse modification standard over
and above those recommended as necessary to avoid jeopardizing the
continued existence of the species. Therefore, when section 7
consultations occur, the only costs expected are those associated with
the additional administrative effort needed to consider adverse
modification during the consultation process. While this additional
analysis would require time and resources by both the Federal action
agency and the Service, we believe that in most circumstances, these
costs would be predominantly administrative in nature and would not be
significant.
Further, we do not expect the designation of critical habitat for
the Canoe Creek clubshell to trigger additional requirements under
State or local regulations or have perceptional effects on markets. We
also do not predict the designation would result in additional section
7 efforts needed to conserve the species. Thus, the annual
administrative burden is unlikely to reach $100 million.
In conclusion, based on our estimate of the number of consultations
and their costs, which would likely be limited to those associated with
administrative efforts, we estimate that the annual costs to the
Service and Action agencies from designating critical habitat for the
Canoe Creek clubshell would be approximately $18,300. Therefore, the
designation is unlikely to meet the threshold of $100 million in a
single year for an economically significant rule, with regard to costs,
under E.O. 12866.
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
[[Page 40132]]
what areas meet the definition of ``critical habitat.'' Nevertheless,
when designating critical habitat under section 4(b)(2), the Service
must consider impacts on national security, including homeland
security, on lands or areas not covered by section 4(a)(3)(B)(i).
Accordingly, we will always consider for exclusion from the designation
areas for which DoD, Department of Homeland Security (DHS), or another
Federal agency has requested exclusion based on an assertion of
national-security or homeland-security concerns.
We 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 section 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 rule, we have determined that the lands within
the designation of critical habitat for the Canoe Creek clubshell are
not owned, managed, or used by the DoD or DHS, and, therefore, we
anticipate no impact on national security or homeland security.
Consequently, the Secretary is not exercising her discretion to exclude
any areas from the final designation based on impacts on national
security.
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 (such as HCPs, safe
harbor agreements (SHAs), or candidate conservation agreements with
assurances (CCAAs)) covering the species in the area, 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 final rule, we have determined that there are
currently no HCPs or other management plans for the Canoe Creek
clubshell, and the designation does not include any Tribal lands or
trust resources. Therefore, we anticipate no impact on Tribal lands,
partnerships, or HCPs from this critical habitat designation and thus,
as described above, we are not excluding any particular areas on the
basis of the presence of conservation agreements or impacts to trust
resources.
Summary of Exclusions Considered Under 4(b)(2) of the Act
During the development of this final rule, we considered any
additional information we received through the public comment period to
determine whether any specific areas should be excluded from the final
critical habitat designation under authority of the Act's section
4(b)(2) and our implementing regulations at 50 CFR 424.19. We are not
excluding any areas from the critical habitat designation under section
4(b)(2) of the Act based on economic impacts, national security
impacts, or other relevant impacts, such as partnerships, management,
or protection afforded by cooperative management efforts.
Required Determinations
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. The Office of Information and Regulatory
Affairs has determined that this rule is not significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while
calling for improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The executive order directs agencies to consider regulatory approaches
that reduce burdens and maintain flexibility and freedom of choice for
the public where these approaches are relevant, feasible, and
consistent with regulatory objectives. E.O. 13563 emphasizes further
that regulations must be based on the best available science and that
the rulemaking process must allow for public participation and an open
exchange of ideas. We have developed this rule in a manner consistent
with these requirements.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.),
as amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to
publish a notice of rulemaking for any proposed or final rule, it must
prepare and make available for public comment a regulatory flexibility
analysis that describes the effects of the rule on small entities
(i.e., small businesses, small organizations, and small government
jurisdictions). However, no regulatory flexibility analysis is required
if the head of the agency certifies the rule will not have a
significant economic impact on a substantial number of small entities.
The SBREFA amended the RFA to require Federal agencies to provide a
certification statement of the factual basis for certifying that the
rule will not have a significant economic impact on a substantial
number of small entities.
According to the Small Business Administration, small entities
include small organizations such as independent nonprofit
organizations; small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents; and small businesses (13 CFR 121.201). Small businesses
include manufacturing and mining concerns with fewer than 500
employees, wholesale trade entities with fewer than 100 employees,
retail and service businesses with less than $5 million in annual
sales, general and heavy construction businesses with less than $27.5
million in annual business, special trade contractors doing less than
$11.5 million in annual business, and agricultural businesses with
annual
[[Page 40133]]
sales less than $750,000. To determine if potential economic impacts to
these small entities are significant, we considered the types of
activities that might trigger regulatory impacts under this designation
as well as types of project modifications that may result. In general,
the term ``significant economic impact'' is meant to apply to a typical
small business firm's business operations.
Under the RFA, as amended, and as understood in light of recent
court decisions, Federal agencies are required to evaluate the
potential incremental impacts of rulemaking on those entities directly
regulated by the rulemaking itself; in other words, the RFA does not
require agencies to evaluate the potential impacts to indirectly
regulated entities. The regulatory mechanism through which critical
habitat protections are realized is section 7 of the Act, which
requires Federal agencies, in consultation with the Service, to ensure
that any action authorized, funded, or carried out by the agency is not
likely to destroy or adversely modify critical habitat. Therefore,
under section 7, only Federal action agencies are directly subject to
the specific regulatory requirement (avoiding destruction and adverse
modification) imposed by critical habitat designation. Consequently, it
is our position that only Federal action agencies will be directly
regulated by this designation. There is no requirement under the RFA to
evaluate the potential impacts to entities not directly regulated.
Moreover, Federal agencies are not small entities. Therefore, because
no small entities will be directly regulated by this rulemaking, the
Service certifies that this final critical habitat designation will not
have a significant economic impact on a substantial number of small
entities.
During the development of this final rule, we reviewed and
evaluated all information submitted during the comment period on the
November 3, 2020, proposed rule (85 FR 69540) that may pertain to our
consideration of the probable incremental economic impacts of this
critical habitat designation. Based on this information, we affirm our
certification that this critical habitat designation will not have a
significant economic impact on a substantial number of small entities,
and a regulatory flexibility analysis is not required.
Energy Supply, Distribution, or Use--Executive Order 13211
Executive Order 13211 (Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use) requires
agencies to prepare Statements of Energy Effects when undertaking
certain actions. OMB has provided guidance for implementing this
Executive Order that outlines nine outcomes that may constitute ``a
significant adverse effect'' when compared to not taking the regulatory
action under consideration. The economic analysis finds that none of
these criteria are relevant to this analysis. Thus, based on
information in the economic analysis, energy-related impacts associated
with Canoe Creek clubshell conservation activities within critical
habitat are not expected. As such, the designation of critical habitat
is not expected to significantly affect energy supplies, distribution,
or use. Therefore, this action is not a significant energy action, and
no Statement of Energy Effects is required.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following finding:
(1) This rule will not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute, or regulation
that would impose an enforceable duty upon State, local, or Tribal
governments, or the private sector, and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or Tribal governments'' with two
exceptions. It excludes ``a condition of Federal assistance.'' It also
excludes ``a duty arising from participation in a voluntary Federal
program,'' unless the regulation ``relates to a then-existing Federal
program under which $500,000,000 or more is provided annually to State,
local, and Tribal governments under entitlement authority,'' if the
provision would ``increase the stringency of conditions of assistance''
or ``place caps upon, or otherwise decrease, the Federal Government's
responsibility to provide funding,'' and the State, local, or Tribal
governments ``lack authority'' to adjust accordingly. At the time of
enactment, these entitlement programs were: Medicaid; Aid to Families
with Dependent Children work programs; Child Nutrition; Food Stamps;
Social Services Block Grants; Vocational Rehabilitation State Grants;
Foster Care, Adoption Assistance, and Independent Living; Family
Support Welfare Services; and Child Support Enforcement. ``Federal
private sector mandate'' includes a regulation that ``would impose an
enforceable duty upon the private sector, except (i) a condition of
Federal assistance or (ii) a duty arising from participation in a
voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal Government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions 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 units do not occur within
the jurisdiction of small 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 Canoe Creek clubshell in a takings implications
assessment. The Act does not authorize the Service to regulate private
actions on private lands or confiscate private property as a result of
critical habitat designation. Designation of critical habitat does not
affect land ownership, or establish any closures, or restrictions on
use of or access to the designated areas. Furthermore, the designation
of critical habitat does not affect landowner actions that do not
require Federal funding or permits, nor does it preclude development of
habitat conservation programs or issuance of incidental take permits to
permit actions that do require Federal funding or permits to go
forward. However, Federal agencies are prohibited from carrying out,
funding, or authorizing actions that would destroy or adversely modify
[[Page 40134]]
critical habitat. A takings implications assessment has been completed
and concludes that this designation of critical habitat for the Canoe
Creek clubshell does not pose significant takings implications for
lands within or affected by the designation.
Federalism--Executive Order 13132
In accordance with E.O. 13132 (Federalism), this rule does not have
significant Federalism effects. A federalism summary impact statement
is not required. In keeping with Department of the Interior and
Department of Commerce policy, we requested information from, and
coordinated development of the critical habitat designation with,
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 rule does not have
substantial direct effects either on the States, or on the relationship
between the national government and the States, or on the distribution
of powers and responsibilities among the various levels of government.
The designation may have some benefit to these governments because the
areas that contain the features essential to the conservation of the
species are more clearly defined, and the physical or biological
features of the habitat necessary for the conservation of the species
are specifically identified. This information does not alter where and
what federally sponsored activities may occur. However, it may assist
State and local governments in long-range planning because they no
longer have to wait for case-by-case section 7 consultations to occur.
Where State and local governments require approval or authorization
from a Federal agency for actions that may affect critical habitat,
consultation under section 7(a)(2) of the Act 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 would not
unduly burden the judicial system and that it meets the requirements of
sections 3(a) and 3(b)(2) of the Order. We are designating critical
habitat in accordance with the provisions of the Act. To assist the
public in understanding the habitat needs of the species, this rule
identifies the physical or biological features essential to the
conservation of the species. The designated areas of critical habitat
are presented on maps, and the rule provides several options for the
interested public to obtain more detailed location information, if
desired.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This rule does not contain information collection requirements, and
a submission to the Office of Management and Budget (OMB) under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) is not
required. We may not conduct or sponsor and you are not required to
respond to a collection of information unless it displays a currently
valid OMB control number.
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
It is our position that, outside the jurisdiction of the U.S. Court
of Appeals for the Tenth Circuit, we do not need to prepare
environmental analyses pursuant to the National Environmental Policy
Act (NEPA; 42 U.S.C. 4321 et seq.) in connection with regulations
adopted pursuant to section 4(a) of 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 critical habitat for the Canoe
Creek clubshell, so no Tribal lands will be affected by the
designation.
References Cited
A complete list of references cited in this rulemaking is available
on the internet at https://www.regulations.gov under Docket No. FWS-R4-
ES-2020-0078 and upon request from the Alabama Ecological Services
Field Office (see FOR FURTHER INFORMATION CONTACT).
Authors
The primary authors of this rule are the staff members of the U.S.
Fish and Wildlife Service Species Assessment Team and Alabama
Ecological Services Field Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Plants,
Reporting and recordkeeping requirements, Transportation, Wildlife.
Regulation Promulgation
Accordingly, we amend part 17, subchapter B of chapter I, title 50
of the Code of Federal Regulations, as set forth below:
PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531- 1544; and 4201-4245,
unless otherwise noted.
0
2. Amend Sec. 17.11, in paragraph (h), by adding an entry for
``Clubshell, Canoe Creek'' to the List of Endangered and Threatened
Wildlife in alphabetical order under CLAMS to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
[[Page 40135]]
----------------------------------------------------------------------------------------------------------------
Listing citations
Common name Scientific name Where listed Status and applicable
rules
----------------------------------------------------------------------------------------------------------------
* * * * * * *
CLAMS
* * * * * * *
Clubshell, Canoe Creek.......... Pleurobema Wherever found.... E................. 87 FR [INSERT
athearni. Federal Register
PAGE WHERE THE
DOCUMENT BEGINS],
July 6, 2022; 50
CFR 17.95(f).\CH\
* * * * * * *
----------------------------------------------------------------------------------------------------------------
0
3. Amend Sec. 17.95, in paragraph (f), by adding an entry for ``Canoe
Creek Clubshell (Pleurobema athearni)'' before the entry for
``Appalachian Elktoe (Alasmidonta raveneliana)'' to read as follows:
Sec. 17.95 Critical habitat--fish and wildlife.
* * * * *
(f) Clams and Snails.
Canoe Creek Clubshell (Pleurobema athearni)
(1) Critical habitat units are depicted for St. Clair and Etowah
Counties, Alabama, on the maps in this entry.
(2) Within these areas, the physical or biological features
essential to the conservation of the Canoe Creek clubshell consist of
the following components:
(i) Suitable substrates and connected instream habitats,
characterized by a geomorphically stable stream channel (a channel that
maintains its lateral dimensions, longitudinal profile, and spatial
pattern over time without aggrading or degrading bed elevation) and
connected instream habitats (such as stable riffle-run-pool habitats
that provide flow refuges consisting of silt-free gravel and coarse
sand substrates).
(ii) A hydrologic flow regime (i.e., the magnitude, frequency,
duration, and seasonality of discharge over time) necessary to maintain
benthic habitats where the species is found; to maintain connectivity
of streams with the floodplain; and to provide for normal behavior,
growth, and survival of all life stages of Canoe Creek clubshell
mussels and their fish hosts.
(iii) Water quality (including, but not limited to, temperature,
conductivity, hardness, turbidity, ammonia, heavy metals, oxygen
content, and other chemical characteristics) necessary to sustain
natural physiological processes for normal behavior, growth, and
viability of all life stages of Canoe Creek clubshell mussels and their
fish hosts.
(iv) Sediment quality (including, but not limited to, coarse sand
and/or gravel substrates with low to moderate amounts of fine sediment,
low amounts of attached filamentous algae, and other physical and
chemical characteristics) necessary for normal behavior, growth, and
viability of all life stages of Canoe Creek clubshell mussels and their
fish hosts.
(v) The presence and abundance of fish hosts, which may include the
tricolor shiner (Cyprinella trichroistia), Alabama shiner (C.
callistia), and striped shiner (Luxilus chrysocephalus), necessary for
recruitment of the Canoe Creek clubshell mussel.
(3) Critical habitat does not include manmade structures (such as
buildings, aqueducts, runways, roads, and other paved areas) and the
land on which they are located existing within the legal boundaries on
the effective date of the final rule.
(4) Data layers defining map units were created from the National
Hydrography High Resolution Dataset, and critical habit units were
mapped using North American Datum (NAD) 1983 Universal Transverse
Mercator (UTM) Zone 16N coordinates. The maps in this entry, as
modified by any accompanying regulatory text, establish the boundaries
of the critical habitat designation. The coordinates or plot points or
both on which each map is based are available to the public at the
Service's internet site at https://www.fws.gov/daphne, at https://www.regulations.gov at Docket No. FWS-R4-ES-2020-0078, and at the field
office responsible for this designation. You may obtain field office
location information by contacting one of the Service regional offices,
the addresses of which are listed at 50 CFR 2.2.
(5) Index map follows:
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(6) Unit 1: Little Canoe Creek East, St. Clair and Etowah Counties,
Alabama.
(i) Unit 1 consists of 9.7 river km (6.0 river mi) of Little Canoe
Creek East, due east of the Town of Steele, in St. Clair and Etowah
Counties, Alabama.
(ii) Map of Unit 1 follows:
[[Page 40137]]
[GRAPHIC] [TIFF OMITTED] TR06JY22.002
(7) Unit 2: Big Canoe Creek/Little Canoe Creek West, St. Clair
County, Alabama.
(i) Unit 2 consists of 48.8 river km (30.3 river mi) of Big Canoe
Creek and its tributary Little Canoe Creek West.
(ii) Map of Unit 2 follows:
[[Page 40138]]
[GRAPHIC] [TIFF OMITTED] TR06JY22.003
* * * * *
Martha Williams
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2022-14312 Filed 7-5-22; 8:45 am]
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