Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Texas Golden Gladecress and Neches River Rose-Mallow, 56071-56120 [2013-22083]

Download as PDF Vol. 78 Wednesday, No. 176 September 11, 2013 Part VI Department of the Interior mstockstill on DSK4VPTVN1PROD with RULES3 Fish and Wildlife Service 50 CFR Part 17 Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Texas Golden Gladecress and Neches River Rose-Mallow; Final Rule VerDate Mar<15>2010 19:16 Sep 10, 2013 Jkt 229001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\11SER3.SGM 11SER3 56072 Federal Register / Vol. 78, No. 176 / Wednesday, September 11, 2013 / Rules and Regulations Ecological Services Field Office (see Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 800–877–8339. SUPPLEMENTARY INFORMATION: DEPARTMENT OF THE INTERIOR ADDRESSES). Fish and Wildlife Service 50 CFR Part 17 [Docket No. FWS–R2–ES–2013–0027, 4500030113] RIN 1018–AZ49 Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Texas Golden Gladecress and Neches River Rose-Mallow Fish and Wildlife Service, Interior. ACTION: Final rule. AGENCY: We, the U.S. Fish and Wildlife Service (Service), designate critical habitat for two Texas plants, Leavenworthia texana (Texas golden gladecress) and Hibiscus dasycalyx (Neches River rose-mallow), under the Endangered Species Act of 1973. Critical habitat for the Texas golden gladecress is located in Sabine and San Augustine Counties, Texas, and for the Neches River rose-mallow in Nacogdoches, Houston, Trinity, Cherokee, and Harrison Counties, Texas. The effect of this regulation is to designate critical habitat for these two East Texas plants under the Endangered Species Act. DATES: This rule becomes effective on October 11, 2013. ADDRESSES: This final rule and other supplementary information are available on the Internet at http:// www.regulations.gov (Docket No. FWS– R2–ES–2013–0027) and also at http:// www.fws.gov/southwest/es/ ElectronicLibrary/ElectronicLibrary_ Main.cfm. These documents are also available for public inspection, by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Texas Coastal Ecological Services Field Office, 6300 Ocean Drive, USFWS Unit 5837, Corpus Christi, TX 78412–5837; telephone 361–994–9005; facsimile 361–994–8262. The coordinates or plot points or both from which the critical habitat maps are generated are included in the administrative record for this rulemaking and are available at http:// www.fws.gov/southwest/es/ ElectronicLibrary/ElectronicLibrary_ Main.cfm, at http://www.regulations.gov at Docket No. FWS–R2–ES–2013–0027, and at the Texas Coastal Ecological Services Field Office, Corpus Christi (see FOR FURTHER INFORMATION CONTACT). FOR FURTHER INFORMATION CONTACT: Edith Erfling, Field Supervisor, U.S. Fish and Wildlife Service, Texas Coastal mstockstill on DSK4VPTVN1PROD with RULES3 SUMMARY: VerDate Mar<15>2010 19:16 Sep 10, 2013 Jkt 229001 Executive Summary Why we need to publish a rule. On September 11, 2012 (77 FR 55968), we published a proposed rule to designate critical habitat for Leavenworthia texana (Texas golden gladecress) and Hibiscus dasycalyx (Neches River rose-mallow). In this rule, we are finalizing our designation for critical habitat under the Endangered Species Act (Act). The Act requires that a final rule be published in order to designate critical habitat for endangered and threatened wildlife to provide protections under the Act. Elsewhere in today’s Federal Register, we are finalizing determination of listing Leavenworthia texana (Texas golden gladecress) as an endangered species and Hibiscus dasycalyx (Neches River rose-mallow) as a threatened species under the Act. The final listing determination rule and supporting documents will publish under Docket No. FWS–R2–ES–2012–0064, and can also be found at the above locations. The critical habitat areas we are designating in this rule constitute our current best assessment of the areas that meet the definition of critical habitat for the Texas golden gladecress and the Neches River rose-mallow. Here we are designating: • Approximately 1,353 ac (547 ha) of critical habitat for the Texas golden gladecress in Sabine and San Augustine Counties; and • Approximately 166.5 ac (67.4 ha) of critical habitat for the Neches River rose-mallow in Cherokee, Houston, Trinity, Harrison, and Nacogdoches Counties, Texas. This rule consists of: A final rule for designation of critical habitat for the Texas golden gladecress and the Neches River rose-mallow. The Texas golden gladecress and the Neches River rosemallow have been listed under the Act. This rule designates critical habitat necessary for the conservation of the species. We have prepared an economic analysis of the designation of critical habitat. In order to consider economic impacts, we have prepared an analysis of the economic impacts of the critical habitat designations and related factors. We announced the availability of the draft economic analysis (DEA) in the Federal Register on April 16, 2013 (78 FR 22506), allowing the public to provide comments on our analysis. We have incorporated the comments and PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 have completed the final economic analysis (FEA) concurrently with this final determination. Peer review and public comment. We sought comments from independent specialists to ensure that our designation is based on scientifically sound data and analyses. We obtained opinions from four knowledgeable individuals with scientific expertise to review our technical assumptions, analysis, and whether or not we had used the best available information. These peer reviewers generally concurred with our methods and conclusions and provided additional information, clarifications, and suggestions to improve this final rule. Information we received from peer review is incorporated in this final revised designation. We also considered all comments and information received from the public during the comment period. Previous Federal Actions All previous Federal actions are described in the final rule to list the Texas golden gladecress as an endangered species and Neches River rose-mallow as a threatened species under the Act published elsewhere in today’s Federal Register. Background This document contains final rules to designate critical habitat for the Texas golden gladecress and Neches River rose-mallow. The document is structured to address the taxa separately under each of the sectional headings that follow. Summary of Comments and Recommendations We requested written comments from the public on the proposed designation of critical habitat for the Texas golden gladecress and Neches River rosemallow during two comment periods. The first comment period associated with the publication of the proposed rule (77 FR 55968) opened on September 11, 2012, and closed on November 13, 2012. We also requested comments on the proposed critical habitat designation and associated draft economic analysis during a comment period that opened April 16, 2013, and closed on May 16, 2013 (78 FR 22506). We received requests for a public hearing, and one was held on May 1, 2013. We also contacted appropriate Federal, State, and local agencies; scientific organizations; and other interested parties and invited them to comment on the proposed rule and draft economic analysis during these comment periods. E:\FR\FM\11SER3.SGM 11SER3 Federal Register / Vol. 78, No. 176 / Wednesday, September 11, 2013 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES3 During the first comment period, we received 15 comment letters directly addressing the proposed critical habitat designation. During the second comment period, we received 22 comment letters addressing the proposed critical habitat designation or the draft economic analysis. During the May 1, 2013, public hearing, five individuals or organizations made comments on the designation of critical habitat for the Texas golden gladecress and Neches River rose-mallow. All substantive information provided during comment periods has either been incorporated directly into this final determination or addressed below. Comments received were grouped by submitter’s affiliation, whether peer reviewer, State (agencies or officials), or public, relating to the proposed critical habitat designation for Texas golden gladecress and Neches River rosemallow. All are addressed in the following summary and incorporated into the final rule as appropriate. Peer Review In accordance with our peer review policy published on July 1, 1994 (59 FR 34270), we solicited expert opinions from six knowledgeable individuals with scientific expertise that included familiarity with the species, the geographic region in which the species occurs, and conservation biology principles and characteristics of their habitats, including the unique geology; as well as land uses common to the region that may bear on the threats to both species. We received responses from four of the peer reviewers. We reviewed all comments received from the peer reviewers for substantive issues and new information regarding listing of the Texas golden gladecress and Neches River rose-mallow. The peer reviewers generally agreed with portions of our assessment, including the threats analysis, and most of our conclusions, although they pointed out areas where additional research would refine our understanding of the two species’ habitat requirements and range. Two peer reviewers agreed with our conclusions that habitat loss and degradation associated with human activities (including energy exploration and production, quarrying, and pine tree plantings in close proximity to glades) as well as the overgrowth of both species’ habitats by invading woody and weedy native and nonnative plants, were adversely affecting the Texas golden gladecress and the Neches River rose-mallow. One peer reviewer also agreed that the Neches River rosemallow has insufficient regulatory protections. One peer reviewer believed VerDate Mar<15>2010 19:16 Sep 10, 2013 Jkt 229001 that critical habitat designation for the Texas golden gladecress would be an improvement to conservation efforts for this species and an associated endangered plant. The peer reviewers pointed out additional information, clarifications, and suggestions for future research that would inform future surveys to refine the geographic range, and help with management and recovery efforts. Peer reviewer comments are addressed in the following summary and incorporated into the final rule as appropriate. Peer Reviewer Comments (1) Comment: Additional outreach to private landowners with potential critical habitat is recommended, prior to the determination. It is essential to make each landowner aware of the issues, regardless of their interest. Our response: With regard to landowners, prior to publication of the proposed rule, in September 2011, we sent letters to 107 entities, including Federal and State elected officials; representatives of Texas Parks and Wildlife Department (TPWD), Texas Commission on Environmental Quality, Texas Department of Transportation (TXDOT), Texas General Land Office, Texas Forest Service, Texas Department of Agriculture, Natural Resources Conservation Service (NRCS), U.S. Army Corps of Engineers, U.S. Forest Service, universities, conservation organizations and other nongovernmental organizations; and representatives of timber and forestry industries and forestry services, informing them of our need to gather and analyze the best available information for our use in developing a proposed rule to list and designate critical habitat for both species. From that point on, we added landowner contacts that were given to us to our notification list. For some sites, land ownership was clarified in file records or through communications with representatives of other organizations. Furthermore, for the Texas golden gladecress, we partnered with TPWD in March 2012 to host a Weches Glades workshop and field tour in San Augustine, to which we invited four private landowners (two with Texas golden gladecress and two with Lesquerella pallida (white bladderpod), an associated endangered plant, populations on their property). As preparation for the field tour, permission to access sites was obtained from these four landowners. The purpose of the workshop and field tour was to acquaint landowners, and agency representatives that work with private landowners, with the glade and outcrop PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 56073 habitats, rare plants, and the Act listing process and implications, particularly as it applies to plants. In addition to these landowners, 24 other individuals were invited to the workshop, including two San Augustine County commissioners, the Mayor of San Augustine, the Chairman of the local Soil and Water Conservation District, NRCS, Texas Forest Service, a private forestry services company, and a mining company. Of the 28 invitees, 17 attended the workshop and field tour. As additional outreach to Neches River rose-mallow landowners, land managers, and agencies that work with them, TPWD organized a workshop and two-day field trip in August, 2012. The workshop also furnished an opportunity to explain the listing process and its applicability for plants. A pre-field trip workshop allowed information to be presented to 45 attendees that included the Texas Land Conservancy (owner of the Neches River rose-mallow Lovelady site) and TXDOT (owner of the right-ofway (ROW) sites along state highway (SH) 204 and 94). On September 11, 2012, we sent letters to 164 entities notifying them of the proposed rule publication in the Federal Register, including Federal and State elected officials; local elected officials (including county judges within the range of the species); representatives of TPWD, Texas Commission on Environmental Quality, TXDOT, Texas General Land Office, Texas Forest Service, Texas Department of Agriculture, NRCS, U.S. Army Corps of Engineers, U.S. Forest Service, universities, conservation organizations and other non-governmental organizations; and representatives of timber and forestry industries and forestry services. On April 16, 2013, the day of Federal Register publication of the notice of availability of the draft economic analysis and reopening of the proposal to list the plants and designate critical habitat, we emailed letters to 157 people including representatives of agriculture, timber, oil and gas, and mining industries; local elected officials from the counties in question; agency staff that work with landowners, and those landowners for whom we had email addresses. Within 2 days of publication in the Federal Register, we also sent 208 letters by mail to state and local elected officials (including all county judges and commissioners); industry representatives; academics; conservation organizations; State, Federal, and local agencies: And all individual landowners who had been identified through the past 2 years since E:\FR\FM\11SER3.SGM 11SER3 mstockstill on DSK4VPTVN1PROD with RULES3 56074 Federal Register / Vol. 78, No. 176 / Wednesday, September 11, 2013 / Rules and Regulations our initial information solicitation in September 2011. (2) Comment: Two peer reviewers commented on the critical habitat maps as they appear in the proposed rule. Specifically for the Neches River rosemallow’s critical habitat unit 1 it seems that the map does not depict critical habitat within the State highway rightof-way (SH ROW); however, Table 8 specifically states that 1.1 ac (0.45 ha) of critical habitat is present within the SH ROW. There might be confusion between landowners and other interested parties about whether or not their property is within critical habitat because of the map resolution and detail. Our Response: In the case of the rosemallow’s critical habitat unit 1, the designated critical habitat includes both SH ROW and private land. For both species, the intended use of the critical habitat unit maps is to identify the general areas where the Texas golden gladecress’ or the Neches River rosemallow’s critical habitat is designated. Although we have tried to include landmarks, such as labeled roads, to help readers find the location of the critical habitat units, the scale of the maps is such that the level of detail and resolution may not help in identifying individual land ownership. 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 http://www.fws.gov/southwest/ es/ElectronicLibrary/ElectronicLibrary_ Main.cfm, http://www.regulations.gov at Docket No. FWS–R2–ES–2013–0027 and at the field office responsible for this designation. (3) Comment: One peer reviewer thought that critical habitat designation for the Texas golden gladecress was a good idea ‘‘if it allows the exclusion of some Weches outcrops that are unsuitable . . . and is done on a fine scale . . . of blocks, say one mile in diameter’’. This reviewer believed this approach would ensure that economic activity based on mining is not adversely impacted. He indicated his opinion that Weches mining could be done in such a way as to allow both activities to continue. Our response: Although it is unclear if the peer reviewer’s comment about the size of critical habitat blocks (one mile in diameter) has any scientific basis, we are interpreting him to mean that relatively small areas of critical habitat could be included or excluded from designation to allow for quarrying outside of the designated critical habitat. We are required to designate critical habitat for geographical areas that are occupied by the species at the VerDate Mar<15>2010 19:16 Sep 10, 2013 Jkt 229001 time of listing, which contain the physical or biological features essential to the conservation of the species and which may require special management considerations or protection. Based on this requirement the Service designated critical habitat for the species based on the presence of the features essential to its conservation and its tight association with the Weches Formation and associated soils (Singhurst 2011a, pers. comm.). To determine the boundaries of critical habitat units we used a geographic information system (GIS) to overlay the appropriate soil maps over the occupied areas. The perimeter of Texas golden gladecress critical habitat was mapped by following the borders of the appropriate U.S. Department of Agriculture soil layers (see ‘‘Mapping Texas Golden Gladecress Critical Habitat’’ section of this final rule). Section 7 of the Act requires Federal agencies, in consultation with the Service, to ensure that any action authorized, funded, or carried out by a Federal agency (thereby constituting a Federal nexus) is not likely to result in the destruction or adverse modification of critical habitat. If there is not a Federal nexus for a given action, then critical habitat designation, including on private lands, does not restrict any actions that destroy or adversely modify critical habitat. We have determined that quarrying of glauconite in Texas does not require Federal permits or have any other Federal nexus, therefore section 7 consultation is not expected for quarrying activities. If a person wishes to develop private land, with no Federal nexus, and in accordance with State law, then destroying or adversely modifying critical habitat does not violate the Act. The Service can and will provide technical assistance to mining (quarrying) companies to minimize and avoid impacts to the Texas golden gladecress critical habitat if such assistance is requested. (4) Comment: In the case of the Neches River rose-mallow, a peer reviewer agreed that there is not a mechanism for protection other than perhaps existing wetland regulations under the U.S. Army Corps of Engineers. Our Response: Section 7 consultation for U.S. Army Corps of Engineers-issued permits is one avenue regulating impacts to the Neches River rosemallow. Additionally, four of the 11 extant populations of Neches River rosemallow are found on the Davy Crockett NF where the U.S. Forest Service considers the Neches River rose-mallow as a Regional Forester’s Sensitive Species and its habitat is managed under A Revised Land and Resource PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 Management Plan for National Forests and Grasslands in Texas. This provides some level of species and habitat protection; however, their plan is not specific. Section 7(a)(2) of the Act requires Federal agencies to ensure that activities they authorize, fund, or carry out (i.e., projects with a Federal nexus) are not likely to jeopardize the continued existence of the species or destroy or adversely modify its critical habitat. If a person wishes to develop private land with no Federal nexus, in accordance with State law, then the potential destruction, damage, or movement of endangered or threatened plants does not violate the Act. (5) Comment: In the case of the Texas golden gladecress, the Service needs a better understanding of the variability of the Weches Formation across the numerous counties which the formation underlies when determining what may constitute the physical or biological features for the species and where these features are currently found. The Service should look at variations in calcium availability and long-term pH changes across the formation in order to identify more potential sites at which to survey for the Texas golden gladecress. Our response: We recognize that variability of Weches outcrops does exist across the Weches Formation throughout the numerous counties under which it is found. We agree that a better characterization of the geology and soils underlying known Texas golden gladecress populations could provide useful information. However, there are likely other factors characterizing individual outcrop sites that support the Texas golden gladecress that may also be important. Further, the Service must use the best scientific and commercial data available at the time of critical habitat determination. Determining the chemical components of the geological formations beneath known glade sites is not a feasible accomplishment within the timeframe we have to publish our final determination. This research would be addressed in recovery planning. For purposes of this final rule designating critical habitat, we used the more general Weches Formation outcrops descriptions, and we more specifically relied on the geologic and soils information available from one known Texas golden gladecress population site, as well as from one white bladderpod site. Please see the ‘‘Criteria Used To Identify Critical Habitat for Texas Golden Gladecress’’ and ‘‘Mapping Texas Golden Gladecress Critical Habitat’’ sections for the Texas golden gladecress in this final rule for more information. E:\FR\FM\11SER3.SGM 11SER3 mstockstill on DSK4VPTVN1PROD with RULES3 Federal Register / Vol. 78, No. 176 / Wednesday, September 11, 2013 / Rules and Regulations (6) Comment: Clarification on exclusions of critical habitat within SH ROWs was requested by a peer reviewer and the State. There is a contradiction within the proposed rule regarding critical habitat in SH ROWs for the Neches River rose-mallow versus the Texas golden gladecress. The proposed rule states that, for Neches River rosemallow, ROW would be excluded for the area designated as critical habitat, but ROW is not considered excluded from critical habitat units for the Texas golden gladecress. For Neches River rose-mallow critical habitat unit 1, the map in the proposed rule does not seem to show critical habitat within the SH ROW; however, Table 8 specifically states that 1.1 ac (0.45 ha) of critical habitat is present within the SH ROW. Our Response: Language in the proposed rule indicating that Neches River rose-mallow’s critical habitat excluded SH ROW was an error and has been corrected in this determination. Extant populations of both Neches River rose-mallow and Texas golden gladecress occur in SH ROWs, so the ROWs at these sites would be considered occupied habitat. (7) Comment: A peer reviewer suggested that the Service consider excluding the ‘‘filled’’ portions of the TXDOT ROWs within the critical habitat units. In low areas such as floodplains, valleys, etc., TXDOT constructs the paved surface of the road on large amounts of ‘‘fill’’ (Adams 2013a, pers. comm.). Fill consists of clay soil, which is not suitable habitat for the either plant. This fill material is often brought to a site to elevate the road bed. These areas are then revegetated to reduce erosion. The size of a fill area is dependent on the existing slope and width of the roadway or bridge (Adams 2013a, pers. comm.). This reviewer has never witnessed the Neches River rosemallow or the white bladderbod (habitat associate of the Texas golden gladecress) growing on the front slope (i.e., the area immediately adjacent to the road) of a TXDOT ROW. Our Response: Portions of both species critical habitat are within TXDOT ROWs. Two Texas golden gladecress and three Neches River rosemallow sites extend into ROWs managed by TXDOT. The Service agrees that neither species grows on fill material or immediately adjacent to the road edge. Given the Texas golden gladecress’ specialized habitat requirements, and the Neches River rose-mallow requirement of hydric alluvial soils, it is unlikely that either would survive on, or spread onto, areas consisting of fill material used by the TXDOT. Both species grow farther VerDate Mar<15>2010 19:16 Sep 10, 2013 Jkt 229001 downslope within the ROW where suitable soils still exist. The ROW immediately adjacent to the road, containing the fill material lacks the primary constituent elements for these species. The unfilled portions of the ROWs, where the plants are able to persist, do retain the primary constituent elements that support the life-history processes of the species, while the built-up, paved and filled portions of the roadway do not. Based on this information, the Service includes the fill area along roadways as developed areas that are not included in critical habitat designation because these areas do not meet the definition of critical habitat for either species. (8) Comment: There are ongoing service improvements, including installation of communication, electric power, water and sewer lines, taking place in rural areas, some of which occur in highway ROWs and have potential to occur in Texas golden gladecress critical habitat (Walker 2012, pers. comm.). Our Response: We acknowledge that the installation of new service lines (e.g., communication, water, domestic gas, and power lines) could potentially occur in more rural areas and these activities typically occur in road ROWs, such as where the Texas golden gladecress occurs. There are two known Texas golden gladecress sites that extend into road ROWs as well as three Neches River rose-mallow sites. Section 7 of the Act requires Federal agencies, in consultation with the Service, to ensure that any action authorized, funded, or carried out by a Federal agency (thereby constituting a Federal nexus) is not likely to result in the destruction or adverse modification of critical habitat. If there is not a Federal nexus for a given action, then critical habitat designation, including on private lands, does not restrict any actions that destroy or adversely modify critical habitat. If a person wishes to develop private land, with no Federal nexus, and in accordance with State law, then destroying or adversely modifying critical habitat does not violate the Act. The Service can and will provide technical assistance to minimize and avoid impacts to the Texas golden gladecress critical habitat if such assistance is requested. Comments From States Section 4(i) of the Act states, ‘‘the Secretary shall submit to the State agency a written justification for his failure to adopt regulations consistent with the agency’s comments or petition.’’ Comments received from the State regarding the proposal to designate PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 56075 critical habitat for the Texas golden gladecress and Neches River rosemallow are addressed below. (9) Comment: One state commenter and two public commenters noted that the Neches River rose-mallow has not been seen at some sites for over a decade. Of the 11 sites considered to be currently occupied by the Neches River rose-mallow, three have not been observed in more than 10 years. The Camp Olympia site has not been relocated since 1978 despite surveys in 1992 and 1993 (Warnock 1995, p. 6). In fact the site was listed as extirpated or historical by Warnock (1995). The Champion site was last observed in 2001. The site has apparently been logged. This site should be revisited before considering it currently occupied. Additionally, one commenter pointed out that the Harrison County population has not been relocated since 1980, perhaps owing to its imprecise location (ca. 5 miles (mi) (8.05 kilometers (km) south of Hallsville) and suggested that it seems difficult to know with any certainty that this site is currently occupied. Using aerial photography to delineate a 20-ac (8.1ha) site based on a previous interpretation of a vague location does not lead to a precise location on which to base critical habitat. The Service cannot assume that the habitat has remained intact when the location of the occupied site is unverifiable. Our Response: We consider the three sites referenced by the commenter (Harrison County, Champion, and Camp Olympia) to be occupied by the Neches River rose-mallow for the purposes of critical habitat. Two voucher specimens were collected from Camp Olympia in 1977 by E. Marsh and in 1978 by E. Marsh and C. McLeod; both were identified as the Neches River rosemallow (TXNDD 2012, pp. 58–59), confirming the species occurrence at this site. The location information from these plant specimens collected in 1977 was used by Warnock (1995) to relocate the population. In Warnock’s status report, he described the location of the site, ‘‘beyond the end of Farm-to-Market Road 3188, 200 feet from the water’s edge along Lake Livingston’’ and provided the latitude and longitude of the site as well (1995, p. 6). Attempts were made on foot in 1992 and by canoe in 1993 to relocate this population (Warnock 1995, p. 6), but without success. However, there are several reasons why the plants may not have been located. Dense vegetation along the shoreline could have made the plant from that distance not easily discernible. Also, the nature of the Neches River rose-mallow habitat, E:\FR\FM\11SER3.SGM 11SER3 mstockstill on DSK4VPTVN1PROD with RULES3 56076 Federal Register / Vol. 78, No. 176 / Wednesday, September 11, 2013 / Rules and Regulations especially at sites with fluctuating water levels (like oxbows, sloughs, sand bars of river systems), is such that the zone in which the plants are located could shift or the plants perhaps be killed back when conditions are too wet or too dry, but the plants may then re-establish from seed when conditions are suitable (Warnock 1995, p. 6). The Champion Site was first observed in 1996 with several hundred plants, and revisited in 1997, 1998, and 2001. In 1997, cuttings from plants and seeds were collected and given to Mercer Arboretum. The plants that were observed in 1998 did not have reproductive structures present but were identified as likely Neches River rosemallow. In 2001, researchers found 300– 400 plants. Logging at this site has occurred in the recent past but there is not information to show that the Neches River rose-mallow is no longer present at this site. The seed bank viability of this species is still not clearly understood, but there is potential that even if above-ground plant parts were removed, the seed bank may still be intact. Further, since this species requires open habitat, the removal of canopy species could benefit the Neches River rose-mallow by providing more suitable habitat. For the Harrison Site, we used the best scientific and commercial data available at the time the proposed rule was published. A voucher specimen was collected in 1980 and was confirmed in 2011 by TPWD and Stephen F. Austin State University (SFASU) researchers as Hibiscus dasycalyx. Because we received new information from a commenter that this critical habitat unit was in part an operating lignite mine, known as South Hallsville No. 1 (Texas Mining and Reclamation Association 2013, p. 3), we made inquiries with the Railroad Commission of Texas (RRC) about locations and status of mines in Harrison County. The RRC confirmed that only two mines were in operational status in Harrison County, one of which included the South Hallsville mine (referred to by the commenter) but that this mine was located northeast of the critical habitat Unit 2. The RRC provided new information that the critical habitat unit was a sedimentation pond of a reclaimed (nonfunctional) lignite mine; inactive since the late 1990’s. Because the site is a sedimentation pond, and not an area that is being actively excavated for extraction of lignite, the wetland edge associated with the pond may still support the Neches River rose-mallow. The best available scientific and commercial data does not indicate that VerDate Mar<15>2010 19:16 Sep 10, 2013 Jkt 229001 the Harrison County Site has been altered to the point that the species has been eliminated from this site. Regarding delineation of critical habitat at these sites, we used satellite imagery from Google Earth to compare available habitat images from 1995 and 2011 to look for habitat alteration that would make these sites unsuitable for the Neches River rose-mallow. It did not appear that Neches River rose-mallow habitat had been altered to the point that the areas would not contain the physical or biological features essential to the conservation of the species (see the ‘‘Final Critical Habitat Designation’’ for the Neches River Rose-mallow section of this final rule for more information). The Act requires that we use the best scientific and commercial information available regardless of the age of the information. The criteria for critical habitat were evaluated using the best scientific and commercial data available including plant surveys that occurred, in some cases, more than 20 years ago. Some areas have not been revisited; however, absence of evidence does not equate to evidence that the plant has been extirpated from an area. For example, SH 230 ROW had not been seen since 2002, and the site was considered extirpated. However, during this comment period we received information that the Neches River rosemallow was observed in 2012 by a graduate student from SFASU (Melinchuk 2012, p. 3). This is an example of the potential that this species may go undetected for a period of time due to the biology of the species. We also relied on the existence of voucher specimens to help confirm the species presence at these sites in the past. It is often the case that biological information may be lacking for rare species; however, we reviewed all available information and incorporated it into our final rule. We used the best scientific and commercial data available in assessing occupancy, recognizing the limitations of some of the information. We acknowledge that additional surveys and continued monitoring of existing plots would be valuable and should be considered as a recovery action for these species. The best scientific and commercial data available suggest the site is still occupied by the Neches River rose-mallow and contain at least one of the identified physical and biological features essential to the conservation of the species. The extent to which the occupancy of this unit is in question, we have alternatively designated Units 2, 9, and 11 under section 3(5)(A)(ii) of the Act because we consider them to be PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 essential for the conservation of the Neches River rose-mallow, regardless of occupancy data. Including these units in the designation of critical habitat for the Neches River rose-mallow aligns with the conservation strategy for this species. (10) Comment: One state commenter, in addition to two public commenters, expressed their belief that these species have not been fully studied. They indicated that there are significant concerns with the quality of data and analysis the Service used for its determination. They believe that the proposal is based largely on inconclusive reports and vast speculation about operations thought to affect habitats, existing regulatory mechanisms, conservation efforts, species populations, and potential threats that fail to provide any sound scientific foundation on which to justify the listing and critical habitat designation of these species. Our Response: It is often the case that biological information may be lacking for rare species; however, we considered the best available scientific and commercial information and incorporated it into our final rule. We sought comments from independent peer reviewers to ensure that our designation is based on scientifically sound data, assumptions, and analysis. We did not receive information that the science we used was unsound. We solicited information from the general public, non-governmental conservation organizations, State and Federal agencies that are familiar with the species and their habitats in East Texas, academic institutions, and groups and individuals that might have information that would contribute to an update of our knowledge of the Texas golden gladecress and the Neches River rosemallow, as well as the activities and natural processes that might be contributing to the decline of either species. We used information garnered from this solicitation in addition to information in the files of the Service, TPWD, the Texas Natural Diversity Database’s (TXNDD’s) Elements of Occurrence records for both species, published journal articles, newspaper and magazine articles, status reports contracted by the Service and TPWD, reports from site visits, and telephone and electronic mail conversations with knowledgeable individuals. We also used satellite and aerial imagery to ascertain changes in land cover and land use at historical population sites and to determine whether the presence of primary constituent elements for each species were still in place. Additionally, E:\FR\FM\11SER3.SGM 11SER3 mstockstill on DSK4VPTVN1PROD with RULES3 Federal Register / Vol. 78, No. 176 / Wednesday, September 11, 2013 / Rules and Regulations we used the results of population monitoring from site visits to look at abundance, and if enough information was available, to get an idea of trends in the populations. In October 2011, we also made field trips to known sites where we were granted access, to verify land uses and contribute to the veracity of our threats analysis. In March of 2012, we helped to organize and carry out a workshop and field tour of Texas golden gladecress sites for the purposes of assisting landowners and agricultural agencies with becoming familiar with the species and its habitat. We also revisited accessible Texas golden gladecress sites. In August 2012, we attended a Neches River rose-mallow workshop and field tour conducted by TPWD and revisited Neches River rosemallow population sites. We used the best scientific and commercial information available in assessing population status, recognizing the limitations of some of the information. (11) Comment: The critical habitat designations will have a negative impact on agricultural-based economies in rural counties in their district, including raising of cattle and forage, poultry, timber, and row crops. Our response: As discussed in section 4.7 of the draft economic analysis, for activities such as agriculture, husbandry, and forestry, a Federal nexus may result from technical assistance to private landowners from the U.S. Department of Agriculture’s NRCS. In such instances, consultation regarding potential effects of the activities on critical habitat would occur. Following discussions with the NRCS, it was determined that the involvement of the NRCS in projects within the critical habitat designation within the timeframe of the study is unlikely. For this reason, consultation is not expected to occur, and the draft economic analysis does not anticipate critical habitat designation to affect these activities. As stated in the proposed rule, the designation of critical habitat does not impose a legally binding duty on nonFederal 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 nonFederal 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 VerDate Mar<15>2010 19:16 Sep 10, 2013 Jkt 229001 critical habitat rests squarely on the Federal agency. As discussed in the draft economic analysis, the designation of critical habitat for the Texas golden gladecress is likely to result in relatively minor administrative impacts, with minimal project modifications likely to result from the designation of critical habitat. All incremental costs are administrative in nature and result from the consideration of adverse modification in section 7 consultation under the Act. Only those projects with a federal nexus would require section 7 consultations with the Service and then it is the responsibility of the federal action agency to consult with the Service, not the private individual or company. Further, all units are occupied by the plant and will require consultation regardless of the designation of critical habitat. In addition, project modifications necessary to avoid adverse modification of critical habitat are indistinguishable from those necessary to avoid jeopardizing the species (see the Service’s reasoning in the economic analysis, Appendix B). (12) Comment: One state commenter noted that he was unable to replicate the results presented in Exhibit 4–3 using the formulae presented in Exhibit 2–4. Our response: The results of the analysis follow from the formulae presented. The cost estimates in the draft economic analysis exhibits are presented as rounded numbers (rounded to two significant digits) but were calculated based on unrounded numbers. (13) Comment: One state comment on the draft economic analysis inquired why the annualized values are identical for both the 3 percent and 7 percent discount rate calculations. Our response: The annualized value effectively illustrates the economic impact as a stream of payments in equivalent annual payments over a set period of time. If the costs of an activity are expected to be incurred equivalently over the 20-year period of the analysis, the annualized value under any rate will be the annual cost of the activity. For those critical habitat units where the undiscounted calculated costs over the 20-year period are equal in each year, the annualized values are identical for both the 3 percent and 7 percent discount rate. Additionally, if the undiscounted annual costs are equivalent but occur in some pattern over the 20-year period (i.e., they are incurred every other year), the difference in annualized values between discount rates will be very minor. In these cases, with rounding applied, the values are identical in the results table. PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 56077 (14) Comment: One state comment questioned the selection of the discount rate. The comment noted that the Office of Management and Budget’s regulatory impact analysis primer includes guidance on the use of a lower discount rate (1 percent to 3 percent) when intergenerational effects are of concern. Our response: The discount rates of three and seven percent used in the economic analysis are in accordance with the Office of Management and Budget’s guidance on the conduct of regulatory impact analysis. The use of a lower discount rate, such as one percent, may be applicable when intergenerational benefits or costs are expected to accrue from regulation. With a 20-year timeframe, we do not consider this analysis to be capturing intergenerational impacts. In the intergenerational discounting literature, a minimum time horizon for considering intergenerational effects is generally 50 years. However, in response to a request received in this comment, we performed a sensitivity analysis using the one percent discount rate. The total present value cost employing a one percent discount rate is $690,000, approximately 13 percent greater than the total, present value cost determined using a three percent discount rate and 35 percent greater than the cost determined using a seven percent discount rate. (15) Comment: Benefits should have been quantified in the economic analysis to allow for a direct comparison between monetized costs and benefits. Further, the unavailability of existing studies specific to the species considered in the analysis should not preclude the estimation and quantification of benefits. Our response: As described in Chapter 5 of the draft economic analysis, monetization of benefits requires information on how the incremental conservation efforts described in the report affect the recovery probability of either the Texas golden gladecress or Neches River rosemallow and findings regarding the public’s willingness-to-pay for the incremental change in recovery for these species, or similar species. No such studies currently exist and such primary research is outside the scope of the analysis. (16) Comment: One state comment suggested that while the study area is defined in the draft economic analysis to be ‘‘all lands proposed for critical habitat designation,’’ the monetization of economic impact should be across the entire range of the species. Our response: Because the draft economic analysis quantifies the E:\FR\FM\11SER3.SGM 11SER3 56078 Federal Register / Vol. 78, No. 176 / Wednesday, September 11, 2013 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES3 incremental impact of critical habitat designation, the geographic scope of the analysis is limited to the area over which the critical habitat rule may affect projects or activities. (17) Comment: Specifically with regard to transportation and utility projects, there are trickle-down costs. Conducting section 7 consultations adds costs to projects and these costs may get passed along to consumers. Our Response: Section 4.2 of the draft economic analysis evaluates impacts on transportation activities, and detailed discussions with TXDOT informed the quantitative and qualitative assessment of these impacts. Based on expected activities and consultations, the incremental effect of designating critical habitat on transportation projects was found to be modest. Over the 20-year period of the study, we project incremental costs for transportation activities to be $66,000 for the Texas golden gladecress critical habitat and $15,000 for the Neches River rosemallow habitat. For utility projects, an overall undiscounted cost to the three pertinent electric cooperatives of $25,300 over the 20-year timeframe of the study was calculated and the analysis did not anticipate these costs to influence the utility rates charged to customers (for further discussion see Our Response to Comment 24 below). Public Comments (18) Comment: One commenter requested clarification regarding lack of access being granted to their site. The Camp Olympia landowner stated that they have been at the site since the 1970’s and access has never been requested nor denied. This landowner has also searched his property for Neches River rose-mallow and not found it. Two major hurricanes and a severe drought have caused major habitat alterations including a loss of trees and plants. The commenter believes this unit should not be considered for critical habitat or the species for listing. Our Response: We stated in the proposed rule that we considered the Camp Olympia site to be an extant population (i.e., occupied). We based this on the best scientific and commercial information available at the time of listing, which was the documented presence of the Neches River rose-mallow at this site based on voucher specimens collected in 1977 and in 1978. The best scientific and commercial information available indicates that the species is likely to persist because the habitat has not been altered such that it would no longer support the species or that the VerDate Mar<15>2010 19:16 Sep 10, 2013 Jkt 229001 population had been extirpated since 1978. The site has only been visited by a species expert twice since 1978. Although the site was surveyed by Klips in 1992 and Warnock in 1993 without success, leading Warnock (1995, p. 6) to list the site as extirpated or historical, there is reason to believe that the plants may still be there (See Our Response to Comment 9). In addition to site conditions that can change with fluctuations in water level, resulting in shifting of the plants’ location, Warnock’s 1993 site survey was conducted from the water (canoe), not from the land, and the presence of the Neches River rose-mallow may have been hidden from view by dense vegetation at the water’s edge. The site could have been overgrown, the plant may not have been in bloom at the time of the survey, and environmental factors could have hindered the production of flowers at the time of the survey. Although the landowner referred to changes in habitat conditions at the Camp Olympia site due to hurricanes and drought, using Google Earth satellite imagery to compare available habitat from 1995 and 2011 we could not ascertain habitat alteration that would make sites unsuitable for the Neches River rose-mallow. Consequently, the best scientific and commercial data available is still the 1978 record from the TXNDD and we considered this site to be occupied. The extent to which the occupancy of this unit is in question, we have alternatively designated Units 2, 9, and 11 under section 3(5)(A)(ii) of the Act because we consider them to be essential for the conservation of the Neches River rose-mallow, regardless of occupancy data. Including these units in the designation of critical habitat for the Neches River rose-mallow aligns with the conservation strategy for this species. (19) Comment: As it currently is drawn, the area being proposed for critical habitat unit 4 (SH 204 ROW or Mud Creek) is only a small portion of a historically much larger piece of Neches River rose-mallow habitat. The site has dwindled over time due to mowing and herbicide practices by private landowners. Our response: The area not designated as critical habitat does not have an open canopy providing partial to full sun exposure. The Neches River rosemallow is typically found in an open canopy (Warnock 1995, pp. 11, 13), but plants also grow in partial sun (as is the case at SH 204 ROW). However, sunlight is needed for blooming as the blooming period may only last 1 day (Snow and Spira 1993, p. 160). PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 (20) Comment: One commenter questioned the validity of including the introduced Neches River rose-mallow critical habitat unit at the Mill Creek Gardens, in Nacogdoches County. Although the site may be the only remaining pure site for the Neches River rose-mallow, seedlings and seeds have been used for other reintroduction sites. Also, this site is along an emergency spillway of a dam where the soil is much different than any of the natural populations. Another commenter indicated that the four natural populations of Neches River rosemallow need protection, but does not believe the remaining seven sites of the Neches River rose-mallow should be designated as critical habitat. The Mill Creek site is in the emergency spillway of an 8-acre lake, and the site bears little resemblance to any natural site, specifically the soil. The only management since 1995 has been annual mowing or an occasional burn. Our response: For the purpose of designating critical habitat for the Neches River rose-mallow, we included all currently occupied populations sites, as required by section 3(5)(A)(i) of the Act. We defined occupied areas as sites where Neches River rose-mallow had been documented based on the most recent field surveys that were available to us as of 2011, including recent reports and survey information from the Davy Crockett NF, TPWD, TXDOT, and observations by species experts (Warnock 1995, p. 6; Miller 2011, pers. comm.; TXNDD 2012a, entire). Based on this information we determined that there are 11 currently occupied areas for the Neches River rose-mallow in Trinity, Houston, Cherokee, Nacogdoches, and Harrison Counties in East Texas. Although two of these areas have not been verified since the 1980s and mid-1990s, the best scientific and commercial data available did not show these sites to have been modified such that they no longer had the physical or biological features essential for the Neches River rose-mallow, therefore we considered them presently occupied. Populations that were successfully introduced were included with the natural populations because the introduced sites are considered to have at least one of the primary constituent elements required by the species and because the species is still present at the site. The primary constituent elements of the Mill Creek Gardens site include its location within Mill Creek (part of the Angelina River basin), open-canopy habitat with full sun, and the presence at the site of alluvial, hydric soils. (21) Comment: Many comments were received expressing concern about the E:\FR\FM\11SER3.SGM 11SER3 mstockstill on DSK4VPTVN1PROD with RULES3 Federal Register / Vol. 78, No. 176 / Wednesday, September 11, 2013 / Rules and Regulations negative impact the critical habitat designations (particularly the rosemallow critical habitat unit 4) may have on the Lake Columbia water supply project in Cherokee County and the future water supply of the region. Most prominently, it was proposed that the costs incurred by the Angelina and Neches River Authority (ANRA) and local communities as a result of the critical habitat designation were either not considered or were estimated to be far lower than ANRA projects for itself. Our Response: As documented in section 4.5 of the draft economic analysis, water management activities were evaluated for the Neches River rose-mallow. Critical habitat unit 4, located downstream from the proposed reservoir, is considered to be occupied for the purposes of critical habitat. Thus, a consultation with the Army Corps of Engineers is expected to take place regardless of critical habitat designation. In addition, the Service anticipates that critical habitat designation will not generate any requests for project modifications above and beyond what would already be recommended due to the presence of the species. As such, the costs associated with critical habitat for this unit are those incremental administrative costs of considering critical habitat during the consultation. Angelina and Neches River Authority is anticipated to incur $2,080 in costs for the additional consideration of critical habitat as a third party participant during the formal consultation process between the Service and Army Corps of Engineers. The Army Corps of Engineers does not anticipate any other future section 7 consultations for the Neches River rosemallow within the timeframe of this analysis (Industrial Economics 2013, pp. 4–11). (22) Comment: The threat to the SH 204 ROW site (unit 4) by ‘‘water management strategies’’ is speculative. There are no scientific data that demonstrate the level of hydrological change that would impact the Neches River rose-mallow, therefore the Service is speculating about this threat. Our Response: Some degree of hydrologic change has been seen at most of the Neches River rose-mallow sites, with the exception of some private land sites for which information is lacking. The Neches River rose-mallow likely requires high precipitation and flowing water or flood events to disperse seed (Warnock 1995, p. 20; Scott 1997, p. 8; Reeves 2008, p. 3), and although the Neches River rose-mallow is adapted to persist during dry portions of the year, a complete lack of water can diminish seed production, and affect range VerDate Mar<15>2010 19:16 Sep 10, 2013 Jkt 229001 expansion and genetic exchange. Since Neches River rose-mallow is so waterdependent, hydrological changes can have significant impacts on the species. Regarding the SH 204 ROW site (unit 4) in particular, the best scientific and commercial data available suggests that the construction of the Lake Columbia reservoir project will divert downstream water, thereby potentially dewatering the Neches River rose-mallow population site. Project details are still being worked out by involved agencies, therefore, we do not know the amount of water that is projected to remain flowing to this site or if future water management practices or decisions will allow for seasonal flooding of the site. Please reference the ‘‘Hydrological Change’’ section of this rule for more information on this project and projected hydrological changes to this and other sites. (23) Comment: The Service did not completely ascertain, or was unwilling to admit to, the total economic impact to rural East Texas counties and the State of Texas in general. Water is a critical issue, and the commenter expressed their belief that the designations could seriously restrict construction of critical water resource projects and possible transport of water through pipelines. Our Response: The only water supply project brought to the Service’s attention was the proposed Lake Columbia project (Industrial Economics 2013, pp. 4–11), which is a water supply reservoir. The Service addressed this project in our proposed rule, final rule, and economic analysis. As we stated in the proposed rule, 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 nonFederal 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. (24) Comment: Two electric cooperatives operating in East Texas expressed concern about the designation of critical habitat increasing costs for the utility, which would result in higher electricity rates for local users. Our Response: The U.S. Department of Agriculture’s Rural Utility Service may fund project work undertaken by PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 56079 electric cooperatives. This constitutes a Federal nexus triggering consultation under the Act on these projects that may affect listed species and critical habitats. For each 4-year workplan set forth by the three cooperatives serving the areas in which critical habitat is proposed, we anticipated an informal section 7 consultation will occur. For the Neches River rose-mallow, we assume that the costs of these consultations are related to the presence of the plant and the critical habitat designation will generate only limited administrative effort. For the Texas golden gladecress, we assume that the plant will not be present and therefore the incremental costs associated with critical habitat are both: (1) Administrative costs and (2) costs associated with project modifications proposed during the consultation. As described in section 4.6 of the draft economic analysis, based on our conversations with RUS, we expect the utility projects will be able to avoid impacts to critical habitat relatively easily. Project modifications include modifying clearing and maintenance techniques, and adjusting new pole placement to avoid digging into glade substrate. Because the costs associated with these project modifications are anticipated to be very minor, they were not quantified in the analysis. Overall, we calculated an undiscounted cost to the three electric cooperatives of $25,300 over the 20-year timeframe of the study, or approximately $1,265 per year. We do not expect these costs to influence the utility rates charged to customers. In conclusion, while three small electric cooperatives are anticipated to incur costs as a result of the designation of critical habitat for Texas golden gladecress and Neches River rosemallow, the costs are not expected to result in significant impacts to these entities (Industrial Economics 2013, p. A–2). See Attachment A and pages 4–11 through 4–13 of the draft economic analysis for a detailed description of our analysis. (25) Comment: Several commenters expressed the need to include impacts of critical habitat designation on natural gas exploration and development in the economic analysis, concerns about additional consultation and permitting requirements for future projects that require a Federal permit or otherwise have a federal nexus causing delays in operations. Other comments thought the Service’s draft economic analysis of the critical habitat designation failed to identify oil and gas development as an economic activity that may be affected by the designation of critical habitat for the Texas golden gladecress. E:\FR\FM\11SER3.SGM 11SER3 mstockstill on DSK4VPTVN1PROD with RULES3 56080 Federal Register / Vol. 78, No. 176 / Wednesday, September 11, 2013 / Rules and Regulations Our Response: The Service does identify natural gas exploration, production, and distribution (pipelines) as current and ongoing threats to the remaining populations of Texas golden gladecress. Texas golden gladecress sites could be directly impacted by site clearing or indirectly impacted by altering the hydrology. As stated in the proposed rule, the Simpson Farms Texas golden gladecress population, located 6 mi (9.7 km) east of the city of Nacogdoches, was eliminated by a natural gas pipeline that was installed sometime between August 2010 and October 2011. The population was estimated to be approximately 200 ft2 (18 m2) in size, and the loss of plants at this site represented a loss of approximately 65 percent of all the known plants. The entire known distribution of Texas golden gladecress is underlain by the Haynesville Shale formation (also known as the Haynesville-Bossier), recently recognized as a major natural gas source for the United States. By September 2011, as many as 1,500 wells had been drilled on the Haynesville Shale with many more anticipated, along with perhaps another 10 years of active drilling on this formation (Murphy 2011, pp. 2–3). Exploration and production of natural gas and oil is anticipated to continue in this area for at least the next decade. Section 4.7 and Exhibit 3.1 of the final economic analysis suggested that a Federal nexus arises for interstate oil pipelines because of oversight by Federal Energy Regulatory Commission. However, subsequent research determined that management of interstate oil pipelines is not within the scope of Federal Energy Regulatory Commission’s operations. Therefore, for oil exploration and development on private land in Texas, no Federal nexus necessitating consideration of critical habitat exists. For this reason, we assume that the designation of critical habitat will have negligible impact on oil exploration and development. The information regarding oil pipelines in the final economic analysis has been corrected to reflect this change. The Federal nexus for natural gas activities is through Federal Energy Regulatory Commission, the agency responsible for permitting interstate natural gas pipelines. According to Federal Energy Regulatory Commission data, as of February 2013, there were no pending major interstate pipeline projects in East Texas. Furthermore, the white bladderpod, a federally-listed species since 1987 and co-located with the Texas golden gladecress, has no consultation history for natural gas VerDate Mar<15>2010 19:16 Sep 10, 2013 Jkt 229001 pipeline activity. We have added this information to section 4.7 of the final economic analysis. The Texas Railroad Commission has detailed information on all existing pipelines, but the agency has no way to predict future routes for new pipelines or wells; they are limited to location data found within permit applications (Nunley 2011, pers. comm.). Further, the draft economic analysis identifies the baseline protection afforded through listing under the Act for the Texas golden gladecress and the Neches River rose-mallow and their habitats. This existing regulatory baseline provides the context for the evaluation of economic impacts expected to result from critical habitat designation. The draft economic analysis does not evaluate the threats to a species, it evaluates the incremental cost associated with additional conservation measures required due to the designation of critical habitat. The draft economic analysis determined that the designation of critical habitat for the Texas golden gladecress is likely to result in relatively minor administrative impacts. In addition, minimal project modifications are likely to result from the designation of critical habitat. These minor impacts are attributed primarily to very few projects with a Federal nexus being envisioned within the critical habitat designation for the plant. The primary activities expected to result in section 7 consultations and trigger project modifications are routine transportation projects and utilityrelated activities. To the extent that future economic activity is uncertain, this analysis may have failed to identify projects or land use alterations that may occur within habitat. However, given the stated conditions, project modifications due to critical habitat designation are unlikely for Neches River rose-mallow and minimal in cases where they do occur for Texas golden gladecress. No small entities are likely to be significantly affected by the designation of critical habitat. In addition, we do not anticipate measurable impacts to the supply, distribution, or use of energy (Industrial Economic 2013, p. ES–5). Pursuant to Executive Order No. 13211, ‘‘Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use,’’ issued May 18, 2001, Federal agencies must prepare and submit a ‘‘Statement of Energy Effects’’ for all ‘‘significant energy actions.’’ The purpose of this requirement is to ensure that all Federal agencies ‘‘appropriately weigh and consider the effects of the Federal Government’s regulations on the supply, PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 distribution, and use of energy.’’ (Industrial Economics 2013, p. A–3). For the Neches River rose-mallow and the Texas golden gladecress, minimal modifications to future energy-related economic activities are anticipated to result from the designation of critical habitat (Industrial Economics 2013, p. A–4). In summary, oil and gas production and distribution do pose a threat to the Texas golden gladecress as we identified in the proposed rule and this final rule. Specifically, the Chapel Hill population may still be affected by future pipeline construction. The draft economic analysis does not evaluate the threats to a species, it evaluates the incremental cost associated with additional conservation measures required due to the designation of critical habitat. (26) Comment: One commenter noted the existence of lignite mining activities in the vicinity of the critical habitat designation, particularly the proximity of critical habitat unit 2 for the Neches River rose-mallow to a sedimentation pond constructed by the Sabine Mining Company. Other commenters noted that in the economic analysis there was not any discussion of lignite coal mining in this region of Texas. The Sabine Mining Company alone produces more than four million tons of coal per year, and there are several other coal mines in east Texas, contributing a combined total state production of some 40 million tons per year. According to the Office of Management and Budget a ‘‘significant adverse effect’’ may occur if the regulatory action under consideration results in reductions of coal production of more than five million tons per year. An additional concern was expressed that mining operations, including those for glauconite and other materials that counties buy for road maintenance, will be affected and that all increased costs will get passed along to counties as the purchasers, and ultimately to the tax payers. Our response: Currently, there are no active mines in the vicinity of the critical habitat; a sediment pond in Unit 2 is associated with a mine that has been in reclamation since the 1990s. However, a lignite belt is noted to exist throughout East Texas, including in the counties in which the critical habitat is designated. Because mines on private land are managed by the Railroad Commission in Texas, for a Federal nexus to occur with lignite mining activities, the critical habitat designation would need to overlay Federal mineral rights. The Bureau of Land Management confirmed that no Federal mineral rights overlap the critical habitat area. This information E:\FR\FM\11SER3.SGM 11SER3 mstockstill on DSK4VPTVN1PROD with RULES3 Federal Register / Vol. 78, No. 176 / Wednesday, September 11, 2013 / Rules and Regulations has been included in section 4.7 of the economic analysis. Additionally, our final economic analysis on April 16, 2013 (78 FR 22506–22510) identified and analyzed the potential economic impacts of designating critical habitat for the Texas golden gladecress and the Neches River rose-mallow. The economic analysis addressed the requirements of Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use, May 18, 2001; as well as Executive Orders 12866 (as amended by 13563), 13211, and 12630, the Regulatory Flexibility Act (RFA), as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA), and the Unfunded Mandates Reform Act (UMRA). The economic analysis determined that no small entities are likely to be significantly affected by the designation of critical habitat. In addition, we do not anticipate measurable impacts to the supply, distribution, or use of energy. See Appendix A of the Final draft economic analysis for further information. (27) Comment: The listing and critical habitat will cause undue economic harm by limiting development opportunities in that region, threaten local jobs, and be too costly. Our Response: As discussed in the Executive Summary of the draft economic analysis, impacts of the critical habitat designation are expected to be relatively minor and mostly administrative in nature. The administrative costs and project modifications resulting from critical habitat designation are not expected to affect the type or intensity of economic activities occurring in the region. As such, we do not predict impacts to local jobs. See Our Response to Comments 11 and 17 in the Comments from States section, as well as Comments 21 and 23 above in Public comments. As documented in section 4.3 of the analysis, we do not forecast any restrictions on development or other major land use regulations as a result of the critical habitat designation that might influence private property values. In section 2.3.2, the report does note that public attitudes about limits or restrictions that critical habitat may impose can cause real economic effects to property owners, regardless of whether such limits are actually imposed. As the public becomes aware of the true regulatory effects imposed by critical habitat, the impact of the designation of property markets may decrease. Furthermore, the study cited in this comment did not identify statistically significant effects of the VerDate Mar<15>2010 19:16 Sep 10, 2013 Jkt 229001 designation on land values outside of urban growth areas, limiting its applicability to this particular designation. (28) Comment: Commenters expressed concerns that critical habitat designations added to the regulatory burden on businesses and private landowners in the area at issue, and such designations, if made without a proper basis, would contravene the President’s Executive Order 13563, which directs Federal agencies to identify and use the best, most innovative, and least burdensome tools for achieving regulatory ends. They indicated that it would be an inappropriate use of Service’s discretion to place regulatory burdens on development in the areas in question, when the agency has demonstrated neither that the proposed listings and designations are justified nor that such listings and designations would be the least burdensome tool for achieving the Service’s goals. Commenters believe projects with a Federal nexus could be delayed or cancelled in East Texas counties due to critical habitat designation. They indicated the belief that any benefits associated with the proposed designations were outweighed by the potential for negative economic impacts. Our response: Executive Order 13563 requires agencies to tailor regulations to impose the least burden on society, consistent with obtaining regulatory objectives. The Service may exclude any area from critical habitat if we determine that the benefits of such exclusion outweigh the benefits of specifying such areas as part of critical habitat unless we determine that the failure to designate such area as critical habitat will result in the extinction of the species concerned. 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. The Executive Order 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. For projects occurring within the critical habitat designation for the Neches River rose-mallow, it is unlikely that critical habitat designation will generate project delays or cancellations. As discussed in section 4.1 of the draft economic analysis, any consultations or recommendations for project PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 56081 modifications that may result in project delays are expected to occur due to the presence of the plant regardless of whether critical habitat is designated. Project modifications due to critical habitat for the Texas golden gladecress are generally expected to generate only minor additional costs associated with project implementation. The consultation process and implementation of associated recommendations are not expected to generate substantial project delays or result in cancellation of projects. (29) Comment: The Service incorrectly assumed the generally described site location in Harrison County where the Neches River rosemallow was collected in 1980 had not been disturbed. Significant disturbance has taken place in that area. The Sabine Mining Company began development of the South Hallsville No. 1 Mine, a large lignite coal mine, in 1984, and has been operating continuously since then. The second largest proposed critical habitat site matches the footprint of a sedimentation pond on one of the state’s major coal mines. The shoreline of a large sedimentation pond constructed by the mining company in the early 1990’s is the exact boundary of the proposed critical habitat unit 2 for the Neches River rose-mallow. Our response: In regard to the location of the Harrison County site see Our Response to Comment 9. New information provided by the commenter confirms that the Harrison County critical habitat unit overlays a sedimentation pond of an old lignite (type of coal) mine that is no longer active (Lang 2013, pers. comm.). The pond’s edge still provides at least one of the primary constituent elements needed by the Neches River rosemallow. Consequently, we consider this site to meet the definition of critical habitat for the Neches River rosemallow. (30) Comment: The draft economic analysis did not monetize the costs of all the project modifications that were recognized to be necessary. Our response: Executive Order 12866 specifies that quantification of costs should be performed to the extent feasible. As discussed in sections 4.2 and 4.6 of the draft economic analysis, we do not quantify the potential impacts of the designation in two instances. The cost of altering vegetation clearing techniques at the base of utility poles was expected to be minor and is therefore described qualitatively. In addition, the draft economic analysis describes the potential costs to driver safety associated with a narrower roadway shoulder. These costs would be E:\FR\FM\11SER3.SGM 11SER3 mstockstill on DSK4VPTVN1PROD with RULES3 56082 Federal Register / Vol. 78, No. 176 / Wednesday, September 11, 2013 / Rules and Regulations net of the savings associated with constructing a narrower shoulder. Absent information on the extent to which the reduced roadway shoulder size may increase accident or injury, we describe this cost qualitatively. (31) Comment: The draft economic analysis did not provide a complete or accurate picture of the economic impact that would be caused by the proposed listing. Our response: As described in section 2.1 of the draft economic analysis, the analysis is focused on the incremental economics impacts of the designation of critical habitat for the Texas golden gladecress and the Neches River rosemallow. This report does not attempt to capture the economic impacts of the listings of the two species. The Service is required to use the best scientific and commercial data available in determining the threatened or endangered status of a species. For critical habitat designation, the Service is required to use the best scientific and commercial data available, after taking into consideration the probable economic impacts and other impacts of the designation on proposed or ongoing activities. The Service evaluated the probable incremental economic impact of the designation of critical habitat through its economic analysis. The cost of listing the species are in the baseline and therefore not presented. (32) Comment: One comment suggested that potential incremental effects identified in ‘‘Appendix B: The Incremental Effect Memorandum for the draft economic analysis for the proposed rule to Designate Critical Habitat for Texas golden gladecress and Neches River rose-mallow’’ of the draft economic analysis associated with activities that may affect the primary constituent elements (PCEs) for the Neches River rose-mallow without affecting the plant were not quantified in the analysis. Our response: As described in Appendix B, the purpose of the incremental effects memorandum is to provide information to serve as a basis for conducting an economic analysis of the proposed critical habitat. While it serves as the basis, subsequent discussions with the Service and other Federal agencies directly informs the analysis. Through such discussions, we did not identify an instance of the situation outlined in this comment for the Neches River rose-mallow. For this reason, these example incremental effects were not quantified in the analysis. (33) Comment: One comment stated that the estimated costs of consultation likely underestimate administrative VerDate Mar<15>2010 19:16 Sep 10, 2013 Jkt 229001 costs and fail to reflect the true realworld costs associated with project delays caused by section 7 consultation. Another comment notes that the administrative consultation costs presented in Exhibit 2–3 represent old data. Our response: The administrative costs assigned in the study were developed from data from the Federal Government Schedule Rates, Office of Personnel Management, and a review of consultation records from several Service field offices across the country. While the estimates of time spent in section 7 consultations were derived from interviews with agencies and review of consultation records in 2002, the cost of time spent is based on current data describing the Federal government’s 2012 hourly pay rates, adjusting for overhead and benefits. As such, we consider these administrative costs a reasonable approximation of the administrative costs of consultation. As stated in the response to the comment on time delays, we do not anticipate this rule will generate measurable time delays. (34) Comment: One commenter stated that the draft economic analysis’ reliance solely on administrative costs to quantify impact does not present a comprehensive appraisal of the economic impact of the proposed designation. Our response: The draft economic analysis presents the probable incremental economic impact of the designation of critical habitat for each species. Use of an incremental analysis is the only logical way to implement the Act. To understand the difference that designation of an area as critical habitat makes, one must compare the hypothetical world with the designation to the hypothetical world without the designation. For this reason, the Service compares the protections provided by the designation to the protections without the designation. This methodology is consistent with the general guidance given by the Office of Management and Budget to executive branch agencies as to how to conduct cost-benefit analyses. Section 2.3.2 of the final economic analysis describes that the economic analysis considers multiple categories of potential impacts, including administrative costs and costs of project modifications, which may be implemented to avoid adverse modification of critical habitat. For projects for which critical habitat designation is not expected to result in project modifications, or otherwise affect economic activities, we anticipate PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 that the costs of the rule are limited to administrative costs. (35) Comment: The draft economic analysis should include the impacts the critical habitat designation would have on private landowners. Our Response: When prudent and determinable, the Act requires the Service to designate any habitat, which is considered to be critical habitat concurrently with making a determination that a species is an endangered or threatened species. Critical habitat is defined in section 3 of the Act: the specific areas within the geographic 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 for the conservation of the species and (b) which may require special management considerations or protection. The 11 occupied sites contain either one or more physical or biological feature essential to the Neches River rose-mallow which may require special management considerations or protection, as do the four occupied Texas golden gladecress sites. A final designation of critical habitat is based on the best scientific and commercial data available, after taking into consideration the probable economic impacts and other impacts of the designation on proposed or ongoing activities. As discussed in section 2.3.2 of the draft economic analysis, private landowners may be affected by critical habitat if they are party to a consultation and experience administrative impacts or bear costs of project modifications. Activities taking place on private land that do not involve a Federal nexus are unlikely to be directly affected by critical habitat; however, section 2.3.2 of the draft economic analysis additionally recognizes the potential for private landowners to be indirectly affected by critical habitat designation, for example in the case that the designation generates uncertainty about restrictions on future land use or triggers changes in state or local management of activities. As presented in section 4.3 of the draft economic analysis, however, we expect costs to private landowners in this case will be limited to the administrative costs associated with technical assistance for land management by Partners for Fish and Wildlife. It is important to note that this technical assistance is offered to willing landowners but is not required. (36) Comment: One commenter noted that if the private landowner does not have restrictions on the plants on their property, then there are no measures that would prevent the landowner from E:\FR\FM\11SER3.SGM 11SER3 mstockstill on DSK4VPTVN1PROD with RULES3 Federal Register / Vol. 78, No. 176 / Wednesday, September 11, 2013 / Rules and Regulations destroying or further endangering a species. Our response: The commenter is correct. The Act does not prohibit destroying or adversely modifying critical habitat unless such activities involve an endangered species on Federal land, there is a Federal nexus, or if the action occurs in violation of State laws. If a person wishes to develop private land, with no Federal jurisdiction involved, in accordance with State law, then the potential destruction or adverse modification of critical habitat does not violate the Act. Critical habitat receives protection under section 7 of the Act through requiring Federal agencies to consult with the Service to ensure that action they carry out, fund, or authorize does not result in the destruction or adverse modification of critical habitat. If there is no Federal nexus, the critical habitat designation of private lands itself does not restrict any actions that destroy or adversely modify critical habitat. (37) Comment: Several comments were made addressing potential adverse impacts on property values due to the critical habitat designation. Our response: As documented in section 4.3 of the draft economic analysis, we do not forecast any restrictions on development or other major land use regulations as a result of the critical habitat designation that might influence private property values. In section 2.3.2 of the draft economic analysis, the report does note that public attitudes about limits or restrictions that critical habitat may impose can cause real economic effects to property owners, regardless of whether such limits are actually imposed. As the public becomes aware of the true regulatory effects imposed by critical habitat, the impact of the designation of property markets may decrease. Furthermore, the study cited in this comment did not identify statistically significant effects of the designation on land values outside of urban growth areas, limiting its applicability to this particular designation. (38) Comment: One commenter questioned the benchmarks for designating species with critical habitat and how these areas are determined. Our response: Under the Act, any species that is determined to be an endangered or threatened species requires critical habitat to be designated, to the maximum extent prudent and determinable, using the best scientific and commercial data available and primary and original sources of information. Critical habitat is defined in section 3 of the Act as: (1) The VerDate Mar<15>2010 19:16 Sep 10, 2013 Jkt 229001 specific areas within the geographical area occupied by the species, at the time it is listed, on which are found the physical or biological features that are essential to the conservation of the species and 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. See the ‘‘Areas Occupied at the Time of Listing’’ and ‘‘Areas Unoccupied at the Time of Listing’’ sections for both species in this final rule for further information. (39) Comment: One comment expressed concern that the economic analysis was incomplete because citations for discussions did not list the names of all the Service staff and only one state agency. This comment also noted that the document did not provide a list of those individuals consulted for information. Our response: As described in section 4.1, we contacted multiple Federal agencies and applicable state agencies that may permit, fund, or carry out activities within the proposed critical habitat designation. In response to public comments, we contacted additional agencies in order to confirm the status of a potential activity over the timeframe of the study. The final economic analysis will include these additional individuals. All individuals contacted are referenced by footnote in the economic analysis. (40) Comment: In response to the September publication of the proposed rule, multiple commenters requested an extended comment period. Our Response: We consider the comment periods described in the ‘‘Summary of Comments and Recommendations’’ of this final rule to have provided the public a sufficient opportunity for submitting both written and oral public comments. In addition, the Act requires the Service to publish a final rule within 1 year from the date we propose to list a species. This 1-year timeframe can only be extended if there is substantial disagreement regarding the sufficiency or accuracy of the available data relevant to the determination or revision concerned, but only for 6 months and only for purposes of soliciting additional data. Based on the comments received and data evaluated there is not substantial disagreement regarding the sufficiency or accuracy of the data. We also reopened the comment period for the draft economic analysis and for the proposed rule. PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 56083 (41) Comment: One commenter indicated concern that designation of critical habitat will impose restrictions upon people’s freedom of access to Federal lands (the Davy Crockett NF specifically). Our response: Neither listing nor designation of critical habitat for the Neches River rose-mallow of any area on the Davy Crockett NF will restrict public access of this land. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation does not allow the government or public to access private lands. Summary of Changes From Proposed Rule Our analysis or conclusions did not result in any substantial changes to the final rule from what was proposed. Critical Habitat Background Critical habitat is defined in section 3 of the Act as: (1) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features (a) Essential to the conservation of the species, and (b) Which may require special management considerations or protection; and (2) Specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. Conservation, as defined under section 3 of the Act, means to use and the use of all methods and procedures that are necessary to bring an endangered or threatened species to the point at which the measures provided 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 E:\FR\FM\11SER3.SGM 11SER3 mstockstill on DSK4VPTVN1PROD with RULES3 56084 Federal Register / Vol. 78, No. 176 / Wednesday, September 11, 2013 / Rules and Regulations ensure, in consultation with the Service, that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation does not allow the government or public to access private lands. Such designation does not require implementation of restoration, recovery, or enhancement measures by nonFederal landowners. Where a landowner requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat, the consultation requirements of section 7(a)(2) of the Act would apply, but even in the event of a destruction or adverse modification finding, the obligation of the Federal action agency and the landowner is not to restore or recover the species, but to implement reasonable and prudent alternatives to avoid destruction or adverse modification of critical habitat. Under the first prong of the Act’s definition of critical habitat, areas within the geographical area occupied by the species at the time it was listed are included in a critical habitat designation if they contain physical or biological features (1) which are essential to the conservation of the species and (2) which may require special management considerations or protection. For these areas, critical habitat designations identify, to the extent known using the best scientific and commercial data available, those physical or biological features that are essential to the conservation of the species (such as space, food, cover, and protected habitat). In identifying those physical or biological features within an area, we focus on the principal biological or physical constituent elements (primary constituent elements such as roost sites, nesting grounds, seasonal wetlands, water quality, tide, soil type) that are essential to the conservation of the species. Primary constituent elements are those specific elements of the physical or biological features that provide for a species’ lifehistory processes and are essential to the conservation of the species. 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. For example, an area currently occupied by the species but that was not occupied at the time of listing may be VerDate Mar<15>2010 19:16 Sep 10, 2013 Jkt 229001 essential to the conservation of the species and may be included in the critical habitat designation. We designate critical habitat in areas outside the geographical area occupied by a species only when a designation limited to its range would be inadequate to ensure the conservation of the species. Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific and commercial data available. Further, our Policy on Information Standards Under the Endangered Species Act (published in the Federal Register on July 1, 1994 (59 FR 34271)), the Information Quality Act (section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106–554; H.R. 5658)), and our associated Information Quality Guidelines provide criteria, establish procedures, and provide guidance to ensure that our decisions are based on the best scientific data available. They require our biologists, to the extent consistent with the Act and with the use of the best scientific data available, to use primary and original sources of information as the basis for recommendations to designate critical habitat. When we are determining which areas should be designated as critical habitat, our primary source of information is generally the information developed during the listing process for the species. Additional information sources may include the recovery plan for the species, articles in peer-reviewed journals, conservation plans developed by States and counties, scientific status surveys and studies, biological assessments, other unpublished materials, or experts’ opinions or personal knowledge. Habitat is dynamic, and species may move from one area to another over time. We recognize that critical habitat designated at a particular point in time may not include all of the habitat areas that we may later determine are necessary for the recovery of the species. For these reasons, a critical habitat designation does not signal that habitat outside the designated area is unimportant or may not be needed for recovery of the species. Areas that are important to the conservation of the species, both inside and outside the critical habitat designation, will continue to be subject to: (1) Conservation actions implemented under section 7(a)(1) of the Act, (2) regulatory protections afforded by the requirement in section 7(a)(2) of the Act for Federal agencies to insure their actions are not likely to jeopardize the continued existence of any endangered PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 or threatened species, and (3) section 9 of the Act’s prohibitions on taking any individual of the species, including taking caused by actions that affect habitat. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. These protections and conservation tools will continue to contribute to recovery of this species. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans (HCPs), or other species conservation planning efforts if new information available at the time of these planning efforts calls for a different outcome. Physical or Biological Features for the Texas Golden Gladecress In accordance with section 3(5)(A)(i) and 4(b)(1)(A) of the Act and regulations at 50 CFR 424.12, in determining which areas within the geographical area occupied by the species at the time of listing to designate as critical habitat, we consider the physical or biological features essential to the conservation of the species and which may require special management considerations or protection. These include, but are not limited to: (1) Space for individual and population growth and for normal behavior; (2) Food, water, air, light, minerals, or other nutritional or physiological requirements; (3) Cover or shelter; (4) Sites for breeding, reproduction, or rearing (or development) of offspring; and (5) Habitats that are protected from disturbance or are representative of the historical, geographical, and ecological distributions of a species. We derive the specific physical or biological features essential for Texas golden gladecress from studies of this species’ habitat, ecology, and life history as described in the Critical Habitat section of the proposed rule to designate critical habitat published in the Federal Register on September 11, 2012 (77 FR 55968), and in the information presented below. Additional information can be found in the final listing rule published today elsewhere in the Federal Register. We have determined that Texas golden gladecress requires the following physical or biological features: E:\FR\FM\11SER3.SGM 11SER3 mstockstill on DSK4VPTVN1PROD with RULES3 Federal Register / Vol. 78, No. 176 / Wednesday, September 11, 2013 / Rules and Regulations Space for Individual and Population Growth and for Normal Behavior Based on all documented occurrence records, the Texas golden gladecress is endemic to glade habitats in northern San Augustine and northwest Sabine Counties, Texas, where it is a habitat specialist, occurring only on outcrops of the Weches Geologic Formation (Mahler 1987, p. 240; George and Nixon 1990, p. 120; Poole et al. 2007, pp. 286–287). The gladecress grows only in glades on shallow, calcium-rich soils that are wet in winter and spring. These occur on ironstone (glauconite or green-stone) outcrops (Poole et al. 2007, p. 286). The Texas golden gladecress occurs in open, sunny, herbaceous-dominated plant communities in Weches glades; in some cases in areas that also support another federally listed plant, the white bladderpod (Lesquerella pallida) (Bridges 1988, pp. II–7, II–35, and II–35 supplement). Unlike the white bladderpod, which can grow throughout the glade, the gladecress is restricted to the outcrop rock faces within the glades where it occurs (Nemec 1996, p. 8). The Texas golden gladecress shows a tight association with the Weches Formation and associated soils (Singhurst, 2011a, pers. comm., p. 3). The known Texas golden gladecress occurrences are all found on shallow, gravelly soils or almost bare bedrock overlying Trawick, Bub, or Nacogdoches soils. The Weches Glades form a small patch system of habitats, endemic to the outcrops of marine sediment and glauconitic clays that occur primarily in Nacogdoches, San Augustine, and Sabine Counties (Nature Serve 2009, p. 6). Surface exposures of the Weches Formation are usually on slopes (due to erosion) and typically are small; 16.4– 65.6 ft (5–20 m) in width, and generally not exceeding 328 ft (100 m) in length (George and Nixon 1990, p. 118). The average width of the Weches outcrop region varies from 2–5 mi (3.2–8 km) (Sellards et al. 1932 in Diggs et al. 2006, p. 56) and encompasses the route of SH 21. All known Texas golden gladecress populations occur, or formerly occurred, within 1 mi (1.6 km) of SH 21. Of these populations, three sites where plants have been confirmed as recently as 2012 remain: Caney Creek Glades Site 1 in San Augustine County, just east of the town of San Augustine; the Chapel Hill Site in San Augustine County, adjacent to County Road 151; and adjacent to SH 21 south of the town of Geneva, Sabine County. A fourth site, Caney Creek Glades Site 7, is also considered extant because there is no evidence that the habitat has been destroyed, however, the existence and size of the Texas VerDate Mar<15>2010 19:16 Sep 10, 2013 Jkt 229001 golden gladecress at this site has not been verified since 1988 because the site is on private property to which access has been denied. Historically, populations in the closest proximity to each other were part of the Caney Creek Glade Complex that contained five of the eight known sites. This entire complex was located within an area that did not exceed 1 mi (1.6 km) from the most northern to most southern plant occurrences, and extended less than 0.32 miles (0.53 km) from east to west. The Chapel Hill and Geneva sites were outliers to the Caney Creek Complex, located 4.5 mi (7.24 km) and 11.4 mi (18.3 km), respectively, to the southeast. Multiple glades in close proximity to one another, as exemplified by the Caney Creek Glade Complex, may have facilitated cross fertilization between populations, enhancing genetic diversity, and perhaps providing space for population expansion. Potential exists for other areas within the range of the Texas golden gladecress to support glade complexes. Singhurst (2012b, pers. comm.), using aerial photography and maps of geology and soils, has identified clusters of potential glade sites in additional areas within the Weches Formation within 1 mi (1.6 km) to the north and south of SH 21 as it traverses San Augustine County, as well as into Sabine County. We are also aware that areas adjacent to the Chapel Hill and Geneva sites have a high likelihood of suitable habitat. Due to loss, degradation, and fragmentation of habitat, optimal glade size or density of glade complexes needed to support long-term survival of Texas golden gladecress is not well understood, but monitoring of the extant sites between 1999–2009 showed that the Texas golden gladecress could persist on small, disjunct sites where it is able to grow and reproduce, at least in the short term. Based on the best available scientific and commercial information, a better model of a healthy population and habitat site may be found by looking at the historic Caney Creek Glade Site 6, which supported the largest population ever documented. This former site was contained within an area of approximately 10 ac (4 ha) and supported thousands of plants until the mid–1990’s, when it was destroyed by mining excavation. This glade complex consisted of long, sheeted openings that presented a patchwork appearance of soil, rock, and glades (Singhurst 2012d, pers. comm.). This site likely represented ideal special conditions for this species because it supported a healthy and robust population. PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 56085 The best available scientific and commercial information regarding gene flow between Texas golden gladecress populations is that seed dispersal may be limited. Seeds appear to fall to the ground near the parent plant (Singhurst 2011c, pers. comm., p. 4) and probably stay in place unless water movement, such as flooding, carries them to other suitable habitats. The Weches outcrops occur in a scattered fashion across the landscape with habitat that is unsuitable for Texas golden gladecress lying between outcrops. Pollinators specific to Texas golden gladecress have not been identified. Native bees in the Families Andrenidae and Halictidae (sweat bees), including the species Halictus ligatus (sweat bee), were observed carrying pollen from Leavenworthia crassa (fleshyfruit gladecress) and L. stylosa (cedar gladecress) in northern Alabama (Lloyd 1965, pp. 106–115). Although representatives of these bee families are found across eastern Texas (Warriner 2012b, pers. comm.), there is no documentation of them visiting Texas golden gladecress. Busch and Urban (2011, p. 18) indicated the efficacy of these pollinators has not been studied in Leavenworthia. Texas golden gladecress is believed to be self-compatible and may not rely solely on pollinators for fertilization (see Biology section). Based on this information, close proximity of glade outcrops to one another may help to facilitate cross pollination and seed dispersal. Therefore, based on the information above, we identify glauconite exposures (outcrops) of the Weches Geologic Formation, found within Weches glades, as an essential physical feature for the species’ continued existence. Although these individual exposures can be small in size and scattered throughout a glade or glades, ideally the glades will occur in multiples (a complex). Food, Water, Air, Light, Minerals, or Other Nutritional or Physiological Requirements The geology and soils of Texas golden gladecress sites are unique in East Texas, and the species shows a tight association with the Weches Formation and associated soils (Singhurst, 2011a, pers. comm.). The Weches Formation is characterized by the mineral glauconite and contains glauconitic clays, calcareous marls, rich marine fossil deposits, and mudstone (George and Nixon 1990, pp. 117–118). In some areas, leaching of the soluble ingredients in the glauconite has concentrated iron in ironstone (ironbearing limonite). The Weches Formation affects the local topography E:\FR\FM\11SER3.SGM 11SER3 mstockstill on DSK4VPTVN1PROD with RULES3 56086 Federal Register / Vol. 78, No. 176 / Wednesday, September 11, 2013 / Rules and Regulations and vegetation, with cap hills and escarpments where the erosion-resistant ironstone layers occur, and more rolling topography where ironstone is not present (Diggs et al. 2006, p. 56). The Weches outcrops create limited areas of relatively thin alkaline soils in a region of mostly sandy soils (USFWS 1992, pp. 3–4) resulting in natural glade communities on the shallow, seasonally saturated, but frequently dry soils (Bezanson 2000 in Diggs et al. 2006, p. 56). Soils associated with Weches glades are shallow, rocky, and basic in pH (alkaline), inhibiting the presence of woody species (Nature Serve 2009, p. 6). Soils underlying known Texas golden gladecress sites appear to be inclusions in the Nacogdoches, Trawick, or Bub soils series (U.S. Department of Agriculture 2009, entire). George (1987, p. 18) found that the soil profile of three Weches outcrops had a surface layer of sandy loam or sandy clay loam with impermeable glauconite clay at a depth of about 19.7 inches (50 cm). Measurements of soil pH ranged from 7.6 to 8.1 (George 1987, p. 18). Weches soils contain exceptionally high levels of calcium (2,500–6,000 parts per million (ppm)) from fossilized shells, as well as high levels of potassium (170– 250 ppm) and magnesium (250–400 ppm). The basic pH at these sites results from dissolution of the calcareous component of the rich marine fossil fauna of the Weches Formation (George 1987, p. 47). These conditions produce a harsh, variable environment that becomes saturated and seepy in cool moist months and during rainy seasons, but that dries out, becoming parched and hard, during hot summer months (USFWS 1992, pp. 3–4). Leavenworthia species are dormant by early summer, helping them to survive the dry period as seed; this dormancy is likely one of the major evolutionary adaptations in this genus enabling its species to endure the extreme droughty conditions of late summer (Quarterman 1950, p. 5). Texas golden gladecress is dependent on late fall-winter precipitation levels that keep the glade sediments saturated and leave pooled water on the small outcrop ledges. Based on observations of Texas golden gladecress population sites over a 10-year period within the Weches outcrops and glade complexes, Texas golden gladecress appeared to be highly restricted to wet microhabitats and ‘‘even within suitable sites, the species seems limited to only seasonal seep runs and vernal pools within the site’’ (Singhurst 2011a, pers. comm., p. 3). The species’ apparent requirement for direct contact with seeps and shallow puddles on exposed ledges of outcrop implies reliance on VerDate Mar<15>2010 19:16 Sep 10, 2013 Jkt 229001 precipitation that falls directly onto the ledges and possibly on down-slope movement of water percolating through the sediment atop the clay layer. George (1987, pp. 2–4) observed that the Weches outcrops were waterlogged in the spring due to the clay stratum, with water percolating until it hit the clay, then moving laterally and exiting on the hillsides where the outcrops are. At the Chapel Hill site, Texas golden gladecress was found on and around a few spots where the glauconite was exposed rather than in the dense cover of the herbaceous matrix (Carr 2005, p. 2). The glauconite exposures at this site were wet from seeps or due to percolating water moving laterally on top of the bedrock. All known Texas golden gladecress populations have been found on open, sunny exposures on Weches outcrops. Baskin and Baskin (1988, p. 837) indicated that a high light requirement was common among the endemic plants of rock outcrop plant communities in the unglaciated eastern United States. This obligate need for high light is supported by field observations showing that these eastern outcrop endemics, similar to Texas golden gladecress: Grow on well-lighted portion of the outcrops but not in adjacent shaded forests; photosynthesize best in full sun, with a reduction in the presence of heavy shading; and compete poorly with plants that shade them (Baskin and Baskin 1988, p. 837). Texas golden gladecress apparently persists on its specialized habitat, at least in part, due to a lack of competition from taller or more vigorous plants. Rollins (1963, p. 17) found that, while Leavenworthia alabamica and L. crassa grew normally and produced seed in a portion of an experimental plot where weeds were removed, plants from both species died in the portion of the plot where Poa annua (annual bluegrass) was allowed unrestricted growth. Lloyd (1965, pp. 86–87) observed that plants of these two species competed poorly with the invading weed flora in abandoned agricultural fields. The Weches outcrops and surrounding glade sites show large seasonal variation in species dominance as a result of the shift from saturated soils in winter-spring to hard, dry soil in summer (George and Nixon 1990, pp. 120–124). Singhurst (2012d, pers. comm.) described the Chapel Hill site as having bare spots on the tops of the glade with seasonal pools of water (similar to vernal pools). At this site the Texas golden gladecress would bloom, seed, dry out, and die back to be replaced in summer by drier, more PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 succulent plants. Quarterman (1986 in George and Nixon 1990, p. 124) found that the thinner soils in Tennessee glades were dominated in spring by Leavenworthia spp., Minuartia patula (Pitcher’s sandwort), and Sedum pulchellum (stonecrop), and that Sporobolus vaginiflorus (poverty dropseed) would be the dominant grass on these soils in summer. Singhurst observed similar species composition shifts at Texas golden gladecress sites (Singhurst 2012e, pers. comm.; Singhurst 2012h, pers. comm.). Even with this seasonal shift, there are a number of characteristic herbaceous species that occur in association with Texas golden gladecress (Table 1) (Bridges 1988, p. II–35; TNC 2003, p. 4; Carr 2006, p. 4). Carr (2006, p. 2) found that Texas golden gladecress at the Chapel Hill site shared the rocky outcrop ledges with a sparse covering of Eleocharis sp. (spike sedge), Clinopodium arkansanum (Ozark savory), and an unidentified moss. He described the 40–50 Texas golden gladecress plants as ‘‘growing on or among clumps of moss on these soggy, unshaded glauconite exposures.’’ TABLE 1—CHARACTERISTIC FLORA OF WECHES OUTCROPS IN TEXAS Scientific name Common name Primary Characteristic Herbs Sedum pulchellum * .. Clinopodium arkansanum *. Minuartia patula * ...... Minuartia drummondii *. Valerianella radiata * Isoetes butleri ............ Allium drummondii * .. Portulaca oleracea * .. Phemeranthus parviflorus *. Eleocharis occulata * stonecrop. Ozark savory. Pitcher’s sandwort. Drummond sandwort. beaked cornsalad. Butler’s quillwort. Drummond wild-garlic. common purslane. sunbright. limestone spikerush. Some Other Potential Species Erigeron sp. ............... Lesquerella pallida .... Desmanthus illinoensis. Euphorbia dentate ..... Croton monanthogynus. Dalea purpurea ......... Houstonia spp. .......... Nassella leucotricha .. Boutelous curtipendula. Eleocharis compressa Sporobolus vaginiflorus*. Thelesperma filifolium E:\FR\FM\11SER3.SGM 11SER3 fleabane. white bladderpod. Illinois bundleflower. toothed spurge. doveweed. prairie clover. Bluetts. Texas wintergrass. sideoats grama. flat-stemmed spikerush. poverty dropseed. slender greenthread. Federal Register / Vol. 78, No. 176 / Wednesday, September 11, 2013 / Rules and Regulations 56087 TABLE 1—CHARACTERISTIC FLORA OF elevations above its habitat site in order Creek Glade Site 7 is located approximately 0.75 mi (1.2 km) WECHES OUTCROPS IN TEXAS— to catch rainfall and allow its slow percolation down to the plant’s location. southeast of Caney Creek Glade Site 1. Continued Scientific name Common name Arnoglossum plantagineum. Plantago virginica ...... Schizachyrium scoparium. Polytaenia nuttallii ..... Onosmodium bejariense. Liatris mucronata ...... Draba cuneifolia ........ Paronychia virginica .. Camassia scilloides .. Zigadenus nuttallii ..... groovestem Indian plantain. Virginia plantain. little bluestem. Nuttall’s prairie parsley. softhair marbleseed. narrowleaf gayfeather. wedgeleaf draba. Whitlow wort. wild hyacinth. Nuttall’s death cama. Algae Nostoc spp. Cyanobacteria. Frequent Woody Species Juniperus virginiana .. Pinus taeda ............... Liquidambar styraciflua. Cornus drummondii ... Sideroxylon lanuginosum. Sophora affinis .......... Quercus muhlengergii Opuntia sp ................. Rhus glabra ............... Rhamnus lanceolata eastern redcedar. loblolly pine. sweetgum. roughleaf dogwood. gum bumelia. Texas sophora. Chinquapin oak. prickly pear cactus. smooth sumac. sanceleaf buckthorn. * Strong association with Texas golden gladecress sites. mstockstill on DSK4VPTVN1PROD with RULES3 Therefore, based on the information above, we identify as essential physical features for Texas golden gladecress the following: Open, sunny exposures of Weches outcrops within Weches glade plant communities that are characterized by the species listed in Table 6, with relatively thin, rocky soils that are classified within Nacogdoches, Trawick, or Bub soils mapping units as identified by the Natural Resources Conservation Service soil survey maps. There must be bare, exposed bedrock on top-level surfaces or rocky ledges with very shallow depressions where rainwater can pool or seepage can collect. Sites for Breeding, Reproduction, or Rearing (or Development) of Offspring In order to undergo successful reproduction, Texas golden gladecress requires sufficient moisture in late fall to germinate, and in winter-spring to support growth, flowering, and fruit production. At sites where the Texas golden gladecress depends on seeps to provide its water, there must be sufficient sediment or slope at VerDate Mar<15>2010 19:16 Sep 10, 2013 Jkt 229001 For those Texas golden gladecress plants growing in what appear to be micro-depressions that occur on fairly level spots in more gently sloping ground, the water supply may be more due to direct rainfall and dew collection. The species appears to be dependent on its seedbank for its continued existence, so habitat should not be subjected to activities that would remove the seedbank. Therefore, based on the information above, we identify as essential physical features needed for Texas golden gladecress’ successful reproduction outcrops with intact hydrology and for which the surface features (sufficient sediment or slope at elevations above its habitat site) and gladecress seedbed are undisturbed. Habitats Protected From Disturbance or Representative of the Historical, Geographic, and Ecological Distributions of the Species Texas golden gladecress has a restricted geographic distribution. Its historic range did not extend further than approximately 12 miles (19 km) from the most southeastern to the most northwestern documented locations and all documented occurrences were located within a 3.1 mile-wide band (5 km-wide) around SH 21. The gladecress is also an endemic species, highly restricted to a specific habitat type that occurs in a scattered or patchy fashion across the landscape, with large areas of unsuitable habitat interspersed. The extant populations exhibit a high degree of isolation, being separated from each other by distances of 4.5 mi (7.2 km) and 7 mi (11.3 km), respectively, between the northern (Caney Creek Glade Site 1), central (Chapel Hill), and southern (Geneva) populations. All three populations are small in terms of areal extent and number of individual plants. Given their geographic isolation and small size, all of the sites are important for the conservation of the species. In addition, we have determined that Texas golden gladecress likely persists at the Caney Creek Glade Site 7, even though the species’ presence has not been reconfirmed since 1988 due to lack of access onto this private property. Although the species’ presence has not been verified since 1988, the glade at this population site was described as being intact in 1996 by a forestry consultant. This individual subsequently revisited the site in 2000 and noted that invasive plants were encroaching into the glade (Walker 2012, pers comm., p. 4). The Caney PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 Combined, these sites represent the best habitat for the species throughout the geographic range. The loss of any of the known populations would reduce the potential to recover or conserve the species, thereby increasing the likelihood of extinction for the species across its range. Mapping of potential glade sites by TPWD (Singhurst 2012b, pers. comm.) shows that there is suitable habitat near the four extant populations that could provide sites for population expansion, thereby increasing the species’ resiliency. These areas are representative of habitat across the species range and provide the potential for populations to spread, thereby enhancing recovery opportunities. Therefore, we do not believe that unoccupied areas outside of the geographic range are needed. The long-term effects of climate change on the species are less clear with regard to whether any additional areas outside of those discussed above are needed for the species’ future. See the Factor A discussion of ‘‘Climate Change’’ in the listing determination for the Texas golden gladecress for a summary of projected climate changes in Texas and how these changes may affect the species. The information currently available on the effects of global climate change and increasing temperatures does not make sufficiently precise estimates of the location and severity of the effects. Nor are we currently aware of any climate change information specific to the habitat of Texas golden gladecress that would indicate what areas may become important to the species in the future. We do not believe the species can easily adapt and colonize new habitats due to its habitat specificity. Therefore, based on the best available scientific and commercial information, we are not identifying areas outside of those currently occupied as areas that may be suitable due to the effects of climate change. Primary Constituent Elements for Texas Golden Gladecress Under the Act and its implementing regulations, we are required to identify the physical or biological features essential to the conservation of Texas golden gladecress in areas occupied at the time of listing, focusing on the features’ primary constituent elements. Primary constituent elements are those specific elements of the physical or biological features that provide for a species’ life-history processes and are E:\FR\FM\11SER3.SGM 11SER3 56088 Federal Register / Vol. 78, No. 176 / Wednesday, September 11, 2013 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES3 essential to the conservation of the species. Based on our current knowledge of the physical or biological features and habitat characteristics required to sustain the species’ life-history processes, we determine that the primary constituent elements specific to Texas golden gladecress are: (1) Exposed outcrops of the Weches Formation. Within the outcrop sites, there must be bare, exposed bedrock on top-level surfaces or rocky ledges with small depressions where rainwater or seepage can collect. The openings should support Weches Glade native herbaceous plant communities. (2) Thin layers of rocky, alkaline soils, underlain by glauconite clay (greenstone, ironstone, bluestone), that are found only on the Weches Formation. Appropriate soils are in the series classifications Nacogdoches clay loam, Trawick gravelly clay loam, or Bub clay loam, ranging in slope 1–15 percent. (3) The outcrop ledges should occur within the glade such that Texas golden gladecress plants remain unshaded for a significant portion of the day and trees should be far enough away from the outcrop(s) that leaves do not accumulate within the Texas golden gladecress habitat. The habitat should be relatively clear of nonnative and native invasive plants, especially woody species, or with only a minimal level of invasion. With this designation of critical habitat, we intend to identify the physical or biological features essential to the conservation of the species, through the identification of the features’ primary constituent elements sufficient to support the life-history processes of the species. Special Management Considerations or Protections for Texas Golden Gladecress When designating critical habitat, we assess whether the specific areas within the geographical area occupied by the species at the time of listing contain features that are essential to the conservation of the species and which may require special management considerations or protection. Texas golden gladecress may require special management considerations or protection to reduce the following threats: quarrying or other excavations, including pipeline installations; building over the top of occupied glades; construction or excavation upslope that alters water movement (sheet flow or seepage) downslope to Texas golden gladecress sites; pine tree plantings near glades; and invasive (native and nonnative) plants. Refer to the five-factor analysis in the listing VerDate Mar<15>2010 19:16 Sep 10, 2013 Jkt 229001 determination for the Texas golden gladecress for more information on these threats. The features essential to the conservation of Texas golden gladecress may require special management considerations or protection to reduce the following threats: • Actions that remove the soils and alter the surface geology of the glades; • Building or paving over the glades; • Construction or excavation upslope that alters water movement (sheet flow or seepage) downslope to Texas golden gladecress sites; • Planting trees adjacent to the edges of an outcrop resulting in shading of the glade and accumulations of leaf litter and tree debris; • Encroachment by nonnative and native invading trees, shrubs, and vines that shade the glade; • The use and timing of application of certain herbicides that can harm Texas golden gladecress mature plants and seedlings; and • Fence placement such that livestock are likely to be directed through gladecress sites where habitat and plants may be trampled. Management activities that could ameliorate these threats include (but are not limited to): • Avoiding Weches glades when planning the location of quarries, well pads, roads, other facilities or structures, or pipeline routes, through glade complexes; • Avoiding above-ground construction or excavations in locations that would interfere with natural water movement to Texas golden gladecress habitat sites; • Locating suitable habitat and determining the presence or absence of the species and identifying areas with glade complexes and protecting or restoring as many complexes as possible; • Extending outreach to all landowners, including private and State, to raise awareness of the plant and its specialized habitat; • Providing technical or financial assistance to landowners to help in the design and implementation of management actions that protect the plant and its habitat; • Avoiding pine tree plantings near glades; and • Brush removal, to maintain an intact native glade vegetation community. Criteria Used To Identify Critical Habitat for Texas Golden Gladecress As required by section 4(b)(2) of the Act, we used the best scientific and commercial data available to designate PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 critical habitat. We reviewed available information pertaining to the habitat requirements of this species. In accordance with the Act and its implementing regulation at 50 CFR 424.12(e), we considered whether designating additional areas—outside those currently occupied as well as those occupied at the time of listing— are necessary to ensure the conservation of the species. We are not designating any areas outside the geographical area occupied by the species because occupied areas are sufficient for the conservation of the species. When determining critical habitat boundaries within this final rule, 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 for Texas golden gladecress and the Neches River rose-mallow. 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. Therefore, a Federal action involving these lands will 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. To guide what would be considered needed for the conservation of the species, we relied upon recommendations in a conservation plan for the San Augustine Glades developed by The Nature Conservancy of Texas (TNC 2003, p. 8). This served as a basis for the number of populations considered necessary for the conservation of Texas golden gladecress. This plan came from The Nature Conservancy’s structured conservation planning process that relied on a science team with expertise in the habitats and flora of East Texas. The plan was developed with input from representative experts from academia, botanical institutions, and Federal and State agencies. We consider this plan the best available scientific information to determine what is essential for the conservation of the Texas golden gladecress. This conservation plan concluded that at least eight viable (self-sustaining, ecologically functioning) populations of Texas golden gladecress, containing an average of 500 individuals each, at least one out of every five years, was the E:\FR\FM\11SER3.SGM 11SER3 mstockstill on DSK4VPTVN1PROD with RULES3 Federal Register / Vol. 78, No. 176 / Wednesday, September 11, 2013 / Rules and Regulations target conservation goal for the species (TNC 2003, pp. 8, 12). We currently know of three extant populations that have been monitored as recently as 2012, and a fourth population site that we consider to still be in existence because the habitat has not been destroyed, within the areas occupied by the species (see ‘‘Mapping Texas Golden Gladecress Critical Habitat’’ section below for how we mapped the occupied areas). We used information provided by a TPWD botanist to evaluate whether the four areas might be sufficient to support eight viable populations of the species (Singhurst 2012a, pers. comm.; Singhurst 2012b, pers. comm.). The maps provided by this species expert identified potential glades within these areas by using: soil map units; a time series of aerial photographs that depicted changes in land cover; and personal experience and expertise with the species, the habitat, and this area of East Texas (Singhurst 2012b, pers. comm.). These sites occur in discrete areas across the entire historic range of the species and include sites that represent the different landscape settings (open, rocky, grazed pasture on seasonally seepy Weches outcrops at Caney Creek Glade Site 1; on very small, scattered exposures of glauconite within a more dense cover of herbaceous species at the Chapel Hill site; and in an open, grazed glade at the Geneva site) and soil types (Nacogdoches, Trawick, and Bub soil series) that have been historically documented at Texas golden gladecress occurrences. Based on this analysis and our site visits, we determined that the occupied areas contain suitable habitat (with special management) to expand current populations and support additional populations of Texas golden gladecress to meet the conservation goals for the species. We judge there to be suitable sites within the occupied areas that can be used for natural expansion of existing populations or possible future augmentation if needed and advised during future recovery planning and implementation. The habitat in the four occupied areas is sufficient for attaining the goal of eight viable populations throughout the geographic range of the species. Therefore, additional areas as critical habitat outside of the currently occupied geographic areas would not be essential for the conservation of the species, and we have not identified any additional areas. Areas Occupied by the Texas Golden Gladecress As required by section 3(5)(A)(i) of the Act, for the purpose of designating critical habitat for Texas golden VerDate Mar<15>2010 19:16 Sep 10, 2013 Jkt 229001 gladecress, we defined the geographic area currently occupied by the species. Generally, we define occupied areas as those where recent surveys in 2012 confirmed the species was present (Singhurst 2012f, pers. comm.). For one area, occupancy by the species has not been confirmed since 1988 (TXNDD 2012b, entire); however, there have been no recent surveys due to lack of access to the properties. For the purposes of designation of critical habitat, we are considering this area to be currently occupied because the species was known from this area in the past and the habitat conditions that support the species appear intact (based on aerial imagery), except for the growth of some woody vegetation in some areas. In total, we found four areas currently occupied by the Texas golden gladecress at the time it is listed. Areas Unoccupied at the Time of Listing We considered whether there were any specific areas outside the geographic area found to be occupied by the Texas golden gladecress that are essential for the conservation of the species as required by section 3(5)(A)(ii) of the Act. We evaluated whether there was sufficient area for the conservation of the species within the occupied areas determined above. As a result of that evaluation, we concluded that the habitat within the four occupied areas is sufficient for attaining the goal of eight viable populations throughout the geographic range of the species. Therefore, additional areas as critical habitat outside of the currently occupied geographic areas would not be essential for the conservation of the species and we have not identified any areas that were unoccupied at the time of listing. Mapping Texas Golden Gladecress Critical Habitat To determine the boundaries of critical habitat units around the species areas occupied by the species, we used a geographic information system (GIS) to overlay the appropriate soil maps over the occupied areas. The Texas golden gladecress is restricted to the Weches Formation, being found on only three soil map units: Nacogdoches clay loam 1–5 percent slope (NeE); Trawick gravelly clay loam 5–15 percent slope (TuD); and Bub clay loam 2–5 percent slope (BuB). We drew the boundaries around contiguous segments of these soil mapping units from the online San Augustine and Sabine County’s soils survey (http:// WebSoilSurvey.nrcs.usda.gov/app/ WebSoilSurvey.aspx) encompassing the occupied areas to form the boundary of PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 56089 the four critical units by using the edge of the soil type layer. When determining critical habitat boundaries, we made every effort to avoid including developed areas such as lands covered by buildings, pavement, filled areas adjacent to paved roads, unpaved roads, and other structures because such lands lack physical or biological features for Texas golden gladecress. 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 final rule and are not designated as critical habitat. Therefore, 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. The critical habitat designation is defined by the map or maps, as modified by any accompanying regulatory text, presented at the end of this document in the rule portion. 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 http:// www.regulations.gov at Docket No. FWS–R2–ES–2013–0027, on our Internet sites http://www.fws.gov/ southwest/es/ElectronicLibrary/ ElectronicLibrary_Main.cfm, and at the field office responsible for the designation (see FOR FURTHER INFORMATION CONTACT above). We are designating as critical habitat lands that we have determined are occupied at the time of listing and contain sufficient physical or biological features to support life-history processes essential for the conservation of the Texas golden gladecress. Four units were designated based on sufficient elements of physical or biological features being present to support Texas golden gladecress life processes. Some units contained all of the identified elements of physical or biological features and supported multiple life processes. Some units contained only some elements of the physical or biological features necessary to support the Texas golden gladecress particular use of that habitat. E:\FR\FM\11SER3.SGM 11SER3 56090 Federal Register / Vol. 78, No. 176 / Wednesday, September 11, 2013 / Rules and Regulations Final Critical Habitat Designation for Texas Golden Gladecress gladecress. The critical habitat areas described below constitute our best assessment at this time of areas that meet the definition of critical habitat. Those four units are: (1) Geneva; (2) We are designating four units as critical habitat for Texas golden Chapel Hill; (3) Southeast Caney Creek Glades; and (4) Northwest Caney Creek Glades. The approximate area of each critical habitat unit is shown in Table 2. TABLE 2—DESIGNATED CRITICAL HABITAT UNITS FOR TEXAS GOLDEN GLADECRESS Private ac (ha) Critical habitat unit 1. 2. 3. 4. State ac (ha) Total size of all units ac (ha) Geneva .................................................................................................................................... Chapel Hill ............................................................................................................................... Southeast Caney Creek Glades .............................................................................................. Northwest Caney Creek Glades .............................................................................................. 381 (154) 147 (59) 37 (15) 767 (310) 7(3) 3 (1)* 3 (1) 8 (4) 388 (157) 150 (61) 40 (16) 775 (314) TOTAL .................................................................................................................................. 1,332 (539) 21 (9) 1,353 (548) *County owned. Note: Area sizes may not sum due to rounding. establish tree plantations, potential agricultural herbicide use to control woody plants, and destruction of the features by excavation, pipeline construction, or buildings. We present brief descriptions of all units, and the reasons why they meet the definition of critical habitat for Texas golden gladecress, below. mstockstill on DSK4VPTVN1PROD with RULES3 Unit 1: Geneva Unit 1 consists of 388 ac (157 ha) of private and State land located in northwest Sabine County, Texas. The unit is located 1.5 mi (2.3 km) south of Geneva, Texas, and 4.8 mi (7.7 km) north of Milam, Texas, and is bisected by SH 21. This unit is occupied at the time of listing and contains some of the physical or biological features essential to the conservation of the species, including open, sunny areas of Weches outcrops (glauconite exposures); some native Weches glade plant species characteristic of Texas golden gladecress sites (see Table 1); and Nacogdoches and Trawick soils. Approximately 2 percent (7.3 ac (3 ha)) of the land is State-owned and managed TXDOT ROW, and the Geneva Site Texas golden gladecress population occurs, in part, within this ROW. The remaining 98 percent of the land is privately owned. The area directly adjacent to the ROW Texas golden gladecress population has been cleared of woody vegetation within the recent past but is not fenced, so future land use is unknown. The geology and soils (primary constituent element 1 and 2) occur throughout the unit and aerial photography indicates that at least three other small, scattered open glades (as identified by TPWD) occur within the critical habitat unit. The physical or biological features essential to the conservation of the species in this unit may require special management considerations or protection to address threats of woody plant invasion into open glades, possible changes in land use, including planting of loblolly or long-leaf pine to VerDate Mar<15>2010 19:16 Sep 10, 2013 Jkt 229001 Unit 2: Chapel Hill Unit 2 consists of 150 ac (61 ha) of privately owned land, with one county road ROW, in northwestern San Augustine County, Texas. This unit is located 1.0 mi (1.6 km) south of SH 21, due west of the San Augustine-Sabine County line, and lies alongside County Road (CR) 151. This unit is linear in shape, running from southeast to northwest. Aside from CR 151, all other land in Unit 2 is privately owned. Current land cover appears to be approximately 70 percent woody cover; much of the forest being rows of pine trees. This unit was occupied at the time of listing by a population that grows on a privately owned, unfenced tract of land that measures approximately 0.25 ac (0.1 ha) in size. The geology and soils primary constituent elements occur throughout the unit, and aerial photography indicates that at least two other small, scattered, open glades (as identified by TPWD) occur within the critical habitat unit. The features essential to the conservation of the species in this unit may require special management considerations or protection to address threats of woody plant invasion into open glades throughout the unit, conversion of pasture to pine plantations, pipeline construction, and herbicide application. Unit 3: Southeast Caney Creek Glades Unit 3 consists of 39.9 ac (16.2 ha) just southeast of the City of San Augustine, San Augustine County, Texas. Approximately 99 percent of the PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 land within this unit is privately owned, with the other 1 percent being county ROW under the management of TXDOT. This unit is located 0.8 mi (1.2 km) south from SH 21 near San Augustine, Texas, along the north side of FM 3483. This unit is located across Sunrise Road from a glauconite quarry. The presence of the Texas golden gladecress plants at this site was last confirmed in the late 1980’s. The glade at this population site was described as being intact in 1996 by a forestry consultant, who subsequently revisited the site in 2000 and noted that invasive plants were encroaching into the glade (Walker 2012, pers comm., p. 4). Based on these records from the site, and the lack of alteration to the substrate as assessed from remote imagery, we determined that the site still contains all the physical or biological features; therefore, we consider the unit occupied at the time of listing. The features essential to the conservation of the species in this unit may require special management considerations or protection to address threats of woody plant invasion into the natural prairie and glade habitat, and pipeline construction. Unit 4: Northwest Caney Creek Glades Unit 4 consists of 775.3 ac (313.7 ha) that extends in a diagonal line from northeast to southwest, to the north and south of SH 21 just east of the City of San Augustine, San Augustine County, Texas. The unit is approximately 0.7 mi (1.1 km) wide. This unit is occupied at the time of listing. The geology and soils primary constituent elements occur throughout the unit and aerial photography indicates that at least five other small, scattered, open glades (as identified by TPWD) occur within the critical habitat unit. Approximately 1 E:\FR\FM\11SER3.SGM 11SER3 Federal Register / Vol. 78, No. 176 / Wednesday, September 11, 2013 / Rules and Regulations percent (7.8 ac) of the land is Stateowned and managed ROW by the TXDOT. The remaining 99 percent is privately owned. Approximately 75–80 percent of the southern portion of Unit 4 is forested. Historically, this unit was occupied by four of the eight known occurrences of Texas golden gladecress; however, three of the four have been lost to glauconite quarrying activities. The features essential to the conservation of the species in this unit may require special management considerations or protection to address threats of glauconite mining, woody plant invasion into the natural prairie and glade habitat, and pipeline construction. mstockstill on DSK4VPTVN1PROD with RULES3 Physical or Biological Features Neches River Rose-Mallow We derive the specific physical or biological features essential for Neches River Rose-mallow from studies of this species’ habitat, ecology, and life history as described in the Critical Habitat section of the proposed rule to designate critical habitat published in the Federal Register on September 11, 2012, (77 FR 55968), and in the information presented below. Additional information can be found in the final listing rule published in today’s Federal Register. We have determined that Neches River rose-mallow requires the following physical or biological features: Space for Individual and Population Growth and for Normal Behavior Neches River rose-mallow is endemic to open habitats in wetlands of the Pineywoods of East Texas (Gould 1975, p. 1; Correll and Johnston 1979, p. 1). The Neches River rose-mallow is found within seasonally flooded river floodplains as described by Diggs et al. (2006), where the natural bottomlands occupy flat, broad portions of the floodplains of major rivers and are seasonally inundated. Associated floodtolerant species in this habitat include of Quercus sp. (oak), Liquidambar styraciflua (sweetgum), Ulmus americana (American elm), Nyssa biflora (swamp tupelo), and Acer rubrum (red maple) (Diggs et al. 2006, p. 103). Habitat is characterized as sloughs, oxbows, terraces, and sand bars, and habitat found along depressional or low-lying areas of the Neches, Sabine, and Angelina River floodplains and Mud and Tantabogue Creek basins (Warnock 1995, p. 11). Sites include both intermittent and perennial wetlands with plants located within 3.2 ft (1.0 m) of standing water, depending on current drought and precipitation levels (Warnock 1995, p. VerDate Mar<15>2010 19:16 Sep 10, 2013 Jkt 229001 14). Water levels at each site are variable, depending on proximity to water, amount of rainfall, and floodwaters. Habitat elevations range from 170 to 265 ft (51–80 m) above sea level (Warnock 1995, p. 13). Warnock (1995) noted that seed dispersal is likely by water and Scott (1997, p. 5) also stated that seed dispersal appears to be entirely water dependent. While water-mediated seed dispersal of the Neches River rosemallow is highly likely, it is not known that flowing water is required for downstream dispersal of Neches River rose-mallow seeds. Rivers of East Texas tend to overflow onto banks and floodplains (Diggs et al. 2006, p. 78), especially during the rainy season, thereby providing an avenue for seed dispersal. Research has not been done to identify methods of seed dispersal upstream; however, avian species may facilitate this process. Based on the best scientific and commercial data, we identify intermittent and perennial, open waters in the Neches, Sabine, Angelina River basins and Mud and Tantabogue Creeks, with areas of seasonal or permanent inundation with native woody vegetation, as an essential physical or biological feature for the species. Food, Water, Air, Light, Minerals, or Other Nutritional or Physiological Requirements The Neches River rose-mallow is typically found in open, flat areas of wetlands with hydric, alluvial soils of the Inceptisol or Entisol orders (Gould 1975, p. 10; Warnock 1995, pp. 11, 13; Diggs et al. 2006, pp. 46, 79) that are frequently associated with flooded clay loams. Although the soils are generally water-saturated, they can often be surficially dry. Intermittent wetlands are inundated during the winter months but become dry during the summer months (Warnock 1995, p. 11). Rivers of East Texas tend to overflow onto banks and floodplains (Diggs et al. 2006, p. 78), especially during the rainy season, thereby dispersing seed. Precipitation in Texas increases from the west to the east, making East Texas an area with comparatively higher annual precipitation, generally ranging from 35 to 50 in (89–127 cm) (Gould 1975, p. 10). Many wetland species, including the Neches River rose-mallow, are adapted to highly variable rates of water flow, including seasonal high and low flows, and occasional floods and droughts. Normal habitat conditions include a cyclical pattern of wet winters and dry summers so the Neches River rosemallow may have some tolerance of PO 00000 Frm 00021 Fmt 4701 Sfmt 4700 56091 drought; however, the species may not be able to thrive in an environment with a higher frequency and intensity of droughts. Periods of drought may increase the susceptibility of sites to soil compaction from hogs and cattle, invasion from nonnative species, and herbivory. Optimal habitat conditions for Neches River rose-mallow include intermittent or perennial wetlands that can be variable throughout the year, often becoming surficially dry during the summer and wet during the winter or might be exposed to water yearround. Regarding the Neches River rosemallows’ light requirements, an open canopy is typical within Neches River rose-mallow habitat (Warnock 1995, pp. 11, 13), but plants also grow in partial sun (as is the case at SH 204 ROW). Sunlight is needed for blooming as the blooming period may only last 1 day (Snow and Spira 1993, p. 160). The growth of woody and weedy vegetation was historically maintained by natural fires that would occur every 1 to 3 years in East Texas (Landers et al. 1990, p. 136; Landers 1991, p. 73) thereby controlling the overgrowth of longleaf and loblolly pine, as well as nonnative species. Humans later used fire to suppress overgrowth; however, in the more recent past, human’s active fire suppression has allowed native species including sweetgum, oaks, Carya sp. (hickories), Diospyros virginiana (common persimmon), and Magnolia grandiflora (southern magnolia) to invade the natural pine forests (Daubenmire 1990, p. 341; Gilliam and Platt 1999, p. 22) and this woody overgrowth has reduced the open canopy needed by the Neches River rose-mallow. Lack of fire increases the opportunity for nonnative species, such as Triadica sebifera (Chinese tallow), to invade these sites and this invasion has become one of the most significant threats to the Neches River rose-mallow. Lack of fire has provided increased opportunities for this species to invade all Neches River rose-mallow sites. Therefore, based on the information above, we identify hydric alluvial soils of seasonally or permanently inundated wetlands and native woody or associated herbaceous vegetation, largely with an open canopy providing partial to full sun exposure with low levels or no nonnative species to be a physical or biological feature for the Neches River rose-mallow. Sites for Breeding, Reproduction, or Rearing (or Development) of Offspring The Neches River rose-mallow likely has similar seed buoyancy and seed dispersal mechanisms to Hibiscus E:\FR\FM\11SER3.SGM 11SER3 mstockstill on DSK4VPTVN1PROD with RULES3 56092 Federal Register / Vol. 78, No. 176 / Wednesday, September 11, 2013 / Rules and Regulations moscheutos whose seeds can remain buoyant for several hours (Warnock 1995, p. 20; Scott 1997, p. 8; Reeves 2008, p. 3) and for which seed dispersal appears to be entirely water dependent (Scott 1997, p. 5). Given this information and that Neches River rosemallow prefers depressional or palustrine areas, seed dispersal into sloped areas with higher elevations, like uplands, is not anticipated. Downstream or adjacent portions of streams or creeks of occupied Neches River rose-mallow sites may provide connectivity and new opportunities for reproduction. Longdistance seed dispersal ranges and upstream dispersal methods are unknown, but may be facilitated by avian species. Therefore, we identify flowing water as the likely agent for seed dispersal to adjacent or downstream habitat as a physical or biological feature for the Neches River rose-mallow. The Neches River rose-mallow is a perennial that dies back to the ground every year and resprouts from the base; however, still maintaining aboveground stems. Longevity of the species is unknown, but it may be long-lived. Cross-pollination occurs (Blanchard 1976, p. 38) within the Neches River rose-mallow populations and the species has high reproductive potential (fecundity). The number of flowers and fruits per plant were documented during the TPWD’s annual monitoring of the Neches River rose-mallow along SH ROWs. The species produced an average of 50 fruits per plant, but seed viability and survivorship are not known (Poole 2012a, pers. comm.). Potential pollinators of the Neches River rose-mallow may include, but are not limited to, the common bumblebee (Bombus pensylvanicus), Hibiscus bee (Ptilothrix bombiformis), moths, and the scentless plant bug Niesthrea louisianica (Klips 1995, p. 1471; Warnock 1995, p. 20; Warriner 2011, pers. comm.). Both H. laevis and H. moscheutos are pollinated by common bumblebees and the Hibiscus bee (Snow and Spira 1993, p. 160; Klips 1999, p. 270). The solitary Hibiscus bee prefers gently sloping or flat areas with sandy or sandy-loam soils for nesting areas (Vaughan et al. 2007, pp. 25–26; Black et al. 2009, p. 12), and female bees will excavate nest cavities in elevated, hard packed dirt roadways or levees near stands of Hibiscus (in this case H. palustris) and standing water (Rust 1980, p. 427). Members of the genus Bombus (family Apidae) are social bees, predominantly found in temperate zones, nesting underground (Evans et al. 2008, p. 6) in sandy soils (Cane 1991, p. 407). VerDate Mar<15>2010 19:16 Sep 10, 2013 Jkt 229001 Bumblebees nest in small cavities, often underground in abandoned rodent nests, grass (Black et al. 2009, p. 12), or in open, grassy habitat (Warriner 2012a, pers. comm.). Other abovegroundnesting bees that may potentially pollinate the Neches River rose-mallow may include carpenter, mason, and leaf cutter bees that nest in dead snags or twigs or standing dead wood (Warriner 2012a, pers. comm.). Maximum foraging distances of solitary and social bee species are 492 to 1,968 ft (150 to 600 m) (Gathmann and Tscharntke 2002, p. 762) and 263 to 5,413 ft (80 to 1,650 m) (Walther-Hellwig and Frankl 2000, p. 244), respectively. The scentless plant bug is a member of the Rhopalidae family found specifically in association with various members of the Malvaceae family. This species is known to deposit eggs on both the vegetative and reproductive parts of mallow plants (Spencer 1988, p. 421). Holes have been eaten in floral parts of Neches River rose-mallow plants suggesting that the scentless plant bug may be a pollinator as well as a consumer of the Neches River rose-mallow. Although we have some anecdotal information on the species’ potential habitat as well as other Hibiscus species needs for pollination, we do not have specific information for the Neches River rosemallow. Therefore, the physical or biological features for the Neches River rose-mallow were not based on the current pollinator information. Habitats Protected From Disturbance or Representative of the Historical, Geographic, and Ecological Distributions of the Species The natural geographic range of the Neches River rose-mallow is within Trinity, Houston, Harrison, and Cherokee Counties, Texas. In addition, populations of Neches River rosemallow have been introduced within their natural geographic range on Federal lands in Houston County and on private land in Nacogdoches County. In total, there are 12 occurrences of Neches River rose-mallow; however, 11 of these are within the known geographic range of the species, and, as of October 2011, are considered occupied by the Neches River rose-mallow. Several Neches River rose-mallow populations are found along SH ROWs, including SH 94 in Trinity County, SH 204 in Cherokee County, and SH 230 in Houston County. These populations are separated from one another and are considered distinct. Adjacent lands to the SH 230 ROW were purchased by the Texas Land Conservancy in 2004 (The Texas Land Conservancy 2011), an organization previously known as the PO 00000 Frm 00022 Fmt 4701 Sfmt 4700 Natural Areas Preservation Association. The Neches River rose-mallow plants in this site, referred to as Lovelady, are part of the population that included the Neches River rose-mallow plants in the SH 230 ROW. In the past, several subpopulations existed along multiple portions of the SH 204 ROW, however several of these subpopulations were not found in 2011 even though recent drought conditions have allowed surveyors to count Neches River rosemallow plants in parts of sites that were not accessible in the past because the sites were too wet. The Davy Crockett NF, Houston County, Texas, contains four extant sites of the Neches River rose-mallow; three introduced and one natural. The one natural population is found in Compartment 55 located west of the Neches River. This site is considered the most robust of all known extant populations (Poole 2011c, p. 3) and is almost entirely unaltered from its originally observed state as a seasonally wet, flatwood pond, with vegetation being distinctly zoned (TXNDD 2012a, p. 29). The remaining Neches River rosemallow sites are primarily on private land, although in several places they extend onto SH ROW. These include the (1) Mill Creek Gardens (also known as Hayter Blueberry Farm), Nacogdoches County; (2) Harrison County site in Harrison County; (3) Camp Olympia, Trinity County; (4) Champion, Trinity County. Portions of Lovelady (adjacent to SH 230 ROW), Houston County, and Boggy Slough (also part of SH 94 ROW), Trinity County, are also on private land. The Mill Creek Gardens population was introduced by the Stephen F. Austin State University Mast Arboretum who planted 96 Neches River rose-mallow plants at this site (Scott 1997, pp. 6–7). The Boggy Slough site consists of several scattered Neches River rosemallow subpopulations that are located in close proximity to one another. The Boggy Slough subpopulations and the SH 94 ROW population are separated by no more than 1.0 km (3,280 ft) and these two sites likely constitute a single, larger population, sharing pollinators, and exchanging genetic material (NatureServe 2004, p. 6; Poole 2011c, p. 2). One property was purchased in 2004 by The Texas Land Conservancy (The Texas Land Conservancy 2011), this site is referred to as Lovelady. The site at Harrison County, Camp Olympia, and Champion were not observed in 2011; however, using aerial imagery and the best scientific and commercial data available we determined that these sites contain the physical or biological E:\FR\FM\11SER3.SGM 11SER3 Federal Register / Vol. 78, No. 176 / Wednesday, September 11, 2013 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES3 features essential to the Neches River rose-mallow. East Texas is subtropical with a wide range of extremes in weather (Diggs et al. 2006, p. 65). The native vegetation of this region evolved with, and is adapted to, recurrent temperature extremes (Diggs et al. 2006, p. 67). The Pineywoods region of East Texas is vulnerable to even small climatic shifts because it is ‘‘balanced’’ on the eastern edge of a dramatic precipitation gradient. Temperature increases that are projected in climate change scenarios will likely be associated with increases in transpiration and more frequent summer droughts. Decreased rainfall may result in an eastward shift in the forest boundary and replacement of the Pineywoods forest with scrubland (Diggs et al. 2006, p. 80). There may also be a northerly shift of southerly species based on climate models that predict increasing temperatures and, therefore, increasing evapotranspiration and decreasing regional precipitation and soil moisture (Diggs et al. 2006 p. 73). In October 2011, the Service observed that all known Neches River rosemallow sites were impacted by extreme drought conditions. Predictions of climate change are variable, and effects from climate change on the Neches River rose-mallow are not fully understood. The information currently available on the effects of global climate change and increasing temperatures does not make sufficiently precise estimates of the location and severity of the effects specific to East Texas. Further, we are not currently aware of any climate change information specific to the habitat of the Neches River rose-mallow that would indicate what areas may become important to this species in the future. Therefore, we are not identifying any areas outside of those currently occupied as areas that may be suitable for Neches River rose-mallow due to the effects of climate change. Primary Constituent Elements for Neches River Rose-Mallow Under the Act and its implementing regulations, we are required to identify the physical or biological features essential to the conservation of Neches River rose-mallow in areas occupied at the time of listing, focusing on the features’ primary constituent elements. Primary constituent elements are those specific elements of the physical or biological features that provide for a species’ life-history processes and are essential to the conservation of the species. Based on our current knowledge of the physical or biological features and VerDate Mar<15>2010 19:16 Sep 10, 2013 Jkt 229001 habitat characteristics required to sustain the species’ life-history processes, we determine that the primary constituent elements specific to the Neches River rose-mallow are: (1) Intermittent or perennial wetlands within the Neches, Sabine, and Angelina River floodplains or Mud and Tantabogue Creek basins that contain: (a) Hydric alluvial soils and the potential for flowing water when found in depressional sloughs, oxbows, terraces, side channels, or sand bars; (b) Native woody or associated herbaceous vegetation, largely with an open canopy providing partial to full sun exposure with low levels or no nonnative species. With this designation of critical habitat, we intend to identify the physical or biological features essential to the conservation of the species, through the identification of the features’ primary constituent elements sufficient to support the life-history processes of the species. Special Management Considerations or Protection for Neches River RoseMallow When designating critical habitat, we assess whether the specific areas within the geographic area occupied by the species at the time of listing contain features that are essential to the conservation of the species and which may require special management considerations or protection. Threats to those features that define the primary constituent elements for the Neches River rose-mallow include: (1) Alteration of naturalized flow regimes through projects that require channelization; (2) water diversions or hydrologic change to streams and rivers; (3) encroachment from native woody riparian species and nonnative species; (4) detrimental roadside management practices including inappropriate frequency and timing of mowing during the species’ blooming period; (5) herbivory and, (6) trampling from hog and cattle; and (7) drought. Special management considerations or protection are required within critical habitat areas to address these threats. Special management activities that could ameliorate these threats include, but are not limited to: • Construction of cattle exclusion fencing to remedy herbivory at Lovelady to maintain plant survival and suitable habitat; • Restoration of the cattle stock pond back to a natural flatwoods pond at Lovelady to restore the sites hydrology; • Coordination with TXDOT to establish and continue effective management along ROWs for control of PO 00000 Frm 00023 Fmt 4701 Sfmt 4700 56093 native woody species and nonnatives (including, but not limited to mowing, brush-hogging, or other hand-clearing techniques) and completion of these techniques only during the appropriate life stages of the Neches River rosemallow to maintain open habitat; • Coordination with the Angelina and Neches River Authority and consultation with the U.S. Army Corps of Engineers on the proposed construction of Lake Columbia Reservoir in Cherokee County to maintain hydrology at the downstream Neches River rose-mallow site; • Consultation between the Service and the U.S. Army Corps of Engineers for any filling or draining of Federal jurisdictional wetlands to ensure maintenance of hydrology; and • Clearing or burning on the Davy Crockett NF for control of Chinese tallow and to maintain an adequate level of openness in habitat. Criteria Used To Identify Critical Habitat for Neches River Rose-Mallow As required by section 4(b)(2) of the Act, we use the best scientific data available to designate critical habitat. We reviewed all available information pertaining to the habitat requirements of the species. In accordance with the Act and its implementing regulation at 50 CFR 424.12(e), we also considered whether designating additional areas— outside those currently occupied as well as those occupied at the time of listing— are necessary to ensure the conservation of the species. We are not designating any areas outside the geographic area currently occupied by the species because we found that the currently occupied areas are sufficient for the conservation of the species. Areas Occupied by the Neches River Rose-Mallow For the purpose of designating critical habitat for the Neches River rosemallow, we defined the geographic area currently occupied by the species as required by section 3(5)(A)(i) of the Act. Generally, we define occupied areas based on the most recent field surveys available in 2011 and recent reports and survey information from the Davy Crockett NF, TPWD, TXDOT, and observations by species experts (Miller 2011, pers. comm.; TXNDD 2012a, entire). Currently occupied areas for the Neches River rose-mallow are found in Trinity, Houston, Cherokee, Nacogdoches, and Harrison Counties in East Texas. In total, we found 11 areas currently occupied by the Neches River rosemallow. Two of these areas have not been verified since the late 1970s and E:\FR\FM\11SER3.SGM 11SER3 mstockstill on DSK4VPTVN1PROD with RULES3 56094 Federal Register / Vol. 78, No. 176 / Wednesday, September 11, 2013 / Rules and Regulations mid-1990s. However, the best available scientific and commercial data does not indicate that these sites have been modified such that they no longer have the physical or biological features essential for the Neches River rosemallow, so we consider them still occupied. Four of the critical habitat units currently occupied are introduction sites, three of which are located on Davy Crockett NF compartments and one is located at Mill Creek Gardens. The remaining five units support existing populations of Neches River rose-mallow and the plants were observed at each of these nine areas in 2011 (Creech 2011b, pers. comm.; Miller 2011, pers. comm.; TXNDD 2012a, entire). To guide what would be considered needed for the conservation of the species, we relied upon Pavlik’s 1996 (pp. 127–155) Minimum Viable Population analysis tool, using the best scientific and commercial data on the species’ life history and reproductive characteristics and input from a species expert (Poole 2012a, pers. comm.). Based on this analysis, we concluded that at least 10 viable populations of the rose-mallow, containing an average of about 1,400 individuals each, was the conservation goal for the species. We considered whether the 11 occupied areas contained sufficient habitat to meet these conservation goals. Each area currently has one population, so the occupied areas are sufficient for the ten populations needed. However, the overall estimates of the number of individuals in each population are low, with the largest population estimated to contain 750 individuals at compartment 55 in October 2010 (Allen and Duty 2010, p. 4). All of the known populations currently have much fewer individuals than the conservation goals. Considering the size and amount of suitable habitat in the areas occupied by the species (see ‘‘Mapping Neches River Rose-mallow Critical Habitat’’ section below for how we mapped the occupied areas), we found that the 11 areas contain suitable habitat (with special management) to support increased population sizes to meet the conservation goals for the species. Based on this analysis and our site visits, we determined that the occupied areas contain suitable habitat (with future special management) to support larger populations of Neches River rosemallow to meet the conservation goals for the species. We judge there to be suitable sites within the occupied areas that can be used for natural expansion of the populations during future recovery planning and implementation. The habitat in the 11 occupied areas is VerDate Mar<15>2010 19:16 Sep 10, 2013 Jkt 229001 sufficient for attaining the goal of 10 viable populations throughout the geographic range of the species. Areas Unoccupied by the Neches River Rose-Mallow We considered whether there were any specific areas outside the geographic area found to be occupied by the rose-mallow that are essential for the conservation of the species, as required by section 3(5)(A)(ii) of the Act. We first evaluated whether there was sufficient area for the conservation of the species within the occupied areas determined above. We acknowledge there is some contradicting evidence regarding occupancy status for 3 of the 11 Units designated as critical habitat for the Neches River rose-mallow. We maintain Units 2, 9, and 11 are occupied by the species based on the presence of essential features and the absence of noticeable habitat disturbances since the last verifiable record of the species in each area. However, we alternatively designate Units 2, 9, and 11 under section 3(5)(A)(ii) of the Act because we consider them to be essential for the conservation of the Neches River rosemallow, regardless of occupancy data. Including these units in the designation of critical habitat for the Neches River rose-mallow aligns with the conservation strategy for this species. Based on the Minimum Viable Population analysis and our site visits to the Neches River rose-mallow sites in 2011, we determined that the occupied areas contain suitable habitat (with future special management) to support larger populations of Neches River rosemallow to meet the conservation goals for the species. The habitat in the 11 occupied areas is sufficient for attaining the goal of 10 viable populations throughout the geographic range of the species. Therefore, identifying additional areas as critical habitat outside of the currently occupied geographic areas would not be essential for the conservation of the species, and we have not identified any additional areas. Mapping Neches River Rose-Mallow Critical Habitat Once we determined the occupied areas, we next delineated the primary constituent elements. We estimated the area of habitat based on several key features determined through our 2011 field surveys and in past reports on habitat requirements. Since the Neches River rose-mallow prefers depressional or palustrine areas, we used topographic maps to identify habitat within uplands or habitat that exhibited changes in PO 00000 Frm 00024 Fmt 4701 Sfmt 4700 slope where the species was not anticipated to occur due to lack of hydric soils and where seeds were not likely to be dispersed due to a lack of flowing water (i.e., the uplands). National Wetland Inventory (NWI) maps were used to determine habitat types within palustrine systems. All areas, when mapped with this layer in GIS, were associated with emergent, forested, or scrub-shrub, with one area having an undetermined bottom (open water). All critical habitat units are seasonally, permanently, or semi-permanently flooded, which is consistent with our observations and available data. Due to the high variation of alluvial and hydric soils of Neches River rose-mallow habitat, specific soil types were not mapped during this analysis but are still a general wetland indicator. To determine the boundaries of critical habitat units around the areas occupied by the species, we focused primarily on available canopy openness. We used topographic and NWI maps for confirmation of suitable habitat, then used aerial imagery available through Google Earth to determine dense cover in the habitat. We drew boundaries around the open areas that delineate the outer boundary of our critical habitat units. Critical habitat boundaries did not expand into heavily forested areas because those areas are generally too shady for the Neches River rose-mallow and were therefore not included. When determining critical habitat boundaries, we made every effort to avoid including developed areas covered by manmade structures including: Buildings; bridges; aqueducts; runways; roads; well pads; metering stations; other paved areas; unpaved roads; and the filled areas immediately adjacent to pavement. These structures lack the physical or biological features essential to the Neches River rose-mallow. 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, as is the case with Unit 4, where the Neches River rose-mallow is known to occur in habitat beneath the SH 204 ROW overpass in areas that receive some sun. Any such lands inadvertently left inside critical habitat boundaries shown on the maps of this final rule have been excluded by text in the final rule and are not designated as critical habitat. Therefore, 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 E:\FR\FM\11SER3.SGM 11SER3 Federal Register / Vol. 78, No. 176 / Wednesday, September 11, 2013 / Rules and Regulations or biological features in the adjacent critical habitat. The critical habitat designation is defined by the map or maps, as modified by any accompanying regulatory text, presented at the end of this document in the rule portion. 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 http:// www.regulations.gov at Docket No. FWS–R2–ES–2013–0027, on our Internet sites http://www.fws.gov/ southwest/es/ElectronicLibrary/ ElectronicLibrary_Main.cfm, and at the field office responsible for the designation (see FOR FURTHER INFORMATION CONTACT above). We are designating as critical habitat lands that we have determined are occupied at the time of listing and contain sufficient physical or biological features essential in supporting lifehistory processes essential in the conservation of the Neches River rosemallow that may require special management. Eleven units were designated based on sufficient elements of physical or biological features being present to support the Neches River rose-mallow life processes. Some units contained all of the identified elements of physical or biological features and supported multiple life processes. Some units contained only some elements of the physical or biological features necessary to support the Neches River rosemallow particular use of that habitat. 56095 Final Critical Habitat Designation for Neches River Rose-mallow We are designating 11 units as critical habitat for Neches River rose mallow. The critical habitat areas described below constitute our best assessment at this time of areas that meet the definition of critical habitat. Those 11 units are (1) SH 94 ROW, Trinity County; (2) Harrison County; (3) Lovelady, Houston County; (4) SH 204 ROW, Cherokee County; (5) Davy Crockett NF, Compartment 55, Houston County; (6) Davy Crockett NF, Compartment 11, Houston County; (7) Davy Crockett NF, Compartment 20, Houston County; (8) Davy Crockett NF, Compartment 16, Houston County; (9) Champion, Trinity County; (10) Mill Creek Gardens, Nacogdoches County; and (11) Camp Olympia, Trinity County. The approximate area of each critical habitat unit is shown in Table 3. TABLE 3—CRITICAL HABITAT UNITS FOR THE NECHES RIVER ROSE-MALLOW Private ac (ha) Critical habitat unit State ac (ha) Federal ac (ha) Size of Unit ac (ha) 1. SH 94 ROW/Boggy Slough ......................................................... 2. Harrison County ........................................................................... 3. Lovelady/(Near SH 230 ROW) .................................................... 4. SH 204 ROW ............................................................................... 5. Davy Crockett NF, Compartment 55 ........................................... 6. Davy Crockett NF, Compartment 11 ........................................... 7. Davy Crockett NF, Compartment 20 ........................................... 8. Davy Crockett NF, Compartment 16 ........................................... 9. Champion .................................................................................... 10. Mill Creek Gardens (emergency spillway) ................................. 11. Camp Olympia ........................................................................... 2.3 (0.9) 20.8 (8.4) 6.3 (2.5) 0 0 0 0 0 2.9 (1.2) 95.3 (38. 6) 0.2 (0.1) 1.1 (0.5) 0 0 8.7 (3.5) 0 0 0 0 0 0 0 0 0 0 0 3.8 (1.5) 7.3 (3.0) 3.4 (1.4) 32.8 (13.3) 0 0 0 3.4 (1.4) 20.8 (8.4) 6.3 (2.5) 8.7 (3.5) 3.8 (1.5) 7.3 (3.0) 3.4 (1.4) 32.8 (13.3) 2.9 (1.2) 95.3 (38. 6) 0.2 (0.1) Total Acreages for All Critical Habitat Units: ............................ ............................ ............................ ............................ 166.5 (67.0) Note: Area sizes may not sum due to rounding. mstockstill on DSK4VPTVN1PROD with RULES3 We present brief descriptions of all units, and reasons why they meet the definition of critical habitat for the Neches River rose-mallow, below. Unit 1: SH 94 ROW Unit 1 consists of 3.4 ac (1.4 ha) on both the 94 ROW and on private land in Trinity County. The unit was occupied at the time of listing and contains the physical or biological features essential to the conservation of the species: a wetland with hydric alluvial soils with the potential for flowing water and in some places, an open canopy with partial to full sun exposure. The unit parallels SH 94 for 0.1 mi (0.2 km) to the north, beginning about 0.06 mi (0.09 km) from the now abandoned rest stop. From the easternmost boundary, Unit 1 then extends onto private lands (about 0.06 mi (0.09 km)) where it ends, abutting a drainage ditch and levee. The unit VerDate Mar<15>2010 19:16 Sep 10, 2013 Jkt 229001 parallels the ditch for about 0.8 mi (1.3 km) until vegetation becomes thick and the canopy cover increases. SH 94 ROW was first observed in 1955 with only herbarium specimens collected, and in 1968, over 100 plants were counted (TXNDD 2012a, pp. 1–11). A total of 128 plants were counted in October 2011. Unit 1 is optimal habitat for the Neches River rose-mallow as indicated by the abundance of individual plants observed in fall 2011 despite drought conditions. The features essential to the conservation of the species in Unit 1 may require special management considerations or protection to address the threats of: hydrologic changes on the private lands, management of nonnative species and native woody vegetation, and appropriate timing and frequency of mowing and maintenance along the ROW. PO 00000 Frm 00025 Fmt 4701 Sfmt 4700 Unit 2: Harrison County Unit 2 is found at a location between 0.2–0.4 mi (0.3–0.6 km) north of Farm to Market Road 2625 in Harrison County. The unit was occupied at the time of listing and contains the physical or biological features essential to the conservation of the species. A specimen of the Neches River rose-mallow was first collected from the site in 1980 by Elray Nixon from SFASU and was originally thought to be H. laevis; however, the specimen was recently reexamined and confirmed as the Neches River rose-mallow (TXNDD 2012a, p. 12). Warnock (1995) provided only generic coordinates for the location of this site, but, using aerial photography, we were able to determine the location of this unit. Unit 2 is composed of 8.4 ha (20.8 ac) of occupied habitat entirely on private land. The physical or biological features E:\FR\FM\11SER3.SGM 11SER3 56096 Federal Register / Vol. 78, No. 176 / Wednesday, September 11, 2013 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES3 essential to the conservation of the species include the large wetland or pond on hydric alluvial soils and open canopy. The features essential to the conservation of the species in Unit 2 may require special management considerations or protection to address the threats of management of nonnative species and native woody vegetation, and maintenance of natural hydrology of the wetland. As noted above, there is contradicting evidence regarding the occupancy of Unit 2. However, Unit 2 contains the physical or biological features essential to the conservation of the Neches River rose-mallow and these features support life-history characteristics of the species (such as palustrine wetland habitat and native woody vegetation with an open canopy). The presence of these traits and the absence of noticeable habitat disturbances makes it likely that this unit remains occupied, despite the last verified record of this species being from the late 1980’s, and therefore it meets the definition of critical habitat under section 3(5)(A)(i) of the Act because it is within the geographical area occupied by the species at the time of listing. However, we alternatively designate Unit 2 under section 3(5)(A)(ii) of the Act because we consider the unit to be essential for the conservation of the Neches River rosemallow, regardless of occupancy data. Including this unit in the designation of critical habitat for the Neches River rose-mallow aligns with the conservation strategy for this species. We have determined that the species requires a minimum of 10 populations and that the occupied areas contain suitable habitat (with future special management) to support larger populations of Neches River rosemallow to meet the conservation goals for the species. The habitat in the 11 units is sufficient for attaining the goal of 10 viable populations throughout the geographic range of the species. Thus, for the purposes of this rulemaking, we determine that Unit 2 meets the definition of critical habitat under section 3(5)(A)(i) or, alternatively, under section 3(5)(A)(ii) of the Act. Unit 3: Lovelady Unit 3 in Houston County, found northwest of Farm to Market 230, extends 0.3 mi (0.5 km) north and contains 6.3 ac (2.5 ha) of private land. The unit was occupied at the time of listing and contains the physical or biological features essential to the conservation of the species. The majority of land in Unit 3 belongs to the Texas Land Conservancy, who VerDate Mar<15>2010 19:16 Sep 10, 2013 Jkt 229001 purchased the property in 2004 specifically for the conservation of the Neches River rose-mallow. This unit extends northward onto private lands where a known population of the Neches River rose-mallow was reverified during a 2004 TXDOT survey. Essential biological features within Unit 3 include a depressional creek bed within Tantabogue Creek basin; inundation from overflow of the creek from the northwest or from rain events that may allow ponding in low-lying areas; open habitat with native woody vegetation; and frequently inundated alluvial soils. The features essential to the conservation of the species in Unit 3 may require special management considerations or protection to address the following threats: Management of nonnative species and native woody vegetation; maintenance of natural hydrology of habitat and adjacent areas, including rebuilding the stock pond to mimic natural flow regimes; construction of a cattle-exclusion fence to restrict grazing; and long-term maintenance of Tantabogue Creek flows by obtaining a conservation easement or agreement. Unit 4: SH 204 ROW Unit 4 in Cherokee County contains 8.7 ac (3.5 ha) of occupied habitat along SH 204 ROW and within the Mud Creek basin. The unit was occupied at the time of listing and contains the physical or biological features essential to the conservation of the species. Unit 4 extends about 0.3 mi (0.5 km) from east to west and about 0.01 mi (0.02 km) from SH 204, on both the north and south sides of the highway, up to the private fence. Unit 4 also includes a 0.1 mi (0.2 km) section of the Mud Creek basin where Neches River rose-mallow could expand or where seeds could be dispersed. This site was first observed in 1992 with a single plant and since that time, a maximum number of 75 plants have been counted (in 1997). Since 2003, the Neches River rosemallow has been observed underneath most of the overpass (TXNDD 2012a, pp. 20–28), in areas that did receive some level of sun (not completely shaded). Essential biological features of Unit 4 include its location within the Mud Creek basin, open habitat with full sun, and association with alluvial, hydric soils. The features essential to the conservation of the species in Unit 4 may require special management considerations or protection to address the threats of management of nonnative species and native woody vegetation, maintenance of natural hydrology of the PO 00000 Frm 00026 Fmt 4701 Sfmt 4700 wetland, and appropriate timing and frequency of mowing and maintenance along the ROW. Unit 5: Davy Crockett NF, Compartment 55 Unit 5 is the only unit that contains a natural population of the Neches River rose-mallow on Federal lands within the Davy Crockett NF. The unit was occupied at the time of listing and contains the physical or biological features essential to the conservation of the species. Occupied habitat of Unit 5 includes 3.8 ac (1.5 ha). An open flatwood or forested (Cowardin et al. 1979, p. 20) pond is surrounded by pine-oak forest. Unit 5 is 0.09 mi (0.14 km) in diameter and includes a palustrine flatwood pond and the surrounding open habitat. Essential habitat features of Unit 5 include its location within the Neches River basin, adjacent to a flatwood pond where water could be exchanged, surrounding native woody vegetation, and associated alluvial soils. The features essential to the conservation of the species in Unit 5 may require special management considerations or protection to address the threats of management of nonnative species and native woody vegetation, maintenance and repair of habitat from hog damage, maintenance of natural hydrology of the wetland, and controlled use of herbicides. Unit 6: Davy Crockett NF, Compartment 11 Unit 6 includes 7.3 ac (3.0 ha) of occupied habitat on Compartment 11 on Federal land in the Davy Crockett NF within Houston County. The unit was occupied at the time of listing and contains the physical or biological features essential to the conservation of the species. The SFASU introduced 200 plants into a seasonally flooded and low-lying wetland. Unit 6 is 0.2 mi (0.3 km) in diameter, and essential habitat features include a partially open, depressional pond surrounded by native vegetation. The features essential to the conservation of the species in Unit 6 may require special management considerations or protection to address the threats of management of nonnative species and native woody vegetation, maintenance of natural hydrology of the wetland, maintenance and repair of habitat from hog damage, and controlled use of herbicides. Unit 7: Davy Crockett NF, Compartment 20 Unit 7 includes 3.4 ac (1.4 ha) of Federal land in Compartment 20 of the E:\FR\FM\11SER3.SGM 11SER3 Federal Register / Vol. 78, No. 176 / Wednesday, September 11, 2013 / Rules and Regulations Unit 9: Champion The features essential to the conservation of the species in Unit 9 may require special management considerations or protection to address the threats of management of nonnative species and native woody vegetation, maintenance of natural hydrology of the entire site, and habitat conversion to planted pine and other hardwoods. As noted above, there is contradicting evidence regarding the occupancy of Unit 9. However, Unit 9 contains the physical or biological features essential to the conservation of the Neches River rose-mallow and these features support life-history characteristics of the species (such as palustrine wetland habitat with an open canopy). The presence of these traits and the absence of noticeable habitat disturbances makes it likely that this unit remains occupied, despite the last verified record of this species in 2001, and therefore it meets the definition of critical habitat under section 3(5)(A)(i) of the Act because it is within the geographical area occupied by the species at the time of listing. However, we alternatively designate Unit 9 under section 3(5)(A)(ii) of the Act because we consider the unit to be essential for the conservation of the Neches River rose-mallow, regardless of occupancy data. Including this unit in the designation of critical habitat for the Neches River rose-mallow aligns with the conservation strategy for this species. We have determined that the species requires a minimum of 10 populations and that the occupied areas contain suitable habitat (with future special management) to support larger populations of Neches River rosemallow to meet the conservation goals for the species. The habitat in the 11 units is sufficient for attaining the goal of 10 viable populations throughout the geographic range of the species. Thus, for the purposes of this rulemaking, we determine that Unit 9 meets the definition of critical habitat under section 3(5)(A)(i) or, alternatively, under section 3(5)(A)(ii) of the Act. The Champion site, Trinity County, is located on private land approximately 0.7 mi (1.1 km) south-southeast of the Houston County line, about 0.8 mi (1.2 km) north of the confluence of White Rock Creek and Cedar Creek (TXNDD 2012a, p. 55). The unit was occupied at the time of listing and contains the physical or biological features essential to the conservation of the species. Two small polygons are being designated as occupied critical habitat, both encompassing 1.2 ha (2.9 ac). Essential habitat features on the unit include palustrine wetlands with an open canopy. Unit 10: Mill Creek Gardens Unit 10 is an introduced site at Mill Creek Gardens, Nacogdoches County. Stephen F. Austin State University Mass Arboretum purchased the land and created the gardens in 1995 as part of a conservation agreement. The unit was occupied at the time of listing and contains the physical or biological features essential to the conservation of the species. Plants grown from cuttings by SFASU were introduced within research plots in an area that overflows from an adjacent pond. According to a commenter, this site is along an emergency spillway of a dam where the Davy Crockett NF, Houston County. The unit was occupied at the time of listing and contains the physical or biological features essential to the conservation of the species. The SFASU introduced 200–250 plants in 2000, and the site was occupied at the time of listing. Essential habitat features in this unit include the hydric alluvial soils, native woody vegetation, natural flows and hydrology of the draining pond, and an open canopy of the perennial wetland where the Neches River rose-mallow is located. The features essential to the conservation of the species in Unit 7 may require special management considerations or protection to address the threats of management of nonnative species and native woody vegetation, maintenance of natural hydrology of the wetland, maintenance and repair of habitat from hog damage, and controlled use of herbicides. Unit 8: Davy Crockett NF, Compartment 16 mstockstill on DSK4VPTVN1PROD with RULES3 Unit 8 encompasses 32.8 ac (13.3 ha) of occupied Federal habitat in the Davy Crocket NF, Houston County. The SFASU introduced 450 plants at this site in 2000, but only 43 stem clusters were observed in 2011. The unit was occupied at the time of listing and contains the physical or biological features essential to the conservation of the species. Essential habitat and biological features include a partially open depressional wetland within the Neches River floodplain, native riparian plant associates, and alluvial soils. The features essential to the conservation of the species in Unit 8 may require special management considerations or protection to address the threats of management of nonnative species and native woody vegetation, maintenance of natural hydrology of the wetland, restriction of wetland conversion to beaver dams, and controlled use of herbicides. VerDate Mar<15>2010 19:16 Sep 10, 2013 Jkt 229001 PO 00000 Frm 00027 Fmt 4701 Sfmt 4700 56097 soil is much different than at any of the natural population sites. However, vegetation around the site is well adapted to full and partial water inundation (TXNDD 2012a, p. 50), both of which are essential habitat features. The unit contains 95.3 ac (38. 6 ha) of occupied habitat. The features essential to the conservation of the species in Unit 10 may require special management considerations or protection to address the threats of management of nonnative species and native woody vegetation, maintaining natural hydrology of the entire site, maintenance and repair of habitat from hog damage, and maintaining the natural hydrology of the adjacent pond. Unit 11: Camp Olympia Unit 11 is located on private property in Trinity County. The unit contains 0.2 ac (0.1 ha) of palustrine wetland habitat north of Lake Livingston. The documented presence of the Neches River rose-mallow at this site is based on voucher specimens collected in 1977 and in 1978. The site has only been visited by a species expert twice since 1978. Although site was surveyed by Klips in 1992 and Warnock in 1993 without success, leading Warnock (1995, p. 6) to list the site as extirpated or historical, there is reason to believe that the plants may still be there. In addition to site conditions that can change with fluctuations in water level; resulting in shifting of the plants’ location, Warnock’s 1993 site survey was conducted from the water (canoe), not from the land, and the presence of the Neches River rose-mallow may have been hidden from view by dense vegetation at the water’s edge. The site could have been overgrown, the plant may not have been in bloom at the time of the survey, and environmental factors could have hindered the production of flowers at the time of the survey. Warnock (1995, p. 6) suggested that the Neches River rose-mallow was highly dependent on the water levels of Lake Livingston; therefore, complete inundation of the site may cause extirpation of this population. The unit was occupied at the time of listing and contains the physical or biological features essential to the conservation of the species including the potential for flowing water and an open canopy providing full to partial sun exposure. The features essential to the conservation of the species in Unit 11 may require special management considerations or protection to address the threats of management of nonnative species and native woody vegetation to maintain openness, and hydrological E:\FR\FM\11SER3.SGM 11SER3 56098 Federal Register / Vol. 78, No. 176 / Wednesday, September 11, 2013 / Rules and Regulations changes through potential site alteration or construction projects. As noted above, there is contradicting evidence regarding the occupancy of Unit 11. However, Unit 11 contains the physical or biological features essential to the conservation of the Neches River rose-mallow and these features support life-history characteristics of the species (such as palustrine wetland habitat with an open canopy). The presence of these traits and the absence of noticeable habitat disturbances makes it likely that this unit remains occupied, despite the last verified record of this species in 1978, and therefore it meets the definition of critical habitat under section 3(5)(A)(i) of the Act because it is within the geographical area occupied by the species at the time of listing. However, we alternatively designate Unit 11 under section 3(5)(A)(ii) of the Act because we consider the unit to be essential for the conservation of the Neches River rose-mallow, regardless of occupancy data. Including this unit in the designation of critical habitat for the Neches River rose-mallow aligns with the conservation strategy for this species. We have determined that the species requires a minimum of 10 populations and that the occupied areas contain suitable habitat (with future special management) to support larger populations of Neches River rosemallow to meet the conservation goals for the species. The habitat in the 11 units is sufficient for attaining the goal of 10 viable populations throughout the geographic range of the species. Thus, for the purposes of this rulemaking, we determine that Unit 11 meets the definition of critical habitat under section 3(5)(A)(i) or, alternatively, under section 3(5)(A)(ii) of the Act. mstockstill on DSK4VPTVN1PROD with RULES3 Effects of Critical Habitat Designation for the Texas Golden Gladecress and the Neches River Rose-Mallow Section 7 Consultation Section 7(a)(2) of the Act requires Federal agencies, including the Service, to ensure that any action they fund, authorize, or carry out is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of designated critical habitat of such species. In addition, section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any agency action that is likely to jeopardize the continued existence of any species listed under the Act or result in the destruction or adverse modification of critical habitat. Decisions by the 5th and 9th Circuit Courts of Appeals have invalidated our VerDate Mar<15>2010 19:16 Sep 10, 2013 Jkt 229001 regulatory definition of ‘‘destruction or adverse modification’’ (50 CFR 402.02) (see Gifford Pinchot Task Force v. U.S. Fish and Wildlife Service, 378 F. 3d 1059 (9th Cir. 2004) and Sierra Club v. U.S. Fish and Wildlife Service et al., 245 F.3d 434, 442 (5th Cir. 2001)), and we do not rely on this regulatory definition when analyzing whether an action is likely to destroy or adversely modify critical habitat. Under the statutory provisions of the Act, we determine destruction or adverse modification on the basis of whether, with implementation of the proposed Federal action, the affected critical habitat would continue to serve its intended conservation role for the species. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency (action agency) must enter into consultation with us. Examples of actions that are subject to the section 7 consultation process are actions on State, tribal, local, or private lands that require a Federal permit (such as a permit from the U.S. Army Corps of Engineers under section 404 of the Clean Water Act (33 U.S.C. 1251 et seq.) or a permit from the Service under section 10 of the Act) or that involve some other Federal action (such as funding from the Federal Highway Administration, Federal Aviation Administration, or the Federal Emergency Management Agency). Federal actions not affecting listed species or critical habitat, and actions on State, tribal, local, or private lands that are not federally funded or authorized, do not require section 7 consultation. As a result of section 7 consultation, we document compliance with the requirements of section 7(a)(2) through our issuance of: (1) A concurrence letter for Federal actions that may affect, but are not likely to adversely affect, listed species or critical habitat; or (2) A biological opinion for Federal actions that may affect, or are likely to adversely affect, listed species or critical habitat. When we issue a biological opinion concluding that a project is likely to jeopardize the continued existence of a listed species and/or destroy or adversely modify critical habitat, we provide reasonable and prudent alternatives to the project, if any are identifiable, that would avoid the likelihood of jeopardy and/or destruction or adverse modification of critical habitat. We define ‘‘reasonable and prudent alternatives’’ (at 50 CFR 402.02) as alternative actions identified during consultation that: PO 00000 Frm 00028 Fmt 4701 Sfmt 4700 (1) Can be implemented in a manner consistent with the intended purpose of the action, (2) Can be implemented consistent with the scope of the Federal agency’s legal authority and jurisdiction, (3) Are economically and technologically feasible, and (4) Would, in the Director’s opinion, avoid the likelihood of jeopardizing the continued existence of the listed species and/or avoid the likelihood of destroying or adversely modifying critical habitat. Reasonable and prudent alternatives can vary from slight project modifications to extensive redesign or relocation of the project. Costs associated with implementing a reasonable and prudent alternative are similarly variable. Regulations at 50 CFR 402.16 require Federal agencies to reinitiate consultation on previously reviewed actions in instances where we have listed a new species or subsequently designated critical habitat that may be affected and the Federal agency has retained discretionary involvement or control over the action (or the agency’s discretionary involvement or control is authorized by law). Consequently, Federal agencies sometimes may need to request reinitiation of consultation with us on actions for which formal consultation has been completed, if those actions with discretionary involvement or control may affect subsequently listed species or designated critical habitat. Application of the ‘‘Adverse Modification’’ Standard The key factor related to the adverse modification determination is whether, with implementation of the proposed Federal action, the affected critical habitat would continue to serve its intended conservation role for the species. Activities that may destroy or adversely modify critical habitat are those that alter the physical or biological features to an extent that appreciably reduces the conservation value of critical habitat for Texas golden gladecress and Neches River rosemallow. As discussed above, the role of critical habitat is to support life-history needs of the 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 destroy or adversely modify such habitat, or that may be affected by such designation. E:\FR\FM\11SER3.SGM 11SER3 Federal Register / Vol. 78, No. 176 / Wednesday, September 11, 2013 / Rules and Regulations Texas Golden Gladecress Activities that may affect critical habitat, when carried out, funded, or authorized by a Federal agency, should result in consultation for the Texas golden gladecress. These activities include, but are not limited to the following. Actions that would disturb or alter the natural vegetation community or the underlying geology supporting the species to the extent that the critical habitat would be adversely modified, and would also result in the decline of most, or even all, of the plants due to the small areal extent of their populations. Such activities could include, but are not limited to, removal of plant cover, soil, and underlying geology; construction of buildings or new roads or road improvements atop or directly upslope of population sites; application of herbicides that kill above ground plants or seedlings; plantings of pine trees in close proximity to small glade habitats that results in shading and accumulation of leaf litter; and land use practices that directly or indirectly encourage overgrowth by nonnative and native woody species. These activities could adversely affect the primary constituent elements, and in some cases where the primary constituent elements directly underlie the populations and their immediate surroundings, also likely constitute jeopardy to the species. mstockstill on DSK4VPTVN1PROD with RULES3 Neches River Rose-Mallow Activities that may affect critical habitat, when carried out, funded, or authorized by a Federal agency, should result in consultation for the Neches River rose-mallow. These activities include, but are not limited to the following. Actions that would by themselves, or in conjunction with other land activities, disturb or alter the vegetation community, underlying substrate, and hydrology to the extent that Neches River rose-mallow’s critical habitat would be adversely modified, usually resulting in the decline or loss of the plants themselves. Such activities could include, but are not limited to, channelization projects that alter natural flow regimes, changes to site hydrology due to water diversions from streams and rivers, allowing nonnative and native woody riparian species to encroach into occupied sites, grazing during times of drought stress, detrimental roadside management practices including inappropriate frequency and timing of mowing (during blooming), herbicide applications in close proximity to plants, lack of management of feral hog population that VerDate Mar<15>2010 19:16 Sep 10, 2013 Jkt 229001 causes trampling of habitat and damage to plants, and herbivory by cattle. These activities could adversely affect the primary constituent elements that are required by the species. 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 geographic areas owned or controlled by the Department of Defense, or designated for its use, that are subject to an integrated natural resources management plan [INRMP] prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary determines in writing that such plan provides a benefit to the species for which critical habitat is designated.’’ There are no Department of Defense lands with a completed INRMP within the critical habitat designation. Application of Section 4(b)(2) of the Act Exclusions Section 4(b)(2) of the Act states that the Secretary shall designate and make revisions to critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat. The Secretary may exclude an area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless he determines, based on the best scientific data available, that the failure to designate such area as critical habitat will result in the extinction of the species. In making that determination, the statute on its face, as well as the legislative history, are clear that the Secretary has broad discretion regarding which factor(s) to use and how much weight to give to any factor. Under section 4(b)(2) of the Act, we may exclude an area from designated critical habitat based on economic impacts, impacts on national security, or any other relevant impacts. In considering whether to exclude a particular area from the designation, we identify the benefits of including the area in the designation, identify the benefits of excluding the area from the designation, and evaluate whether the benefits of exclusion outweigh the benefits of inclusion. If the analysis indicates that the benefits of exclusion outweigh the benefits of inclusion, the Secretary may exercise her discretion to exclude the area only if such exclusion PO 00000 Frm 00029 Fmt 4701 Sfmt 4700 56099 would not result in the extinction of the species. Exclusions Based on Economic Impacts Under section 4(b)(2) of the Act, we consider the economic impacts of specifying any particular area as critical habitat. In order to consider economic impacts, we prepared a draft economic analysis of the proposed critical habitat designation and related factors (Industrial Economics 2013a). The draft analysis, dated April 16, 2013, (78 FR 22506) was made available for public review from April 16, 2013, through May 16, 2013. Following the close of the comment period, a final analysis (dated June 27, 2013) of the potential economic effects of the designation was developed taking into consideration the public comments and any new information (Industrial Economics 2013b). The intent of the final economic analysis (FEA) is to quantify the economic impacts of all potential conservation efforts for Texas golden gladecress and the Neches River rosemallow; some of these costs will likely be incurred regardless of whether we designate critical habitat (baseline). The economic impact of the final critical habitat designation is analyzed by comparing scenarios both ‘‘with critical habitat’’ and ‘‘without critical habitat.’’ The ‘‘without critical habitat’’ scenario represents the baseline for the analysis, considering protections already in place for the species (e.g., under the Federal listing and other Federal, State, and local regulations). The baseline, therefore, represents the costs incurred regardless of whether critical habitat is designated. The ‘‘with critical habitat’’ scenario describes the incremental impacts associated specifically with the designation of critical habitat for the species. The incremental conservation efforts and associated impacts are those not expected to occur absent the designation of critical habitat for the species. In other words, the incremental costs are those attributable solely to the designation of critical habitat above and beyond the baseline costs; these are the costs we consider in the final designation of critical habitat. The analysis looks retrospectively at baseline impacts incurred since the species was listed, and forecasts both baseline and incremental impacts likely to occur with the designation of critical habitat. The FEA also addresses how potential economic impacts are likely to be distributed, including an assessment of any local or regional impacts of habitat conservation and the potential effects of conservation activities on government agencies, private businesses, and E:\FR\FM\11SER3.SGM 11SER3 mstockstill on DSK4VPTVN1PROD with RULES3 56100 Federal Register / Vol. 78, No. 176 / Wednesday, September 11, 2013 / Rules and Regulations individuals. The FEA measures lost economic efficiency associated with residential and commercial development and public projects and activities, such as economic impacts on water management and transportation projects, Federal lands, small entities, and the energy industry. Decisionmakers can use this information to assess whether the effects of the designation might unduly burden a particular group or economic sector. Finally, the FEA considers those costs that may occur in the 20 years following the designation of critical habitat, which was determined to be the appropriate period for analysis because limited planning information was available for most activities to forecast activity levels for projects beyond a 20-year timeframe. The final economic analysis quantifies economic impacts of Texas golden gladecress and the Neches River rose-mallow conservation efforts associated with the following categories of activity: (1) Transportation (minor road widening and maintenance) and energy infrastructure projects, (2) land management, and (3) water management. The total present value impacts anticipated to result from the designation of all areas designated as Texas golden gladecress and Neches River rose-mallow critical habitat are approximately $32,000 for Neches River rose-mallow and $478,000 for Texas golden gladecress over 20 years, assuming a 7 percent discount rate. For the Neches River rose-mallow, all incremental costs are likely limited to the additional administrative cost of considering adverse modification during section 7 consultations. For the Texas golden gladecress, incremental costs are associated with consultations that consider adverse modification, as well as expected project modifications and project costs. Please refer to the final economic analysis for a comprehensive discussion of the potential impacts. Our economic analysis did not identify any disproportionate costs that are likely to result from the designation. Consequently, the Secretary is not exerting her discretion to exclude any areas from this designation of critical habitat for the Texas golden gladecress and the Neches River rose-mallow based on economic impacts. A copy of the final economic analysis with supporting documents may be obtained by contacting the Texas Coastal Ecological Services Field Office (see ADDRESSES) or by downloading from the Internet at http:// www.regulations.gov (Docket No. FWS– R2–ES–2013–0027) and also at http:// www.fws.gov/southwest/es/ VerDate Mar<15>2010 19:16 Sep 10, 2013 Jkt 229001 ElectronicLibrary/ElectronicLibrary_ Main.cfm. Exclusions Based on National Security Impacts Under section 4(b)(2) of the Act, we consider whether there are lands owned or managed by the Department of Defense where a national security impact might exist. In preparing this final rule, we have determined that the lands within the designation of critical habitat for the Texas golden gladecress and the Neches River rose-mallow are not owned or managed by the Department of Defense or Department of Homeland Security, and, therefore, we anticipate no impact on national security. Consequently, the Secretary is not exerting her discretion to exclude any areas from this final designation based on impacts on national security. Exclusions Based on Other Relevant Impacts Under section 4(b)(2) of the Act, we consider any other relevant impacts, in addition to economic impacts and impacts on national security. We consider a number of factors, including whether the landowners have developed any HCPs or other management plans for the area, or whether there are conservation partnerships that would be encouraged by designation of, or exclusion from, critical habitat. In addition, we look at any tribal issues, and consider the government-togovernment 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 Texas golden gladecress or the Neches River rose-mallow, and the final designation does not include any tribal lands or trust resources. We anticipate no impact on tribal lands, partnerships, or HCPs from this critical habitat designation. Accordingly, the Secretary is not exercising her discretion to exclude any areas from this final designation based on other relevant impacts. Required Determinations Regulatory Planning and Review (Executive Orders 12866 and 13563) Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) will review all significant rules. The Office of Information and Regulatory Affairs has determined that this rule is not significant. Executive Order 13563 reaffirms the principles of E.O. 12866, while calling PO 00000 Frm 00030 Fmt 4701 Sfmt 4700 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 (SBREFA) of 1996 (5 U.S.C. 801 et seq.), whenever an agency must publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effects of the rule on small entities (small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of the agency certifies the rule will not have a significant economic impact on a substantial number of small entities. The SBREFA amended the RFA to require Federal agencies to provide a 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. In this final rule, we are certifying that the critical habitat designation for Texas golden gladecress or the Neches River rose-mallow will not have a significant economic impact on a substantial number of small entities. The following discussion explains our rationale. According to the Small Business Administration, small entities include small organizations, such as independent nonprofit organizations; small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents; as well as small businesses. Small businesses include manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy E:\FR\FM\11SER3.SGM 11SER3 mstockstill on DSK4VPTVN1PROD with RULES3 Federal Register / Vol. 78, No. 176 / Wednesday, September 11, 2013 / Rules and Regulations construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and agricultural businesses with annual sales less than $750,000. To determine if potential economic impacts on these small entities are significant, we consider the types of activities that might trigger regulatory impacts under this rule, as well as the types of project modifications that may result. In general, the term ‘‘significant economic impact’’ is meant to apply to a typical small business firm’s business operations. To determine if the rule could significantly affect a substantial number of small entities, we consider the number of small entities affected within particular types of economic activities. We apply the ‘‘substantial number’’ test individually to each industry to determine if certification is appropriate. However, the SBREFA does not explicitly define ‘‘substantial number’’ or ‘‘significant economic impact.’’ Consequently, to assess whether a ‘‘substantial number’’ of small entities is affected by this designation, this analysis considers the relative number of small entities likely to be impacted in an area. In some circumstances, especially with critical habitat designations of limited extent, we may aggregate across all industries and consider whether the total number of small entities affected is substantial. In estimating the number of small entities potentially affected, we also consider whether their activities have any Federal involvement. Designation of critical habitat only affects activities authorized, funded, or carried out by Federal agencies. Some kinds of activities are unlikely to have any Federal involvement and so will not be affected by critical habitat designation. In areas where the species is present, Federal agencies already are required to consult with us under section 7 of the Act on activities they authorize, fund, or carry out that may affect the Texas golden gladecress or the Neches River rose-mallow. Federal agencies also must consult with us if their activities may affect critical habitat. Designation of critical habitat, therefore, could result in an additional economic impact on small entities due to the requirement to reinitiate consultation for ongoing Federal activities (see ‘‘Application of the ‘Adverse Modification Standard’ ’’ section). Importantly, the incremental impacts of a rule must be both significant and substantial to prevent certification of the rule under the RFA and to require the VerDate Mar<15>2010 19:16 Sep 10, 2013 Jkt 229001 preparation of an initial regulatory flexibility analysis. If a substantial number of small entities are affected by the critical habitat designation, but the per-entity economic impact is not significant, the Service may certify. Likewise, if the per-entity economic impact is likely to be significant, but the number of affected entities is not substantial, the Service may also certify. The Service’s current understanding of recent case law is that Federal agencies are only required to evaluate the potential impacts of rulemaking on those entities directly regulated by the rulemaking; therefore, they are not required to evaluate the potential impacts to those entities not directly regulated. The designation of critical habitat for an endangered or threatened species only has a regulatory effect where a Federal action agency is involved in a particular action that may affect the designated critical habitat. Under these circumstances, only the Federal action agency is directly regulated by the designation, and, therefore, consistent with the Service’s current interpretation of RFA and recent case law, the Service may limit its evaluation of the potential impacts to those identified for Federal action agencies. Under this interpretation, there is no requirement under the RFA to evaluate the potential impacts to entities not directly regulated, such as small businesses. However, Executive Orders 12866 and 13563 direct Federal agencies to assess costs and benefits of available regulatory alternatives in quantitative (to the extent feasible) and qualitative terms. Consequently, it is the current practice of the Service to assess to the extent practicable these potential impacts if sufficient data are available, whether or not this analysis is believed by the Service to be strictly required by the RFA. In other words, while the effects analysis required under the RFA is limited to entities directly regulated by the rulemaking, the effects analysis under the Act, consistent with the EO regulatory analysis requirements, can take into consideration impacts to both directly and indirectly impacted entities, where practicable and reasonable. In conclusion, we believe that, based on our interpretation of directly regulated entities under the RFA and relevant case law, this designation of critical habitat will only directly regulate Federal agencies, which are not by definition small business entities. And as such, we certify that, if promulgated, this designation of critical habitat would not have a significant economic impact on a substantial number of small business entities. PO 00000 Frm 00031 Fmt 4701 Sfmt 4700 56101 Therefore, a regulatory flexibility analysis is not required. However, though not necessarily required by the RFA, in our final economic analysis for this rule we considered and evaluated the potential effects to third parties that may be involved with consultations with Federal action agencies related to this action. Designation of critical habitat only affects activities authorized, funded, or carried out by Federal agencies. Some kinds of activities are unlikely to have any Federal involvement and so will not be affected by critical habitat designation. In areas where the species is present, Federal agencies already are required to consult with us under section 7 of the Act on activities they authorize, fund, or carry out that may affect the Texas golden gladecress or the Neches River rose-mallow. Federal agencies also must consult with us if their activities may affect critical habitat. Designation of critical habitat, therefore, could result in an additional economic impact on small entities due to the requirement to reinitiate consultation for ongoing Federal activities (see Application of the ‘‘Adverse Modification Standard’’ section). In our final economic analysis of the critical habitat designation, we evaluated the potential economic effects on small business entities resulting from conservation actions related to the listing of the Texas golden gladecress or the Neches River rose-mallow and the designation of critical habitat. The analysis is based on the estimated impacts associated with the rulemaking as described in Chapters 4 through 5 and Appendix A of the analysis and evaluates the potential for economic impacts related to: (1) Routine transportation projects, utility related activities, and oil and gas development, including interstate natural gas pipelines; (2) land management; and (3) water management. To determine if the designation of critical habitat for the Texas golden gladecress or the Neches River rosemallow would affect a substantial number of small entities, we considered the number of small entities affected within the categories of economic activities listed above. In order to determine whether it was appropriate for our agency to certify that this final rule would not have a significant economic impact on a substantial number of small entities, we considered each industry or category individually. In estimating the numbers of small entities potentially affected, we also considered whether their activities have any Federal involvement. Critical E:\FR\FM\11SER3.SGM 11SER3 mstockstill on DSK4VPTVN1PROD with RULES3 56102 Federal Register / Vol. 78, No. 176 / Wednesday, September 11, 2013 / Rules and Regulations habitat designation will not affect activities that do not have any Federal involvement; designation of critical habitat affects only activities conducted, funded, permitted, or authorized by Federal agencies. In areas where the Texas golden gladecress or the Neches River rose-mallow is present, Federal agencies already are required to consult with us under section 7 of the Act on activities they fund, permit, or implement that may affect the species. Critical habitat designation means that consultations to avoid the destruction or adverse modification of critical habitat will be incorporated into the existing consultation process. To ensure broad consideration of impacts on small entities, the Service’s economic analysis assessed potential economic effects on small entities resulting from implementation of conservation actions related to the designation of critical habitat for the Texas golden gladecress and the Neches River rose-mallow. For the Neches River rose-mallow, no incremental conservation measures to avoid adverse modification of critical habitat over and above those recommended to avoid jeopardy to the species were foreseen, and as such the economic analysis forecast was for few incremental economic impacts as a result of the designation of critical habitat for this species. Incremental impacts forecast were solely related to administrative costs for adverse modification analyses in section 7 consultations. The final economic analysis projected that 16 such consultations would occur. The Service and the Federal action agencies (U.S. Department of Transportation, U.S. Forest Service, Rural Utilities Services and the U.S. Army Corps of Engineers) are not small entities. The TXDOT, the third party participant in four of these consultations, is not a small entity. For ten of these consultations, the third party participant is an electric cooperative. Electric cooperatives may be considered independently owned and operated establishments that are not dominant in their field, thus falling under protection of the RFA. As calculated in this analysis, however, the costs to these entities are de minimis and would not be expected to have significant impact. For the Texas golden gladecress, the incremental costs of this designation included the administrative costs of considering adverse modification during section 7 consultations, the costs of any recommended project modifications, and the costs of new land management projects occurring as a result of the critical habitat designation. Approximately 23 section 7 VerDate Mar<15>2010 19:16 Sep 10, 2013 Jkt 229001 consultations were projected for this species; three formal and 20 informal, over the next 20 years. As is the case with the Neches River rose-mallow, the Service, Rural Utilities Services, U.S. Department of Transportation, and TXDOT are not small entities. For five of the consultations, two electric cooperatives serve as third party participants. As concluded above for the Neches River rose-mallow, the costs anticipated to be incurred by these entities are de minimis (less than $1,000 annually) and would not be projected to result in significant impacts. We assumed that these consultations would have an equal probability of occurring at any time during the 20-year timeframe and considered these estimates to be conservative because we assumed that all projects could occur independently; that is, we assumed separate consultations for each project. Based on the consultation history, most consultations are unlikely to involve a third party. Electric cooperatives may be considered independently owned and operated establishments that are not dominant in their field, thus falling under protection of the RFA. As calculated in this analysis, however, the costs to these entities are de minimis and would not be expected to have significant impact. In conclusion, while two small electric cooperatives are anticipated to incur costs as a result of the designation of critical habitat for Texas golden gladecress and Neches River rose-mallow, the costs are not expected to result in significant impacts to these entities. Consequently, no small entities are anticipated to incur costs as a result of the designation of critical habitat for Texas golden gladecress and Neches River rose-mallow. In summary, we considered whether this designation would result in a significant economic effect on a substantial number of small entities. Based on the above reasoning and currently available information, we concluded that this rule would not result in a significant economic impact on a substantial number of small entities. Therefore, we are certifying that the designation of critical habitat for Texas golden gladecress or the Neches River rose-mallow 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 PO 00000 Frm 00032 Fmt 4701 Sfmt 4700 to prepare Statements of Energy Effects when undertaking certain actions. Office of Management and Budget 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 Texas golden gladecress or the Neches River rosemallow conservation activities within critical habitat are not expected. As such, the designation of critical habitat is not expected to significantly affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action, and no Statement of Energy Effects is required. Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.) In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.), we make the following findings: (1) This rule will not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon State, local, or tribal governments, or the private sector, and includes both ‘‘Federal intergovernmental mandates’’ and ‘‘Federal private sector mandates.’’ These terms are defined in 2 U.S.C. 658(5)–(7). ‘‘Federal intergovernmental mandate’’ includes a regulation that ‘‘would impose an enforceable duty upon State, local, or tribal governments’’ with two exceptions. It excludes ‘‘a condition of Federal assistance.’’ It also excludes ‘‘a duty arising from participation in a voluntary Federal program,’’ unless the regulation ‘‘relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and tribal governments under entitlement authority,’’ if the provision would ‘‘increase the stringency of conditions of assistance’’ or ‘‘place caps upon, or otherwise decrease, the Federal Government’s responsibility to provide funding,’’ and the State, local, or tribal governments ‘‘lack authority’’ to adjust accordingly. At the time of enactment, these entitlement programs were: Medicaid; Aid to Families with Dependent Children work programs; Child Nutrition; Food Stamps; Social Services Block Grants; Vocational Rehabilitation State Grants; Foster Care, Adoption Assistance, and Independent Living; Family Support Welfare Services; and Child Support E:\FR\FM\11SER3.SGM 11SER3 mstockstill on DSK4VPTVN1PROD with RULES3 Federal Register / Vol. 78, No. 176 / Wednesday, September 11, 2013 / Rules and Regulations 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 nonFederal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Furthermore, to the extent that non-Federal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply, nor would critical habitat shift the costs of the large entitlement programs listed above onto State governments. (2) We do not believe that this rule will significantly or uniquely affect small governments. As stated in the proposed rule, 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. Therefore, this rule does not place an enforceable duty upon State, local, or Tribal governments, or the private sector. The majority of lands designated for critical habitat are owned by private landowners, although the Federal Government and the State of Texas own small portions. None of these government entities fit the definition of small governmental jurisdiction. Therefore, a Small Government Agency Plan is not required. VerDate Mar<15>2010 19:16 Sep 10, 2013 Jkt 229001 Takings—Executive Order 12630 In accordance with Executive Order 12630 (Government Actions and Interference with Constitutionally Protected Private Property Rights), we have analyzed the potential takings implications of designating critical habitat for the Texas golden gladecress and the Neches River rose-mallow in a takings implications assessment. Executive Order 12630, ‘‘Governmental Actions and Interference with Constitutionally Protected Property Rights,’’ issued March 15, 1988, requires agencies to adhere to certain principals in rulemakings that have takings implications and provide certain information to Office of Management and Budget for any actions with identified takings implications. Section 2(a) of the Executive Order defines takings implications to include any ‘‘regulations that propose or implement licensing, permitting, or other requirements or limitations on private property use, or that require dedications or exactions from owners of private property.’’ Our economic analysis found that the incremental effects of the critical habitat designations are largely limited to additional administrative costs. Activities taking place on private property are not likely to be affected. The takings implications assessment concludes that this designation of critical habitat for the Texas golden gladecress and the Neches River rosemallow does not pose significant takings implications for lands within or affected by the designation. Federalism—Executive Order 13132 In accordance with Executive Order 13132 (Federalism), this final rule does not have significant Federalism effects. A federalism summary impact statement is not required. In keeping with Department of the Interior and Department of Commerce policy, we requested information from, and coordinated development of, this final critical habitat designation with appropriate State resource agencies in Texas. We received comments from TPWD, Governor’s Office, and TXDOT and have addressed them in the Summary of Comments and Recommendations section of the rule. 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 PO 00000 Frm 00033 Fmt 4701 Sfmt 4700 56103 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 to the conservation of the species are specifically identified. This information does not alter where and what federally sponsored activities may occur. However, it may assist these local governments in long-range planning (because these local governments no longer have to wait for case-by-case section 7 consultations to occur). Where State and local governments require approval or authorization from a Federal agency for actions that may affect critical habitat, consultation under section 7(a)(2) would be required. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Civil Justice Reform—Executive Order 12988 In accordance with Executive Order 12988 (Civil Justice Reform), the Office of the Solicitor has determined that the rule does not unduly burden the judicial system and that it meets the applicable standards set forth in sections 3(a) and 3(b)(2) of the Order. We are designating critical habitat in accordance with the provisions of the Act. To assist the public in understanding the habitat needs of the species, the rule identifies the elements of physical or biological features essential to the conservation of the Texas golden gladecress and Neches River rose-mallow. 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 any new collections of information that require approval by Office of Management and Budget under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). This rule will not impose recordkeeping or reporting requirements on State or local governments, individuals, businesses, or organizations. An agency E:\FR\FM\11SER3.SGM 11SER3 56104 Federal Register / Vol. 78, No. 176 / Wednesday, September 11, 2013 / Rules and Regulations may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid Office of Management and Budget control number. National Environmental Policy Act (42 U.S.C. 4321 et seq.) References Cited A complete list of references cited in this rulemaking is available on the Internet at http://www.regulations.gov at Docket No. FWS–R2–ES–2012–0064 and Docket No. FWS–R2–ES–2013–0027 and upon request from the Corpus Christi Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT). Authors The primary authors of this package are the staff members of the Corpus Christi Ecological Services Field Office. Government-to-Government Relationship With Tribes mstockstill on DSK4VPTVN1PROD with RULES3 It is our position that, outside the jurisdiction of the U.S. Court of Appeals for the Tenth Circuit, we do not need to prepare environmental analyses pursuant to the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.) in connection with designating critical habitat under the Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244). This position was upheld by the U.S. Court of Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)). PART 17—[AMENDED] 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 determined that there are no tribal lands occupied by the Texas golden gladecress and the Neches River rosemallow at the time of listing that contain the physical or biological features essential to conservation of the species, and no tribal lands unoccupied by the Texas golden gladecress and the Neches River rose-mallow that are essential for the conservation of the species. Therefore, we are not designating critical habitat for the Texas golden gladecress and the Neches River rose-mallow on tribal lands. VerDate Mar<15>2010 19:16 Sep 10, 2013 Jkt 229001 List of Subjects in 50 CFR Part 17 Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation. Regulation Promulgation Accordingly, we are amending part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below: 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. 2. In § 17.96, amend paragraph (a) by adding an entry for ‘‘Leavenworthia texana (Texas golden gladecress)’’ in alphabetical order under the family Brassicaceae and an entry for ‘‘Hibiscus dasycalyx (Neches River rose-mallow)’’ in alphabetical order under the family Malvaceae, to read as follows: ■ § 17.96 Critical habitat—plants. * * * * * (a) Flowering plants. * * * * * Family Brassicaceae: Leavenworthia texana (Texas golden gladecress) (1) Critical habitat units are depicted for San Augustine and Sabine Counties, Texas, on the maps below. (2) Within these areas, the primary constituent elements of the physical or biological features essential to the conservation of Leavenworthia texana consist of the three primary constituent elements identified for the species: (i) Exposed outcrops of the Weches Formation within Weches prairies. Within the outcrop sites, there must be bare, exposed bedrock on top-level surfaces or rocky ledges with small depressions where rainwater or seepage can collect. The openings should support Weches Glade native herbaceous plant communities. (ii) Thin layers of rocky, alkaline soils, underlain by glauconite clay PO 00000 Frm 00034 Fmt 4701 Sfmt 4700 (greenstone, ironstone, bluestone), that are found only on the Weches Formation. Appropriate soils are in the series classifications Nacogdoches clay loam, Trawick gravelly clay loam, or Bub clay loam, ranging in slope from 1– 15 percent. (iii) The outcrop ledges should occur within the glade such that Texas golden gladecress plants remain unshaded for a significant portion of the day, and trees should be far enough away from the outcrop(s) that leaves do not accumulate within the gladecress habitat. The habitat should be relatively clear of nonnative and native invasive plants, especially woody species, or with only a minimal level of invasion. (3) Critical habitat does not include manmade structures (such as buildings, bridges, aqueducts, runways, well pads, metering stations, roads and the filled areas immediately adjacent to pavement, and other paved areas) and the land on which they are located existing within the legal boundaries on October 11, 2013. (4) Critical habitat map units. Soil Survey Geographic Dataset (SSURGO) was used as a base map layer. The SSURGO is an updated digital version of the Natural Resources Conservation Service county soil surveys. The SSURGO uses recent digital orthophotos and fieldwork to update the original printed surveys. Data layers defining map units were created using the Texas golden gladecress’ restriction to the Weches Formation and its tight association with the three soil map units: Nacogdoches clay loam 1–5 percent slope, Trawick gravelly clay loam 5–15 percent slope, or Bub clay loam 2–5 percent slope. In San Augustine and Sabine Counties, these soil types are restricted to the Weches Formation. Locations of all known gladecress populations, as well as potential glade sites, were overlaid on the three afore-named soil mapping units from the San Augustine and Sabine County’s soils survey. Potential glade sites were identified using soil map units and a time series of aerial photographs that depicted changes in land cover. 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 http://www.fws.gov/southwest/ es/ElectronicLibrary/ ElectronicLibrary_Main.cfm, at http:// www.regulations.gov at Docket No. FWS–R2–ES–2013–0027, and at the field office responsible for this designation. You may obtain field office E:\FR\FM\11SER3.SGM 11SER3 Federal Register / Vol. 78, No. 176 / Wednesday, September 11, 2013 / Rules and Regulations VerDate Mar<15>2010 19:16 Sep 10, 2013 Jkt 229001 addresses of which are listed at 50 CFR 2.2. PO 00000 Frm 00035 Fmt 4701 Sfmt 4725 (5) Index map follows: BILLING CODE 4310–55–P E:\FR\FM\11SER3.SGM 11SER3 ER11SE13.014</GPH> mstockstill on DSK4VPTVN1PROD with RULES3 location information by contacting one of the Service regional offices, the 56105 56106 Federal Register / Vol. 78, No. 176 / Wednesday, September 11, 2013 / Rules and Regulations VerDate Mar<15>2010 19:16 Sep 10, 2013 Jkt 229001 PO 00000 Frm 00036 Fmt 4701 Sfmt 4725 E:\FR\FM\11SER3.SGM 11SER3 ER11SE13.015</GPH> mstockstill on DSK4VPTVN1PROD with RULES3 (6) Unit 1: Geneva Unit, Sabine County, Texas. Map of Unit 1 follows: Federal Register / Vol. 78, No. 176 / Wednesday, September 11, 2013 / Rules and Regulations 56107 VerDate Mar<15>2010 19:16 Sep 10, 2013 Jkt 229001 PO 00000 Frm 00037 Fmt 4701 Sfmt 4725 E:\FR\FM\11SER3.SGM 11SER3 ER11SE13.016</GPH> mstockstill on DSK4VPTVN1PROD with RULES3 (7) Unit 2: Chapel Hill, San Augustine County. Map of Unit 2 follows: 56108 Federal Register / Vol. 78, No. 176 / Wednesday, September 11, 2013 / Rules and Regulations (9) Unit 4: Northwest Caney Creek Glades, San Augustine County, Texas. Map of Unit 4 is depicted in paragraph (8) of this entry. * * * * * Family Malvaceae: Hibiscus dasycalyx (Neches River rose-mallow) VerDate Mar<15>2010 19:16 Sep 10, 2013 Jkt 229001 (1) Critical habitat units are depicted for Cherokee, Harrison, Houston, Nacogdoches, and Trinity Counties, Texas, on the maps below. (2) Within these areas, the primary constituent element of the physical or biological features essential to the conservation of Hibiscus dasycalyx is PO 00000 Frm 00038 Fmt 4701 Sfmt 4700 intermittent or perennial wetlands within the Neches, Sabine, and Angelina River floodplains or Mud and Tantabogue Creek basins that contain: (i) Hydric alluvial soils and the potential for flowing water when found in depressional sloughs, oxbows, E:\FR\FM\11SER3.SGM 11SER3 ER11SE13.017</GPH> mstockstill on DSK4VPTVN1PROD with RULES3 (8) Unit 3: Southeast Caney Creek Glades, San Augustine County, Texas. Map of Units 3 and 4 follows: Federal Register / Vol. 78, No. 176 / Wednesday, September 11, 2013 / Rules and Regulations VerDate Mar<15>2010 19:16 Sep 10, 2013 Jkt 229001 (4) Critical habitat map units. Data layers defining map units were created on a base of Strategic Mapping Program (StratMap) digital orthophoto quarterquadrangles (DOQQs), with layers for boundaries and roads. The Service’s National Wetlands Inventory maps for the appropriate USGS quads were also downloaded as layers. Critical habitat units were mapped using Geographic Coordinate System (GCS), North American, 1983. The maps in this entry, as modified by any accompanying regulatory text, establish the boundaries of the critical habitat designation. The PO 00000 Frm 00039 Fmt 4701 Sfmt 4725 coordinates or plot points or both on which each map is based are available to the public at the Service’s internet site, at http://www.fws.gov/southwest/ es/ElectronicLibrary/ElectronicLibrary_ Main.cfm, at http://www.regulations.gov at Docket No. FWS–R2–ES–2013–0027, 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: E:\FR\FM\11SER3.SGM 11SER3 ER11SE13.018</GPH> mstockstill on DSK4VPTVN1PROD with RULES3 terraces, side channels, or sand bars; and (ii) Native woody or associated herbaceous vegetation, largely with an open canopy providing partial to full sun exposure with few to no nonnative species. (3) Critical habitat does not include manmade structures (such as buildings; bridges; aqueducts; runways; roads; well pads; metering stations; other paved areas; unpaved roads; and the filled areas immediately adjacent to pavement) and the land on which they are located existing within the legal boundaries on October 11, 2013. 56109 56110 Federal Register / Vol. 78, No. 176 / Wednesday, September 11, 2013 / Rules and Regulations VerDate Mar<15>2010 19:16 Sep 10, 2013 Jkt 229001 PO 00000 Frm 00040 Fmt 4701 Sfmt 4725 E:\FR\FM\11SER3.SGM 11SER3 ER11SE13.019</GPH> mstockstill on DSK4VPTVN1PROD with RULES3 (6) Unit 1: State Highway 94 right-ofway, Trinity County, Texas. Map of Unit 1 follows: Federal Register / Vol. 78, No. 176 / Wednesday, September 11, 2013 / Rules and Regulations 56111 VerDate Mar<15>2010 19:16 Sep 10, 2013 Jkt 229001 PO 00000 Frm 00041 Fmt 4701 Sfmt 4725 E:\FR\FM\11SER3.SGM 11SER3 ER11SE13.020</GPH> mstockstill on DSK4VPTVN1PROD with RULES3 (7) Unit 2: Harrison site, Harrison County, Texas. Map of Unit 2 follows: 56112 Federal Register / Vol. 78, No. 176 / Wednesday, September 11, 2013 / Rules and Regulations VerDate Mar<15>2010 19:16 Sep 10, 2013 Jkt 229001 PO 00000 Frm 00042 Fmt 4701 Sfmt 4725 E:\FR\FM\11SER3.SGM 11SER3 ER11SE13.021</GPH> mstockstill on DSK4VPTVN1PROD with RULES3 (8) Unit 3: Lovelady, Houston County, Texas. Map of Unit 3 follows: Federal Register / Vol. 78, No. 176 / Wednesday, September 11, 2013 / Rules and Regulations 56113 VerDate Mar<15>2010 19:16 Sep 10, 2013 Jkt 229001 PO 00000 Frm 00043 Fmt 4701 Sfmt 4725 E:\FR\FM\11SER3.SGM 11SER3 ER11SE13.022</GPH> mstockstill on DSK4VPTVN1PROD with RULES3 (9) Unit 4: State Highway 204 right-ofway, Cherokee County, Texas. Map of Unit 4 follows: 56114 Federal Register / Vol. 78, No. 176 / Wednesday, September 11, 2013 / Rules and Regulations VerDate Mar<15>2010 19:16 Sep 10, 2013 Jkt 229001 PO 00000 Frm 00044 Fmt 4701 Sfmt 4725 E:\FR\FM\11SER3.SGM 11SER3 ER11SE13.023</GPH> mstockstill on DSK4VPTVN1PROD with RULES3 (10) Unit 5: Davy Crockett National Forest, Compartment 55, Houston County, Texas. Map of Unit 5 follows: Federal Register / Vol. 78, No. 176 / Wednesday, September 11, 2013 / Rules and Regulations 56115 VerDate Mar<15>2010 19:16 Sep 10, 2013 Jkt 229001 PO 00000 Frm 00045 Fmt 4701 Sfmt 4725 E:\FR\FM\11SER3.SGM 11SER3 ER11SE13.024</GPH> mstockstill on DSK4VPTVN1PROD with RULES3 (11) Unit 6: Davy Crockett National Forest, Compartment 11, Houston County, Texas. Map of Unit 6 follows: 56116 Federal Register / Vol. 78, No. 176 / Wednesday, September 11, 2013 / Rules and Regulations VerDate Mar<15>2010 19:16 Sep 10, 2013 Jkt 229001 PO 00000 Frm 00046 Fmt 4701 Sfmt 4725 E:\FR\FM\11SER3.SGM 11SER3 ER11SE13.025</GPH> mstockstill on DSK4VPTVN1PROD with RULES3 (12) Unit 7: Davy Crockett National Forest, Compartment 20, Houston County, Texas. Map of Unit 7 follows: Federal Register / Vol. 78, No. 176 / Wednesday, September 11, 2013 / Rules and Regulations 56117 VerDate Mar<15>2010 19:16 Sep 10, 2013 Jkt 229001 PO 00000 Frm 00047 Fmt 4701 Sfmt 4725 E:\FR\FM\11SER3.SGM 11SER3 ER11SE13.026</GPH> mstockstill on DSK4VPTVN1PROD with RULES3 (13) Unit 8: Davy Crockett National Forest, Compartment 16, Houston County, Texas. Map of Unit 8 follows: 56118 Federal Register / Vol. 78, No. 176 / Wednesday, September 11, 2013 / Rules and Regulations VerDate Mar<15>2010 19:16 Sep 10, 2013 Jkt 229001 PO 00000 Frm 00048 Fmt 4701 Sfmt 4725 E:\FR\FM\11SER3.SGM 11SER3 ER11SE13.027</GPH> mstockstill on DSK4VPTVN1PROD with RULES3 (14) Unit 9: Champion site, Trinity County, Texas. Map of Unit 9 follows: Federal Register / Vol. 78, No. 176 / Wednesday, September 11, 2013 / Rules and Regulations 56119 VerDate Mar<15>2010 19:16 Sep 10, 2013 Jkt 229001 PO 00000 Frm 00049 Fmt 4701 Sfmt 4725 E:\FR\FM\11SER3.SGM 11SER3 ER11SE13.028</GPH> mstockstill on DSK4VPTVN1PROD with RULES3 (15) Unit 10: Mill Creek Gardens, Nacogdoches County, Texas. Map of Unit 10 follows: 56120 Federal Register / Vol. 78, No. 176 / Wednesday, September 11, 2013 / Rules and Regulations (16) Unit 11: Camp Olympia, Trinity County, Texas. Map of Unit 11 follows: * * * Dated: September 5, 2013. Michael Bean, Acting Principal Deputy Assistant Secretary for Fish and Wildlife and Parks. * [FR Doc. 2013–22083 Filed 9–10–13; 8:45 am] BILLING CODE 4310–55–C VerDate Mar<15>2010 19:16 Sep 10, 2013 Jkt 229001 PO 00000 Frm 00050 Fmt 4701 Sfmt 9990 E:\FR\FM\11SER3.SGM 11SER3 ER11SE13.029</GPH> mstockstill on DSK4VPTVN1PROD with RULES3 *

Agencies

[Federal Register Volume 78, Number 176 (Wednesday, September 11, 2013)]
[Rules and Regulations]
[Pages 56071-56120]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-22083]



[[Page 56071]]

Vol. 78

Wednesday,

No. 176

September 11, 2013

Part VI





Department of the Interior





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Fish and Wildlife Service





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50 CFR Part 17





Endangered and Threatened Wildlife and Plants; Designation of Critical 
Habitat for Texas Golden Gladecress and Neches River Rose-Mallow; Final 
Rule

Federal Register / Vol. 78 , No. 176 / Wednesday, September 11, 2013 
/ Rules and Regulations

[[Page 56072]]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R2-ES-2013-0027, 4500030113]
RIN 1018-AZ49


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for Texas Golden Gladecress and Neches River Rose-
Mallow

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate 
critical habitat for two Texas plants, Leavenworthia texana (Texas 
golden gladecress) and Hibiscus dasycalyx (Neches River rose-mallow), 
under the Endangered Species Act of 1973. Critical habitat for the 
Texas golden gladecress is located in Sabine and San Augustine 
Counties, Texas, and for the Neches River rose-mallow in Nacogdoches, 
Houston, Trinity, Cherokee, and Harrison Counties, Texas. The effect of 
this regulation is to designate critical habitat for these two East 
Texas plants under the Endangered Species Act.

DATES: This rule becomes effective on October 11, 2013.

ADDRESSES: This final rule and other supplementary information are 
available on the Internet at http://www.regulations.gov (Docket No. 
FWS-R2-ES-2013-0027) and also at http://www.fws.gov/southwest/es/ElectronicLibrary/ElectronicLibrary_Main.cfm. These documents are also 
available for public inspection, by appointment, during normal business 
hours, at the U.S. Fish and Wildlife Service, Texas Coastal Ecological 
Services Field Office, 6300 Ocean Drive, USFWS Unit 5837, Corpus 
Christi, TX 78412-5837; telephone 361-994-9005; facsimile 361-994-8262.
    The coordinates or plot points or both from which the critical 
habitat maps are generated are included in the administrative record 
for this rulemaking and are available at http://www.fws.gov/southwest/es/ElectronicLibrary/ElectronicLibrary_Main.cfm, at http://www.regulations.gov at Docket No. FWS-R2-ES-2013-0027, and at the Texas 
Coastal Ecological Services Field Office, Corpus Christi (see FOR 
FURTHER INFORMATION CONTACT).

FOR FURTHER INFORMATION CONTACT: Edith Erfling, Field Supervisor, U.S. 
Fish and Wildlife Service, Texas Coastal Ecological Services Field 
Office (see ADDRESSES). Persons who use a telecommunications device for 
the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 
800-877-8339.

SUPPLEMENTARY INFORMATION: 

Executive Summary

    Why we need to publish a rule. On September 11, 2012 (77 FR 55968), 
we published a proposed rule to designate critical habitat for 
Leavenworthia texana (Texas golden gladecress) and Hibiscus dasycalyx 
(Neches River rose-mallow). In this rule, we are finalizing our 
designation for critical habitat under the Endangered Species Act 
(Act). The Act requires that a final rule be published in order to 
designate critical habitat for endangered and threatened wildlife to 
provide protections under the Act.
    Elsewhere in today's Federal Register, we are finalizing 
determination of listing Leavenworthia texana (Texas golden gladecress) 
as an endangered species and Hibiscus dasycalyx (Neches River rose-
mallow) as a threatened species under the Act. The final listing 
determination rule and supporting documents will publish under Docket 
No. FWS-R2-ES-2012-0064, and can also be found at the above locations.
    The critical habitat areas we are designating in this rule 
constitute our current best assessment of the areas that meet the 
definition of critical habitat for the Texas golden gladecress and the 
Neches River rose-mallow. Here we are designating:
     Approximately 1,353 ac (547 ha) of critical habitat for 
the Texas golden gladecress in Sabine and San Augustine Counties; and
     Approximately 166.5 ac (67.4 ha) of critical habitat for 
the Neches River rose-mallow in Cherokee, Houston, Trinity, Harrison, 
and Nacogdoches Counties, Texas.
    This rule consists of: A final rule for designation of critical 
habitat for the Texas golden gladecress and the Neches River rose-
mallow. The Texas golden gladecress and the Neches River rose-mallow 
have been listed under the Act. This rule designates critical habitat 
necessary for the conservation of the species.
    We have prepared an economic analysis of the designation of 
critical habitat. In order to consider economic impacts, we have 
prepared an analysis of the economic impacts of the critical habitat 
designations and related factors. We announced the availability of the 
draft economic analysis (DEA) in the Federal Register on April 16, 2013 
(78 FR 22506), allowing the public to provide comments on our analysis. 
We have incorporated the comments and have completed the final economic 
analysis (FEA) concurrently with this final determination.
    Peer review and public comment. We sought comments from independent 
specialists to ensure that our designation is based on scientifically 
sound data and analyses. We obtained opinions from four knowledgeable 
individuals with scientific expertise to review our technical 
assumptions, analysis, and whether or not we had used the best 
available information. These peer reviewers generally concurred with 
our methods and conclusions and provided additional information, 
clarifications, and suggestions to improve this final rule. Information 
we received from peer review is incorporated in this final revised 
designation. We also considered all comments and information received 
from the public during the comment period.

Previous Federal Actions

    All previous Federal actions are described in the final rule to 
list the Texas golden gladecress as an endangered species and Neches 
River rose-mallow as a threatened species under the Act published 
elsewhere in today's Federal Register.

Background

    This document contains final rules to designate critical habitat 
for the Texas golden gladecress and Neches River rose-mallow. The 
document is structured to address the taxa separately under each of the 
sectional headings that follow.

Summary of Comments and Recommendations

    We requested written comments from the public on the proposed 
designation of critical habitat for the Texas golden gladecress and 
Neches River rose-mallow during two comment periods. The first comment 
period associated with the publication of the proposed rule (77 FR 
55968) opened on September 11, 2012, and closed on November 13, 2012. 
We also requested comments on the proposed critical habitat designation 
and associated draft economic analysis during a comment period that 
opened April 16, 2013, and closed on May 16, 2013 (78 FR 22506). We 
received requests for a public hearing, and one was held on May 1, 
2013. We also contacted appropriate Federal, State, and local agencies; 
scientific organizations; and other interested parties and invited them 
to comment on the proposed rule and draft economic analysis during 
these comment periods.

[[Page 56073]]

    During the first comment period, we received 15 comment letters 
directly addressing the proposed critical habitat designation. During 
the second comment period, we received 22 comment letters addressing 
the proposed critical habitat designation or the draft economic 
analysis. During the May 1, 2013, public hearing, five individuals or 
organizations made comments on the designation of critical habitat for 
the Texas golden gladecress and Neches River rose-mallow. All 
substantive information provided during comment periods has either been 
incorporated directly into this final determination or addressed below. 
Comments received were grouped by submitter's affiliation, whether peer 
reviewer, State (agencies or officials), or public, relating to the 
proposed critical habitat designation for Texas golden gladecress and 
Neches River rose-mallow. All are addressed in the following summary 
and incorporated into the final rule as appropriate.

Peer Review

    In accordance with our peer review policy published on July 1, 1994 
(59 FR 34270), we solicited expert opinions from six knowledgeable 
individuals with scientific expertise that included familiarity with 
the species, the geographic region in which the species occurs, and 
conservation biology principles and characteristics of their habitats, 
including the unique geology; as well as land uses common to the region 
that may bear on the threats to both species. We received responses 
from four of the peer reviewers.
    We reviewed all comments received from the peer reviewers for 
substantive issues and new information regarding listing of the Texas 
golden gladecress and Neches River rose-mallow. The peer reviewers 
generally agreed with portions of our assessment, including the threats 
analysis, and most of our conclusions, although they pointed out areas 
where additional research would refine our understanding of the two 
species' habitat requirements and range. Two peer reviewers agreed with 
our conclusions that habitat loss and degradation associated with human 
activities (including energy exploration and production, quarrying, and 
pine tree plantings in close proximity to glades) as well as the 
overgrowth of both species' habitats by invading woody and weedy native 
and nonnative plants, were adversely affecting the Texas golden 
gladecress and the Neches River rose-mallow. One peer reviewer also 
agreed that the Neches River rose-mallow has insufficient regulatory 
protections. One peer reviewer believed that critical habitat 
designation for the Texas golden gladecress would be an improvement to 
conservation efforts for this species and an associated endangered 
plant. The peer reviewers pointed out additional information, 
clarifications, and suggestions for future research that would inform 
future surveys to refine the geographic range, and help with management 
and recovery efforts. Peer reviewer comments are addressed in the 
following summary and incorporated into the final rule as appropriate.

Peer Reviewer Comments

    (1) Comment: Additional outreach to private landowners with 
potential critical habitat is recommended, prior to the determination. 
It is essential to make each landowner aware of the issues, regardless 
of their interest.
    Our response: With regard to landowners, prior to publication of 
the proposed rule, in September 2011, we sent letters to 107 entities, 
including Federal and State elected officials; representatives of Texas 
Parks and Wildlife Department (TPWD), Texas Commission on Environmental 
Quality, Texas Department of Transportation (TXDOT), Texas General Land 
Office, Texas Forest Service, Texas Department of Agriculture, Natural 
Resources Conservation Service (NRCS), U.S. Army Corps of Engineers, 
U.S. Forest Service, universities, conservation organizations and other 
non-governmental organizations; and representatives of timber and 
forestry industries and forestry services, informing them of our need 
to gather and analyze the best available information for our use in 
developing a proposed rule to list and designate critical habitat for 
both species. From that point on, we added landowner contacts that were 
given to us to our notification list. For some sites, land ownership 
was clarified in file records or through communications with 
representatives of other organizations.
    Furthermore, for the Texas golden gladecress, we partnered with 
TPWD in March 2012 to host a Weches Glades workshop and field tour in 
San Augustine, to which we invited four private landowners (two with 
Texas golden gladecress and two with Lesquerella pallida (white 
bladderpod), an associated endangered plant, populations on their 
property). As preparation for the field tour, permission to access 
sites was obtained from these four landowners. The purpose of the 
workshop and field tour was to acquaint landowners, and agency 
representatives that work with private landowners, with the glade and 
outcrop habitats, rare plants, and the Act listing process and 
implications, particularly as it applies to plants. In addition to 
these landowners, 24 other individuals were invited to the workshop, 
including two San Augustine County commissioners, the Mayor of San 
Augustine, the Chairman of the local Soil and Water Conservation 
District, NRCS, Texas Forest Service, a private forestry services 
company, and a mining company. Of the 28 invitees, 17 attended the 
workshop and field tour.
    As additional outreach to Neches River rose-mallow landowners, land 
managers, and agencies that work with them, TPWD organized a workshop 
and two-day field trip in August, 2012. The workshop also furnished an 
opportunity to explain the listing process and its applicability for 
plants. A pre-field trip workshop allowed information to be presented 
to 45 attendees that included the Texas Land Conservancy (owner of the 
Neches River rose-mallow Lovelady site) and TXDOT (owner of the right-
of-way (ROW) sites along state highway (SH) 204 and 94).
    On September 11, 2012, we sent letters to 164 entities notifying 
them of the proposed rule publication in the Federal Register, 
including Federal and State elected officials; local elected officials 
(including county judges within the range of the species); 
representatives of TPWD, Texas Commission on Environmental Quality, 
TXDOT, Texas General Land Office, Texas Forest Service, Texas 
Department of Agriculture, NRCS, U.S. Army Corps of Engineers, U.S. 
Forest Service, universities, conservation organizations and other non-
governmental organizations; and representatives of timber and forestry 
industries and forestry services.
    On April 16, 2013, the day of Federal Register publication of the 
notice of availability of the draft economic analysis and reopening of 
the proposal to list the plants and designate critical habitat, we 
emailed letters to 157 people including representatives of agriculture, 
timber, oil and gas, and mining industries; local elected officials 
from the counties in question; agency staff that work with landowners, 
and those landowners for whom we had email addresses. Within 2 days of 
publication in the Federal Register, we also sent 208 letters by mail 
to state and local elected officials (including all county judges and 
commissioners); industry representatives; academics; conservation 
organizations; State, Federal, and local agencies: And all individual 
landowners who had been identified through the past 2 years since

[[Page 56074]]

our initial information solicitation in September 2011.
    (2) Comment: Two peer reviewers commented on the critical habitat 
maps as they appear in the proposed rule. Specifically for the Neches 
River rose-mallow's critical habitat unit 1 it seems that the map does 
not depict critical habitat within the State highway right-of-way (SH 
ROW); however, Table 8 specifically states that 1.1 ac (0.45 ha) of 
critical habitat is present within the SH ROW. There might be confusion 
between landowners and other interested parties about whether or not 
their property is within critical habitat because of the map resolution 
and detail.
    Our Response: In the case of the rose-mallow's critical habitat 
unit 1, the designated critical habitat includes both SH ROW and 
private land. For both species, the intended use of the critical 
habitat unit maps is to identify the general areas where the Texas 
golden gladecress' or the Neches River rose-mallow's critical habitat 
is designated. Although we have tried to include landmarks, such as 
labeled roads, to help readers find the location of the critical 
habitat units, the scale of the maps is such that the level of detail 
and resolution may not help in identifying individual land ownership. 
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 http://www.fws.gov/southwest/es/ElectronicLibrary/ElectronicLibrary_Main.cfm, 
http://www.regulations.gov at Docket No. FWS-R2-ES-2013-0027 and at the 
field office responsible for this designation.
    (3) Comment: One peer reviewer thought that critical habitat 
designation for the Texas golden gladecress was a good idea ``if it 
allows the exclusion of some Weches outcrops that are unsuitable . . . 
and is done on a fine scale . . . of blocks, say one mile in 
diameter''. This reviewer believed this approach would ensure that 
economic activity based on mining is not adversely impacted. He 
indicated his opinion that Weches mining could be done in such a way as 
to allow both activities to continue.
    Our response: Although it is unclear if the peer reviewer's comment 
about the size of critical habitat blocks (one mile in diameter) has 
any scientific basis, we are interpreting him to mean that relatively 
small areas of critical habitat could be included or excluded from 
designation to allow for quarrying outside of the designated critical 
habitat. We are required to designate critical habitat for geographical 
areas that are occupied by the species at the time of listing, which 
contain the physical or biological features essential to the 
conservation of the species and which may require special management 
considerations or protection. Based on this requirement the Service 
designated critical habitat for the species based on the presence of 
the features essential to its conservation and its tight association 
with the Weches Formation and associated soils (Singhurst 2011a, pers. 
comm.). To determine the boundaries of critical habitat units we used a 
geographic information system (GIS) to overlay the appropriate soil 
maps over the occupied areas. The perimeter of Texas golden gladecress 
critical habitat was mapped by following the borders of the appropriate 
U.S. Department of Agriculture soil layers (see ``Mapping Texas Golden 
Gladecress Critical Habitat'' section of this final rule).
    Section 7 of the Act requires Federal agencies, in consultation 
with the Service, to ensure that any action authorized, funded, or 
carried out by a Federal agency (thereby constituting a Federal nexus) 
is not likely to result in the destruction or adverse modification of 
critical habitat. If there is not a Federal nexus for a given action, 
then critical habitat designation, including on private lands, does not 
restrict any actions that destroy or adversely modify critical habitat. 
We have determined that quarrying of glauconite in Texas does not 
require Federal permits or have any other Federal nexus, therefore 
section 7 consultation is not expected for quarrying activities. If a 
person wishes to develop private land, with no Federal nexus, and in 
accordance with State law, then destroying or adversely modifying 
critical habitat does not violate the Act. The Service can and will 
provide technical assistance to mining (quarrying) companies to 
minimize and avoid impacts to the Texas golden gladecress critical 
habitat if such assistance is requested.
    (4) Comment: In the case of the Neches River rose-mallow, a peer 
reviewer agreed that there is not a mechanism for protection other than 
perhaps existing wetland regulations under the U.S. Army Corps of 
Engineers.
    Our Response: Section 7 consultation for U.S. Army Corps of 
Engineers-issued permits is one avenue regulating impacts to the Neches 
River rose-mallow. Additionally, four of the 11 extant populations of 
Neches River rose-mallow are found on the Davy Crockett NF where the 
U.S. Forest Service considers the Neches River rose-mallow as a 
Regional Forester's Sensitive Species and its habitat is managed under 
A Revised Land and Resource Management Plan for National Forests and 
Grasslands in Texas. This provides some level of species and habitat 
protection; however, their plan is not specific. Section 7(a)(2) of the 
Act requires Federal agencies to ensure that activities they authorize, 
fund, or carry out (i.e., projects with a Federal nexus) are not likely 
to jeopardize the continued existence of the species or destroy or 
adversely modify its critical habitat. If a person wishes to develop 
private land with no Federal nexus, in accordance with State law, then 
the potential destruction, damage, or movement of endangered or 
threatened plants does not violate the Act.
    (5) Comment: In the case of the Texas golden gladecress, the 
Service needs a better understanding of the variability of the Weches 
Formation across the numerous counties which the formation underlies 
when determining what may constitute the physical or biological 
features for the species and where these features are currently found. 
The Service should look at variations in calcium availability and long-
term pH changes across the formation in order to identify more 
potential sites at which to survey for the Texas golden gladecress.
    Our response: We recognize that variability of Weches outcrops does 
exist across the Weches Formation throughout the numerous counties 
under which it is found. We agree that a better characterization of the 
geology and soils underlying known Texas golden gladecress populations 
could provide useful information. However, there are likely other 
factors characterizing individual outcrop sites that support the Texas 
golden gladecress that may also be important. Further, the Service must 
use the best scientific and commercial data available at the time of 
critical habitat determination. Determining the chemical components of 
the geological formations beneath known glade sites is not a feasible 
accomplishment within the timeframe we have to publish our final 
determination. This research would be addressed in recovery planning. 
For purposes of this final rule designating critical habitat, we used 
the more general Weches Formation outcrops descriptions, and we more 
specifically relied on the geologic and soils information available 
from one known Texas golden gladecress population site, as well as from 
one white bladderpod site. Please see the ``Criteria Used To Identify 
Critical Habitat for Texas Golden Gladecress'' and ``Mapping Texas 
Golden Gladecress Critical Habitat'' sections for the Texas golden 
gladecress in this final rule for more information.

[[Page 56075]]

    (6) Comment: Clarification on exclusions of critical habitat within 
SH ROWs was requested by a peer reviewer and the State. There is a 
contradiction within the proposed rule regarding critical habitat in SH 
ROWs for the Neches River rose-mallow versus the Texas golden 
gladecress. The proposed rule states that, for Neches River rose-
mallow, ROW would be excluded for the area designated as critical 
habitat, but ROW is not considered excluded from critical habitat units 
for the Texas golden gladecress. For Neches River rose-mallow critical 
habitat unit 1, the map in the proposed rule does not seem to show 
critical habitat within the SH ROW; however, Table 8 specifically 
states that 1.1 ac (0.45 ha) of critical habitat is present within the 
SH ROW.
    Our Response: Language in the proposed rule indicating that Neches 
River rose-mallow's critical habitat excluded SH ROW was an error and 
has been corrected in this determination. Extant populations of both 
Neches River rose-mallow and Texas golden gladecress occur in SH ROWs, 
so the ROWs at these sites would be considered occupied habitat.
    (7) Comment: A peer reviewer suggested that the Service consider 
excluding the ``filled'' portions of the TXDOT ROWs within the critical 
habitat units. In low areas such as floodplains, valleys, etc., TXDOT 
constructs the paved surface of the road on large amounts of ``fill'' 
(Adams 2013a, pers. comm.). Fill consists of clay soil, which is not 
suitable habitat for the either plant. This fill material is often 
brought to a site to elevate the road bed. These areas are then 
revegetated to reduce erosion. The size of a fill area is dependent on 
the existing slope and width of the roadway or bridge (Adams 2013a, 
pers. comm.). This reviewer has never witnessed the Neches River rose-
mallow or the white bladderbod (habitat associate of the Texas golden 
gladecress) growing on the front slope (i.e., the area immediately 
adjacent to the road) of a TXDOT ROW.
    Our Response: Portions of both species critical habitat are within 
TXDOT ROWs. Two Texas golden gladecress and three Neches River rose-
mallow sites extend into ROWs managed by TXDOT. The Service agrees that 
neither species grows on fill material or immediately adjacent to the 
road edge. Given the Texas golden gladecress' specialized habitat 
requirements, and the Neches River rose-mallow requirement of hydric 
alluvial soils, it is unlikely that either would survive on, or spread 
onto, areas consisting of fill material used by the TXDOT. Both species 
grow farther downslope within the ROW where suitable soils still exist. 
The ROW immediately adjacent to the road, containing the fill material 
lacks the primary constituent elements for these species. The unfilled 
portions of the ROWs, where the plants are able to persist, do retain 
the primary constituent elements that support the life-history 
processes of the species, while the built-up, paved and filled portions 
of the roadway do not. Based on this information, the Service includes 
the fill area along roadways as developed areas that are not included 
in critical habitat designation because these areas do not meet the 
definition of critical habitat for either species.
    (8) Comment: There are ongoing service improvements, including 
installation of communication, electric power, water and sewer lines, 
taking place in rural areas, some of which occur in highway ROWs and 
have potential to occur in Texas golden gladecress critical habitat 
(Walker 2012, pers. comm.).
    Our Response: We acknowledge that the installation of new service 
lines (e.g., communication, water, domestic gas, and power lines) could 
potentially occur in more rural areas and these activities typically 
occur in road ROWs, such as where the Texas golden gladecress occurs. 
There are two known Texas golden gladecress sites that extend into road 
ROWs as well as three Neches River rose-mallow sites.
    Section 7 of the Act requires Federal agencies, in consultation 
with the Service, to ensure that any action authorized, funded, or 
carried out by a Federal agency (thereby constituting a Federal nexus) 
is not likely to result in the destruction or adverse modification of 
critical habitat. If there is not a Federal nexus for a given action, 
then critical habitat designation, including on private lands, does not 
restrict any actions that destroy or adversely modify critical habitat. 
If a person wishes to develop private land, with no Federal nexus, and 
in accordance with State law, then destroying or adversely modifying 
critical habitat does not violate the Act. The Service can and will 
provide technical assistance to minimize and avoid impacts to the Texas 
golden gladecress critical habitat if such assistance is requested.
Comments From States
    Section 4(i) of the Act states, ``the Secretary shall submit to the 
State agency a written justification for his failure to adopt 
regulations consistent with the agency's comments or petition.'' 
Comments received from the State regarding the proposal to designate 
critical habitat for the Texas golden gladecress and Neches River rose-
mallow are addressed below.
    (9) Comment: One state commenter and two public commenters noted 
that the Neches River rose-mallow has not been seen at some sites for 
over a decade. Of the 11 sites considered to be currently occupied by 
the Neches River rose-mallow, three have not been observed in more than 
10 years. The Camp Olympia site has not been relocated since 1978 
despite surveys in 1992 and 1993 (Warnock 1995, p. 6). In fact the site 
was listed as extirpated or historical by Warnock (1995). The Champion 
site was last observed in 2001. The site has apparently been logged. 
This site should be revisited before considering it currently occupied. 
Additionally, one commenter pointed out that the Harrison County 
population has not been relocated since 1980, perhaps owing to its 
imprecise location (ca. 5 miles (mi) (8.05 kilometers (km) south of 
Hallsville) and suggested that it seems difficult to know with any 
certainty that this site is currently occupied. Using aerial 
photography to delineate a 20-ac (8.1-ha) site based on a previous 
interpretation of a vague location does not lead to a precise location 
on which to base critical habitat. The Service cannot assume that the 
habitat has remained intact when the location of the occupied site is 
unverifiable.
    Our Response: We consider the three sites referenced by the 
commenter (Harrison County, Champion, and Camp Olympia) to be occupied 
by the Neches River rose-mallow for the purposes of critical habitat. 
Two voucher specimens were collected from Camp Olympia in 1977 by E. 
Marsh and in 1978 by E. Marsh and C. McLeod; both were identified as 
the Neches River rose-mallow (TXNDD 2012, pp. 58-59), confirming the 
species occurrence at this site. The location information from these 
plant specimens collected in 1977 was used by Warnock (1995) to 
relocate the population. In Warnock's status report, he described the 
location of the site, ``beyond the end of Farm-to-Market Road 3188, 200 
feet from the water's edge along Lake Livingston'' and provided the 
latitude and longitude of the site as well (1995, p. 6). Attempts were 
made on foot in 1992 and by canoe in 1993 to relocate this population 
(Warnock 1995, p. 6), but without success. However, there are several 
reasons why the plants may not have been located. Dense vegetation 
along the shoreline could have made the plant from that distance not 
easily discernible. Also, the nature of the Neches River rose-mallow 
habitat,

[[Page 56076]]

especially at sites with fluctuating water levels (like oxbows, 
sloughs, sand bars of river systems), is such that the zone in which 
the plants are located could shift or the plants perhaps be killed back 
when conditions are too wet or too dry, but the plants may then re-
establish from seed when conditions are suitable (Warnock 1995, p. 6).
    The Champion Site was first observed in 1996 with several hundred 
plants, and revisited in 1997, 1998, and 2001. In 1997, cuttings from 
plants and seeds were collected and given to Mercer Arboretum. The 
plants that were observed in 1998 did not have reproductive structures 
present but were identified as likely Neches River rose-mallow. In 
2001, researchers found 300-400 plants. Logging at this site has 
occurred in the recent past but there is not information to show that 
the Neches River rose-mallow is no longer present at this site. The 
seed bank viability of this species is still not clearly understood, 
but there is potential that even if above-ground plant parts were 
removed, the seed bank may still be intact. Further, since this species 
requires open habitat, the removal of canopy species could benefit the 
Neches River rose-mallow by providing more suitable habitat.
    For the Harrison Site, we used the best scientific and commercial 
data available at the time the proposed rule was published. A voucher 
specimen was collected in 1980 and was confirmed in 2011 by TPWD and 
Stephen F. Austin State University (SFASU) researchers as Hibiscus 
dasycalyx. Because we received new information from a commenter that 
this critical habitat unit was in part an operating lignite mine, known 
as South Hallsville No. 1 (Texas Mining and Reclamation Association 
2013, p. 3), we made inquiries with the Railroad Commission of Texas 
(RRC) about locations and status of mines in Harrison County. The RRC 
confirmed that only two mines were in operational status in Harrison 
County, one of which included the South Hallsville mine (referred to by 
the commenter) but that this mine was located northeast of the critical 
habitat Unit 2. The RRC provided new information that the critical 
habitat unit was a sedimentation pond of a reclaimed (nonfunctional) 
lignite mine; inactive since the late 1990's. Because the site is a 
sedimentation pond, and not an area that is being actively excavated 
for extraction of lignite, the wetland edge associated with the pond 
may still support the Neches River rose-mallow. The best available 
scientific and commercial data does not indicate that the Harrison 
County Site has been altered to the point that the species has been 
eliminated from this site.
    Regarding delineation of critical habitat at these sites, we used 
satellite imagery from Google Earth to compare available habitat images 
from 1995 and 2011 to look for habitat alteration that would make these 
sites unsuitable for the Neches River rose-mallow. It did not appear 
that Neches River rose-mallow habitat had been altered to the point 
that the areas would not contain the physical or biological features 
essential to the conservation of the species (see the ``Final Critical 
Habitat Designation'' for the Neches River Rose-mallow section of this 
final rule for more information).
    The Act requires that we use the best scientific and commercial 
information available regardless of the age of the information. The 
criteria for critical habitat were evaluated using the best scientific 
and commercial data available including plant surveys that occurred, in 
some cases, more than 20 years ago. Some areas have not been revisited; 
however, absence of evidence does not equate to evidence that the plant 
has been extirpated from an area. For example, SH 230 ROW had not been 
seen since 2002, and the site was considered extirpated. However, 
during this comment period we received information that the Neches 
River rose-mallow was observed in 2012 by a graduate student from SFASU 
(Melinchuk 2012, p. 3). This is an example of the potential that this 
species may go undetected for a period of time due to the biology of 
the species. We also relied on the existence of voucher specimens to 
help confirm the species presence at these sites in the past. It is 
often the case that biological information may be lacking for rare 
species; however, we reviewed all available information and 
incorporated it into our final rule. We used the best scientific and 
commercial data available in assessing occupancy, recognizing the 
limitations of some of the information. We acknowledge that additional 
surveys and continued monitoring of existing plots would be valuable 
and should be considered as a recovery action for these species. The 
best scientific and commercial data available suggest the site is still 
occupied by the Neches River rose-mallow and contain at least one of 
the identified physical and biological features essential to the 
conservation of the species.
    The extent to which the occupancy of this unit is in question, we 
have alternatively designated Units 2, 9, and 11 under section 
3(5)(A)(ii) of the Act because we consider them to be essential for the 
conservation of the Neches River rose-mallow, regardless of occupancy 
data. Including these units in the designation of critical habitat for 
the Neches River rose-mallow aligns with the conservation strategy for 
this species.
    (10) Comment: One state commenter, in addition to two public 
commenters, expressed their belief that these species have not been 
fully studied. They indicated that there are significant concerns with 
the quality of data and analysis the Service used for its 
determination. They believe that the proposal is based largely on 
inconclusive reports and vast speculation about operations thought to 
affect habitats, existing regulatory mechanisms, conservation efforts, 
species populations, and potential threats that fail to provide any 
sound scientific foundation on which to justify the listing and 
critical habitat designation of these species.
    Our Response: It is often the case that biological information may 
be lacking for rare species; however, we considered the best available 
scientific and commercial information and incorporated it into our 
final rule. We sought comments from independent peer reviewers to 
ensure that our designation is based on scientifically sound data, 
assumptions, and analysis. We did not receive information that the 
science we used was unsound. We solicited information from the general 
public, non-governmental conservation organizations, State and Federal 
agencies that are familiar with the species and their habitats in East 
Texas, academic institutions, and groups and individuals that might 
have information that would contribute to an update of our knowledge of 
the Texas golden gladecress and the Neches River rose-mallow, as well 
as the activities and natural processes that might be contributing to 
the decline of either species.
    We used information garnered from this solicitation in addition to 
information in the files of the Service, TPWD, the Texas Natural 
Diversity Database's (TXNDD's) Elements of Occurrence records for both 
species, published journal articles, newspaper and magazine articles, 
status reports contracted by the Service and TPWD, reports from site 
visits, and telephone and electronic mail conversations with 
knowledgeable individuals. We also used satellite and aerial imagery to 
ascertain changes in land cover and land use at historical population 
sites and to determine whether the presence of primary constituent 
elements for each species were still in place. Additionally,

[[Page 56077]]

we used the results of population monitoring from site visits to look 
at abundance, and if enough information was available, to get an idea 
of trends in the populations. In October 2011, we also made field trips 
to known sites where we were granted access, to verify land uses and 
contribute to the veracity of our threats analysis. In March of 2012, 
we helped to organize and carry out a workshop and field tour of Texas 
golden gladecress sites for the purposes of assisting landowners and 
agricultural agencies with becoming familiar with the species and its 
habitat. We also revisited accessible Texas golden gladecress sites. In 
August 2012, we attended a Neches River rose-mallow workshop and field 
tour conducted by TPWD and revisited Neches River rose-mallow 
population sites. We used the best scientific and commercial 
information available in assessing population status, recognizing the 
limitations of some of the information.
    (11) Comment: The critical habitat designations will have a 
negative impact on agricultural-based economies in rural counties in 
their district, including raising of cattle and forage, poultry, 
timber, and row crops.
    Our response: As discussed in section 4.7 of the draft economic 
analysis, for activities such as agriculture, husbandry, and forestry, 
a Federal nexus may result from technical assistance to private 
landowners from the U.S. Department of Agriculture's NRCS. In such 
instances, consultation regarding potential effects of the activities 
on critical habitat would occur. Following discussions with the NRCS, 
it was determined that the involvement of the NRCS in projects within 
the critical habitat designation within the timeframe of the study is 
unlikely. For this reason, consultation is not expected to occur, and 
the draft economic analysis does not anticipate critical habitat 
designation to affect these activities.
    As stated in the proposed rule, 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.
    As discussed in the draft economic analysis, the designation of 
critical habitat for the Texas golden gladecress is likely to result in 
relatively minor administrative impacts, with minimal project 
modifications likely to result from the designation of critical 
habitat. All incremental costs are administrative in nature and result 
from the consideration of adverse modification in section 7 
consultation under the Act. Only those projects with a federal nexus 
would require section 7 consultations with the Service and then it is 
the responsibility of the federal action agency to consult with the 
Service, not the private individual or company. Further, all units are 
occupied by the plant and will require consultation regardless of the 
designation of critical habitat. In addition, project modifications 
necessary to avoid adverse modification of critical habitat are 
indistinguishable from those necessary to avoid jeopardizing the 
species (see the Service's reasoning in the economic analysis, Appendix 
B).
    (12) Comment: One state commenter noted that he was unable to 
replicate the results presented in Exhibit 4-3 using the formulae 
presented in Exhibit 2-4.
    Our response: The results of the analysis follow from the formulae 
presented. The cost estimates in the draft economic analysis exhibits 
are presented as rounded numbers (rounded to two significant digits) 
but were calculated based on unrounded numbers.
    (13) Comment: One state comment on the draft economic analysis 
inquired why the annualized values are identical for both the 3 percent 
and 7 percent discount rate calculations.
    Our response: The annualized value effectively illustrates the 
economic impact as a stream of payments in equivalent annual payments 
over a set period of time. If the costs of an activity are expected to 
be incurred equivalently over the 20-year period of the analysis, the 
annualized value under any rate will be the annual cost of the 
activity. For those critical habitat units where the undiscounted 
calculated costs over the 20-year period are equal in each year, the 
annualized values are identical for both the 3 percent and 7 percent 
discount rate. Additionally, if the undiscounted annual costs are 
equivalent but occur in some pattern over the 20-year period (i.e., 
they are incurred every other year), the difference in annualized 
values between discount rates will be very minor. In these cases, with 
rounding applied, the values are identical in the results table.
    (14) Comment: One state comment questioned the selection of the 
discount rate. The comment noted that the Office of Management and 
Budget's regulatory impact analysis primer includes guidance on the use 
of a lower discount rate (1 percent to 3 percent) when 
intergenerational effects are of concern.
    Our response: The discount rates of three and seven percent used in 
the economic analysis are in accordance with the Office of Management 
and Budget's guidance on the conduct of regulatory impact analysis. The 
use of a lower discount rate, such as one percent, may be applicable 
when intergenerational benefits or costs are expected to accrue from 
regulation. With a 20-year timeframe, we do not consider this analysis 
to be capturing intergenerational impacts. In the intergenerational 
discounting literature, a minimum time horizon for considering 
intergenerational effects is generally 50 years. However, in response 
to a request received in this comment, we performed a sensitivity 
analysis using the one percent discount rate. The total present value 
cost employing a one percent discount rate is $690,000, approximately 
13 percent greater than the total, present value cost determined using 
a three percent discount rate and 35 percent greater than the cost 
determined using a seven percent discount rate.
    (15) Comment: Benefits should have been quantified in the economic 
analysis to allow for a direct comparison between monetized costs and 
benefits. Further, the unavailability of existing studies specific to 
the species considered in the analysis should not preclude the 
estimation and quantification of benefits.
    Our response: As described in Chapter 5 of the draft economic 
analysis, monetization of benefits requires information on how the 
incremental conservation efforts described in the report affect the 
recovery probability of either the Texas golden gladecress or Neches 
River rose-mallow and findings regarding the public's willingness-to-
pay for the incremental change in recovery for these species, or 
similar species. No such studies currently exist and such primary 
research is outside the scope of the analysis.
    (16) Comment: One state comment suggested that while the study area 
is defined in the draft economic analysis to be ``all lands proposed 
for critical habitat designation,'' the monetization of economic impact 
should be across the entire range of the species.
    Our response: Because the draft economic analysis quantifies the

[[Page 56078]]

incremental impact of critical habitat designation, the geographic 
scope of the analysis is limited to the area over which the critical 
habitat rule may affect projects or activities.
    (17) Comment: Specifically with regard to transportation and 
utility projects, there are trickle-down costs. Conducting section 7 
consultations adds costs to projects and these costs may get passed 
along to consumers.
    Our Response: Section 4.2 of the draft economic analysis evaluates 
impacts on transportation activities, and detailed discussions with 
TXDOT informed the quantitative and qualitative assessment of these 
impacts. Based on expected activities and consultations, the 
incremental effect of designating critical habitat on transportation 
projects was found to be modest. Over the 20-year period of the study, 
we project incremental costs for transportation activities to be 
$66,000 for the Texas golden gladecress critical habitat and $15,000 
for the Neches River rose-mallow habitat. For utility projects, an 
overall undiscounted cost to the three pertinent electric cooperatives 
of $25,300 over the 20-year timeframe of the study was calculated and 
the analysis did not anticipate these costs to influence the utility 
rates charged to customers (for further discussion see Our Response to 
Comment 24 below).
Public Comments
    (18) Comment: One commenter requested clarification regarding lack 
of access being granted to their site. The Camp Olympia landowner 
stated that they have been at the site since the 1970's and access has 
never been requested nor denied. This landowner has also searched his 
property for Neches River rose-mallow and not found it. Two major 
hurricanes and a severe drought have caused major habitat alterations 
including a loss of trees and plants. The commenter believes this unit 
should not be considered for critical habitat or the species for 
listing.
    Our Response: We stated in the proposed rule that we considered the 
Camp Olympia site to be an extant population (i.e., occupied). We based 
this on the best scientific and commercial information available at the 
time of listing, which was the documented presence of the Neches River 
rose-mallow at this site based on voucher specimens collected in 1977 
and in 1978. The best scientific and commercial information available 
indicates that the species is likely to persist because the habitat has 
not been altered such that it would no longer support the species or 
that the population had been extirpated since 1978. The site has only 
been visited by a species expert twice since 1978.
    Although the site was surveyed by Klips in 1992 and Warnock in 1993 
without success, leading Warnock (1995, p. 6) to list the site as 
extirpated or historical, there is reason to believe that the plants 
may still be there (See Our Response to Comment 9). In addition to site 
conditions that can change with fluctuations in water level, resulting 
in shifting of the plants' location, Warnock's 1993 site survey was 
conducted from the water (canoe), not from the land, and the presence 
of the Neches River rose-mallow may have been hidden from view by dense 
vegetation at the water's edge. The site could have been overgrown, the 
plant may not have been in bloom at the time of the survey, and 
environmental factors could have hindered the production of flowers at 
the time of the survey. Although the landowner referred to changes in 
habitat conditions at the Camp Olympia site due to hurricanes and 
drought, using Google Earth satellite imagery to compare available 
habitat from 1995 and 2011 we could not ascertain habitat alteration 
that would make sites unsuitable for the Neches River rose-mallow. 
Consequently, the best scientific and commercial data available is 
still the 1978 record from the TXNDD and we considered this site to be 
occupied.
    The extent to which the occupancy of this unit is in question, we 
have alternatively designated Units 2, 9, and 11 under section 
3(5)(A)(ii) of the Act because we consider them to be essential for the 
conservation of the Neches River rose-mallow, regardless of occupancy 
data. Including these units in the designation of critical habitat for 
the Neches River rose-mallow aligns with the conservation strategy for 
this species.
    (19) Comment: As it currently is drawn, the area being proposed for 
critical habitat unit 4 (SH 204 ROW or Mud Creek) is only a small 
portion of a historically much larger piece of Neches River rose-mallow 
habitat. The site has dwindled over time due to mowing and herbicide 
practices by private landowners.
    Our response: The area not designated as critical habitat does not 
have an open canopy providing partial to full sun exposure. The Neches 
River rose-mallow is typically found in an open canopy (Warnock 1995, 
pp. 11, 13), but plants also grow in partial sun (as is the case at SH 
204 ROW). However, sunlight is needed for blooming as the blooming 
period may only last 1 day (Snow and Spira 1993, p. 160).
    (20) Comment: One commenter questioned the validity of including 
the introduced Neches River rose-mallow critical habitat unit at the 
Mill Creek Gardens, in Nacogdoches County. Although the site may be the 
only remaining pure site for the Neches River rose-mallow, seedlings 
and seeds have been used for other reintroduction sites. Also, this 
site is along an emergency spillway of a dam where the soil is much 
different than any of the natural populations. Another commenter 
indicated that the four natural populations of Neches River rose-mallow 
need protection, but does not believe the remaining seven sites of the 
Neches River rose-mallow should be designated as critical habitat. The 
Mill Creek site is in the emergency spillway of an 8-acre lake, and the 
site bears little resemblance to any natural site, specifically the 
soil. The only management since 1995 has been annual mowing or an 
occasional burn.
    Our response: For the purpose of designating critical habitat for 
the Neches River rose-mallow, we included all currently occupied 
populations sites, as required by section 3(5)(A)(i) of the Act. We 
defined occupied areas as sites where Neches River rose-mallow had been 
documented based on the most recent field surveys that were available 
to us as of 2011, including recent reports and survey information from 
the Davy Crockett NF, TPWD, TXDOT, and observations by species experts 
(Warnock 1995, p. 6; Miller 2011, pers. comm.; TXNDD 2012a, entire). 
Based on this information we determined that there are 11 currently 
occupied areas for the Neches River rose-mallow in Trinity, Houston, 
Cherokee, Nacogdoches, and Harrison Counties in East Texas. Although 
two of these areas have not been verified since the 1980s and mid-
1990s, the best scientific and commercial data available did not show 
these sites to have been modified such that they no longer had the 
physical or biological features essential for the Neches River rose-
mallow, therefore we considered them presently occupied. Populations 
that were successfully introduced were included with the natural 
populations because the introduced sites are considered to have at 
least one of the primary constituent elements required by the species 
and because the species is still present at the site. The primary 
constituent elements of the Mill Creek Gardens site include its 
location within Mill Creek (part of the Angelina River basin), open-
canopy habitat with full sun, and the presence at the site of alluvial, 
hydric soils.
    (21) Comment: Many comments were received expressing concern about 
the

[[Page 56079]]

negative impact the critical habitat designations (particularly the 
rose-mallow critical habitat unit 4) may have on the Lake Columbia 
water supply project in Cherokee County and the future water supply of 
the region. Most prominently, it was proposed that the costs incurred 
by the Angelina and Neches River Authority (ANRA) and local communities 
as a result of the critical habitat designation were either not 
considered or were estimated to be far lower than ANRA projects for 
itself.
    Our Response: As documented in section 4.5 of the draft economic 
analysis, water management activities were evaluated for the Neches 
River rose-mallow. Critical habitat unit 4, located downstream from the 
proposed reservoir, is considered to be occupied for the purposes of 
critical habitat. Thus, a consultation with the Army Corps of Engineers 
is expected to take place regardless of critical habitat designation. 
In addition, the Service anticipates that critical habitat designation 
will not generate any requests for project modifications above and 
beyond what would already be recommended due to the presence of the 
species. As such, the costs associated with critical habitat for this 
unit are those incremental administrative costs of considering critical 
habitat during the consultation. Angelina and Neches River Authority is 
anticipated to incur $2,080 in costs for the additional consideration 
of critical habitat as a third party participant during the formal 
consultation process between the Service and Army Corps of Engineers. 
The Army Corps of Engineers does not anticipate any other future 
section 7 consultations for the Neches River rose-mallow within the 
timeframe of this analysis (Industrial Economics 2013, pp. 4-11).
    (22) Comment: The threat to the SH 204 ROW site (unit 4) by ``water 
management strategies'' is speculative. There are no scientific data 
that demonstrate the level of hydrological change that would impact the 
Neches River rose-mallow, therefore the Service is speculating about 
this threat.
    Our Response: Some degree of hydrologic change has been seen at 
most of the Neches River rose-mallow sites, with the exception of some 
private land sites for which information is lacking. The Neches River 
rose-mallow likely requires high precipitation and flowing water or 
flood events to disperse seed (Warnock 1995, p. 20; Scott 1997, p. 8; 
Reeves 2008, p. 3), and although the Neches River rose-mallow is 
adapted to persist during dry portions of the year, a complete lack of 
water can diminish seed production, and affect range expansion and 
genetic exchange. Since Neches River rose-mallow is so water-dependent, 
hydrological changes can have significant impacts on the species.
    Regarding the SH 204 ROW site (unit 4) in particular, the best 
scientific and commercial data available suggests that the construction 
of the Lake Columbia reservoir project will divert downstream water, 
thereby potentially dewatering the Neches River rose-mallow population 
site. Project details are still being worked out by involved agencies, 
therefore, we do not know the amount of water that is projected to 
remain flowing to this site or if future water management practices or 
decisions will allow for seasonal flooding of the site. Please 
reference the ``Hydrological Change'' section of this rule for more 
information on this project and projected hydrological changes to this 
and other sites.
    (23) Comment: The Service did not completely ascertain, or was 
unwilling to admit to, the total economic impact to rural East Texas 
counties and the State of Texas in general. Water is a critical issue, 
and the commenter expressed their belief that the designations could 
seriously restrict construction of critical water resource projects and 
possible transport of water through pipelines.
    Our Response: The only water supply project brought to the 
Service's attention was the proposed Lake Columbia project (Industrial 
Economics 2013, pp. 4-11), which is a water supply reservoir. The 
Service addressed this project in our proposed rule, final rule, and 
economic analysis. As we stated in the proposed rule, 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.
    (24) Comment: Two electric cooperatives operating in East Texas 
expressed concern about the designation of critical habitat increasing 
costs for the utility, which would result in higher electricity rates 
for local users.
    Our Response: The U.S. Department of Agriculture's Rural Utility 
Service may fund project work undertaken by electric cooperatives. This 
constitutes a Federal nexus triggering consultation under the Act on 
these projects that may affect listed species and critical habitats. 
For each 4-year workplan set forth by the three cooperatives serving 
the areas in which critical habitat is proposed, we anticipated an 
informal section 7 consultation will occur. For the Neches River rose-
mallow, we assume that the costs of these consultations are related to 
the presence of the plant and the critical habitat designation will 
generate only limited administrative effort. For the Texas golden 
gladecress, we assume that the plant will not be present and therefore 
the incremental costs associated with critical habitat are both: (1) 
Administrative costs and (2) costs associated with project 
modifications proposed during the consultation. As described in section 
4.6 of the draft economic analysis, based on our conversations with 
RUS, we expect the utility projects will be able to avoid impacts to 
critical habitat relatively easily. Project modifications include 
modifying clearing and maintenance techniques, and adjusting new pole 
placement to avoid digging into glade substrate. Because the costs 
associated with these project modifications are anticipated to be very 
minor, they were not quantified in the analysis. Overall, we calculated 
an undiscounted cost to the three electric cooperatives of $25,300 over 
the 20-year timeframe of the study, or approximately $1,265 per year. 
We do not expect these costs to influence the utility rates charged to 
customers.
    In conclusion, while three small electric cooperatives are 
anticipated to incur costs as a result of the designation of critical 
habitat for Texas golden gladecress and Neches River rose-mallow, the 
costs are not expected to result in significant impacts to these 
entities (Industrial Economics 2013, p. A-2). See Attachment A and 
pages 4-11 through 4-13 of the draft economic analysis for a detailed 
description of our analysis.
    (25) Comment: Several commenters expressed the need to include 
impacts of critical habitat designation on natural gas exploration and 
development in the economic analysis, concerns about additional 
consultation and permitting requirements for future projects that 
require a Federal permit or otherwise have a federal nexus causing 
delays in operations. Other comments thought the Service's draft 
economic analysis of the critical habitat designation failed to 
identify oil and gas development as an economic activity that may be 
affected by the designation of critical habitat for the Texas golden 
gladecress.

[[Page 56080]]

    Our Response: The Service does identify natural gas exploration, 
production, and distribution (pipelines) as current and ongoing threats 
to the remaining populations of Texas golden gladecress. Texas golden 
gladecress sites could be directly impacted by site clearing or 
indirectly impacted by altering the hydrology. As stated in the 
proposed rule, the Simpson Farms Texas golden gladecress population, 
located 6 mi (9.7 km) east of the city of Nacogdoches, was eliminated 
by a natural gas pipeline that was installed sometime between August 
2010 and October 2011. The population was estimated to be approximately 
200 ft\2\ (18 m\2\) in size, and the loss of plants at this site 
represented a loss of approximately 65 percent of all the known plants.
    The entire known distribution of Texas golden gladecress is 
underlain by the Haynesville Shale formation (also known as the 
Haynesville-Bossier), recently recognized as a major natural gas source 
for the United States. By September 2011, as many as 1,500 wells had 
been drilled on the Haynesville Shale with many more anticipated, along 
with perhaps another 10 years of active drilling on this formation 
(Murphy 2011, pp. 2-3). Exploration and production of natural gas and 
oil is anticipated to continue in this area for at least the next 
decade.
    Section 4.7 and Exhibit 3.1 of the final economic analysis 
suggested that a Federal nexus arises for interstate oil pipelines 
because of oversight by Federal Energy Regulatory Commission. However, 
subsequent research determined that management of interstate oil 
pipelines is not within the scope of Federal Energy Regulatory 
Commission's operations. Therefore, for oil exploration and development 
on private land in Texas, no Federal nexus necessitating consideration 
of critical habitat exists. For this reason, we assume that the 
designation of critical habitat will have negligible impact on oil 
exploration and development. The information regarding oil pipelines in 
the final economic analysis has been corrected to reflect this change.
    The Federal nexus for natural gas activities is through Federal 
Energy Regulatory Commission, the agency responsible for permitting 
interstate natural gas pipelines. According to Federal Energy 
Regulatory Commission data, as of February 2013, there were no pending 
major interstate pipeline projects in East Texas. Furthermore, the 
white bladderpod, a federally-listed species since 1987 and co-located 
with the Texas golden gladecress, has no consultation history for 
natural gas pipeline activity. We have added this information to 
section 4.7 of the final economic analysis.
    The Texas Railroad Commission has detailed information on all 
existing pipelines, but the agency has no way to predict future routes 
for new pipelines or wells; they are limited to location data found 
within permit applications (Nunley 2011, pers. comm.).
    Further, the draft economic analysis identifies the baseline 
protection afforded through listing under the Act for the Texas golden 
gladecress and the Neches River rose-mallow and their habitats. This 
existing regulatory baseline provides the context for the evaluation of 
economic impacts expected to result from critical habitat designation. 
The draft economic analysis does not evaluate the threats to a species, 
it evaluates the incremental cost associated with additional 
conservation measures required due to the designation of critical 
habitat. The draft economic analysis determined that the designation of 
critical habitat for the Texas golden gladecress is likely to result in 
relatively minor administrative impacts. In addition, minimal project 
modifications are likely to result from the designation of critical 
habitat. These minor impacts are attributed primarily to very few 
projects with a Federal nexus being envisioned within the critical 
habitat designation for the plant. The primary activities expected to 
result in section 7 consultations and trigger project modifications are 
routine transportation projects and utility-related activities. To the 
extent that future economic activity is uncertain, this analysis may 
have failed to identify projects or land use alterations that may occur 
within habitat. However, given the stated conditions, project 
modifications due to critical habitat designation are unlikely for 
Neches River rose-mallow and minimal in cases where they do occur for 
Texas golden gladecress.
    No small entities are likely to be significantly affected by the 
designation of critical habitat. In addition, we do not anticipate 
measurable impacts to the supply, distribution, or use of energy 
(Industrial Economic 2013, p. ES-5). Pursuant to Executive Order No. 
13211, ``Actions Concerning Regulations that Significantly Affect 
Energy Supply, Distribution, or Use,'' issued May 18, 2001, Federal 
agencies must prepare and submit a ``Statement of Energy Effects'' for 
all ``significant energy actions.'' The purpose of this requirement is 
to ensure that all Federal agencies ``appropriately weigh and consider 
the effects of the Federal Government's regulations on the supply, 
distribution, and use of energy.'' (Industrial Economics 2013, p. A-3). 
For the Neches River rose-mallow and the Texas golden gladecress, 
minimal modifications to future energy-related economic activities are 
anticipated to result from the designation of critical habitat 
(Industrial Economics 2013, p. A-4).
    In summary, oil and gas production and distribution do pose a 
threat to the Texas golden gladecress as we identified in the proposed 
rule and this final rule. Specifically, the Chapel Hill population may 
still be affected by future pipeline construction. The draft economic 
analysis does not evaluate the threats to a species, it evaluates the 
incremental cost associated with additional conservation measures 
required due to the designation of critical habitat.
    (26) Comment: One commenter noted the existence of lignite mining 
activities in the vicinity of the critical habitat designation, 
particularly the proximity of critical habitat unit 2 for the Neches 
River rose-mallow to a sedimentation pond constructed by the Sabine 
Mining Company. Other commenters noted that in the economic analysis 
there was not any discussion of lignite coal mining in this region of 
Texas. The Sabine Mining Company alone produces more than four million 
tons of coal per year, and there are several other coal mines in east 
Texas, contributing a combined total state production of some 40 
million tons per year. According to the Office of Management and Budget 
a ``significant adverse effect'' may occur if the regulatory action 
under consideration results in reductions of coal production of more 
than five million tons per year. An additional concern was expressed 
that mining operations, including those for glauconite and other 
materials that counties buy for road maintenance, will be affected and 
that all increased costs will get passed along to counties as the 
purchasers, and ultimately to the tax payers.
    Our response: Currently, there are no active mines in the vicinity 
of the critical habitat; a sediment pond in Unit 2 is associated with a 
mine that has been in reclamation since the 1990s. However, a lignite 
belt is noted to exist throughout East Texas, including in the counties 
in which the critical habitat is designated. Because mines on private 
land are managed by the Railroad Commission in Texas, for a Federal 
nexus to occur with lignite mining activities, the critical habitat 
designation would need to overlay Federal mineral rights. The Bureau of 
Land Management confirmed that no Federal mineral rights overlap the 
critical habitat area. This information

[[Page 56081]]

has been included in section 4.7 of the economic analysis.
    Additionally, our final economic analysis on April 16, 2013 (78 FR 
22506-22510) identified and analyzed the potential economic impacts of 
designating critical habitat for the Texas golden gladecress and the 
Neches River rose-mallow. The economic analysis addressed the 
requirements of Executive Order 13211, Actions Concerning Regulations 
That Significantly Affect Energy Supply, Distribution, or Use, May 18, 
2001; as well as Executive Orders 12866 (as amended by 13563), 13211, 
and 12630, the Regulatory Flexibility Act (RFA), as amended by the 
Small Business Regulatory Enforcement Fairness Act (SBREFA), and the 
Unfunded Mandates Reform Act (UMRA). The economic analysis determined 
that no small entities are likely to be significantly affected by the 
designation of critical habitat. In addition, we do not anticipate 
measurable impacts to the supply, distribution, or use of energy. See 
Appendix A of the Final draft economic analysis for further 
information.
    (27) Comment: The listing and critical habitat will cause undue 
economic harm by limiting development opportunities in that region, 
threaten local jobs, and be too costly.
    Our Response: As discussed in the Executive Summary of the draft 
economic analysis, impacts of the critical habitat designation are 
expected to be relatively minor and mostly administrative in nature. 
The administrative costs and project modifications resulting from 
critical habitat designation are not expected to affect the type or 
intensity of economic activities occurring in the region. As such, we 
do not predict impacts to local jobs. See Our Response to Comments 11 
and 17 in the Comments from States section, as well as Comments 21 and 
23 above in Public comments.
    As documented in section 4.3 of the analysis, we do not forecast 
any restrictions on development or other major land use regulations as 
a result of the critical habitat designation that might influence 
private property values. In section 2.3.2, the report does note that 
public attitudes about limits or restrictions that critical habitat may 
impose can cause real economic effects to property owners, regardless 
of whether such limits are actually imposed. As the public becomes 
aware of the true regulatory effects imposed by critical habitat, the 
impact of the designation of property markets may decrease. 
Furthermore, the study cited in this comment did not identify 
statistically significant effects of the designation on land values 
outside of urban growth areas, limiting its applicability to this 
particular designation.
    (28) Comment: Commenters expressed concerns that critical habitat 
designations added to the regulatory burden on businesses and private 
landowners in the area at issue, and such designations, if made without 
a proper basis, would contravene the President's Executive Order 13563, 
which directs Federal agencies to identify and use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
They indicated that it would be an inappropriate use of Service's 
discretion to place regulatory burdens on development in the areas in 
question, when the agency has demonstrated neither that the proposed 
listings and designations are justified nor that such listings and 
designations would be the least burdensome tool for achieving the 
Service's goals. Commenters believe projects with a Federal nexus could 
be delayed or cancelled in East Texas counties due to critical habitat 
designation. They indicated the belief that any benefits associated 
with the proposed designations were outweighed by the potential for 
negative economic impacts.
    Our response: Executive Order 13563 requires agencies to tailor 
regulations to impose the least burden on society, consistent with 
obtaining regulatory objectives. The Service may exclude any area from 
critical habitat if we determine that the benefits of such exclusion 
outweigh the benefits of specifying such areas as part of critical 
habitat unless we determine that the failure to designate such area as 
critical habitat will result in the extinction of the species 
concerned. 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. The Executive Order 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.
    For projects occurring within the critical habitat designation for 
the Neches River rose-mallow, it is unlikely that critical habitat 
designation will generate project delays or cancellations. As discussed 
in section 4.1 of the draft economic analysis, any consultations or 
recommendations for project modifications that may result in project 
delays are expected to occur due to the presence of the plant 
regardless of whether critical habitat is designated. Project 
modifications due to critical habitat for the Texas golden gladecress 
are generally expected to generate only minor additional costs 
associated with project implementation. The consultation process and 
implementation of associated recommendations are not expected to 
generate substantial project delays or result in cancellation of 
projects.
    (29) Comment: The Service incorrectly assumed the generally 
described site location in Harrison County where the Neches River rose-
mallow was collected in 1980 had not been disturbed. Significant 
disturbance has taken place in that area. The Sabine Mining Company 
began development of the South Hallsville No. 1 Mine, a large lignite 
coal mine, in 1984, and has been operating continuously since then. The 
second largest proposed critical habitat site matches the footprint of 
a sedimentation pond on one of the state's major coal mines. The 
shoreline of a large sedimentation pond constructed by the mining 
company in the early 1990's is the exact boundary of the proposed 
critical habitat unit 2 for the Neches River rose-mallow.
    Our response: In regard to the location of the Harrison County site 
see Our Response to Comment 9. New information provided by the 
commenter confirms that the Harrison County critical habitat unit 
overlays a sedimentation pond of an old lignite (type of coal) mine 
that is no longer active (Lang 2013, pers. comm.). The pond's edge 
still provides at least one of the primary constituent elements needed 
by the Neches River rose-mallow. Consequently, we consider this site to 
meet the definition of critical habitat for the Neches River rose-
mallow.
    (30) Comment: The draft economic analysis did not monetize the 
costs of all the project modifications that were recognized to be 
necessary.
    Our response: Executive Order 12866 specifies that quantification 
of costs should be performed to the extent feasible. As discussed in 
sections 4.2 and 4.6 of the draft economic analysis, we do not quantify 
the potential impacts of the designation in two instances. The cost of 
altering vegetation clearing techniques at the base of utility poles 
was expected to be minor and is therefore described qualitatively. In 
addition, the draft economic analysis describes the potential costs to 
driver safety associated with a narrower roadway shoulder. These costs 
would be

[[Page 56082]]

net of the savings associated with constructing a narrower shoulder. 
Absent information on the extent to which the reduced roadway shoulder 
size may increase accident or injury, we describe this cost 
qualitatively.
    (31) Comment: The draft economic analysis did not provide a 
complete or accurate picture of the economic impact that would be 
caused by the proposed listing.
    Our response: As described in section 2.1 of the draft economic 
analysis, the analysis is focused on the incremental economics impacts 
of the designation of critical habitat for the Texas golden gladecress 
and the Neches River rose-mallow. This report does not attempt to 
capture the economic impacts of the listings of the two species. The 
Service is required to use the best scientific and commercial data 
available in determining the threatened or endangered status of a 
species. For critical habitat designation, the Service is required to 
use the best scientific and commercial data available, after taking 
into consideration the probable economic impacts and other impacts of 
the designation on proposed or ongoing activities. The Service 
evaluated the probable incremental economic impact of the designation 
of critical habitat through its economic analysis. The cost of listing 
the species are in the baseline and therefore not presented.
    (32) Comment: One comment suggested that potential incremental 
effects identified in ``Appendix B: The Incremental Effect Memorandum 
for the draft economic analysis for the proposed rule to Designate 
Critical Habitat for Texas golden gladecress and Neches River rose-
mallow'' of the draft economic analysis associated with activities that 
may affect the primary constituent elements (PCEs) for the Neches River 
rose-mallow without affecting the plant were not quantified in the 
analysis.
    Our response: As described in Appendix B, the purpose of the 
incremental effects memorandum is to provide information to serve as a 
basis for conducting an economic analysis of the proposed critical 
habitat. While it serves as the basis, subsequent discussions with the 
Service and other Federal agencies directly informs the analysis. 
Through such discussions, we did not identify an instance of the 
situation outlined in this comment for the Neches River rose-mallow. 
For this reason, these example incremental effects were not quantified 
in the analysis.
    (33) Comment: One comment stated that the estimated costs of 
consultation likely underestimate administrative costs and fail to 
reflect the true real-world costs associated with project delays caused 
by section 7 consultation. Another comment notes that the 
administrative consultation costs presented in Exhibit 2-3 represent 
old data.
    Our response: The administrative costs assigned in the study were 
developed from data from the Federal Government Schedule Rates, Office 
of Personnel Management, and a review of consultation records from 
several Service field offices across the country. While the estimates 
of time spent in section 7 consultations were derived from interviews 
with agencies and review of consultation records in 2002, the cost of 
time spent is based on current data describing the Federal government's 
2012 hourly pay rates, adjusting for overhead and benefits. As such, we 
consider these administrative costs a reasonable approximation of the 
administrative costs of consultation. As stated in the response to the 
comment on time delays, we do not anticipate this rule will generate 
measurable time delays.
    (34) Comment: One commenter stated that the draft economic 
analysis' reliance solely on administrative costs to quantify impact 
does not present a comprehensive appraisal of the economic impact of 
the proposed designation.
    Our response: The draft economic analysis presents the probable 
incremental economic impact of the designation of critical habitat for 
each species. Use of an incremental analysis is the only logical way to 
implement the Act. To understand the difference that designation of an 
area as critical habitat makes, one must compare the hypothetical world 
with the designation to the hypothetical world without the designation. 
For this reason, the Service compares the protections provided by the 
designation to the protections without the designation. This 
methodology is consistent with the general guidance given by the Office 
of Management and Budget to executive branch agencies as to how to 
conduct cost-benefit analyses.
    Section 2.3.2 of the final economic analysis describes that the 
economic analysis considers multiple categories of potential impacts, 
including administrative costs and costs of project modifications, 
which may be implemented to avoid adverse modification of critical 
habitat. For projects for which critical habitat designation is not 
expected to result in project modifications, or otherwise affect 
economic activities, we anticipate that the costs of the rule are 
limited to administrative costs.
    (35) Comment: The draft economic analysis should include the 
impacts the critical habitat designation would have on private 
landowners.
    Our Response: When prudent and determinable, the Act requires the 
Service to designate any habitat, which is considered to be critical 
habitat concurrently with making a determination that a species is an 
endangered or threatened species. Critical habitat is defined in 
section 3 of the Act: the specific areas within the geographic 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 for the conservation of the species and (b) which may require 
special management considerations or protection. The 11 occupied sites 
contain either one or more physical or biological feature essential to 
the Neches River rose-mallow which may require special management 
considerations or protection, as do the four occupied Texas golden 
gladecress sites. A final designation of critical habitat is based on 
the best scientific and commercial data available, after taking into 
consideration the probable economic impacts and other impacts of the 
designation on proposed or ongoing activities.
    As discussed in section 2.3.2 of the draft economic analysis, 
private landowners may be affected by critical habitat if they are 
party to a consultation and experience administrative impacts or bear 
costs of project modifications. Activities taking place on private land 
that do not involve a Federal nexus are unlikely to be directly 
affected by critical habitat; however, section 2.3.2 of the draft 
economic analysis additionally recognizes the potential for private 
landowners to be indirectly affected by critical habitat designation, 
for example in the case that the designation generates uncertainty 
about restrictions on future land use or triggers changes in state or 
local management of activities. As presented in section 4.3 of the 
draft economic analysis, however, we expect costs to private landowners 
in this case will be limited to the administrative costs associated 
with technical assistance for land management by Partners for Fish and 
Wildlife. It is important to note that this technical assistance is 
offered to willing landowners but is not required.
    (36) Comment: One commenter noted that if the private landowner 
does not have restrictions on the plants on their property, then there 
are no measures that would prevent the landowner from

[[Page 56083]]

destroying or further endangering a species.
    Our response: The commenter is correct. The Act does not prohibit 
destroying or adversely modifying critical habitat unless such 
activities involve an endangered species on Federal land, there is a 
Federal nexus, or if the action occurs in violation of State laws. If a 
person wishes to develop private land, with no Federal jurisdiction 
involved, in accordance with State law, then the potential destruction 
or adverse modification of critical habitat does not violate the Act. 
Critical habitat receives protection under section 7 of the Act through 
requiring Federal agencies to consult with the Service to ensure that 
action they carry out, fund, or authorize does not result in the 
destruction or adverse modification of critical habitat. If there is no 
Federal nexus, the critical habitat designation of private lands itself 
does not restrict any actions that destroy or adversely modify critical 
habitat.
    (37) Comment: Several comments were made addressing potential 
adverse impacts on property values due to the critical habitat 
designation.
    Our response: As documented in section 4.3 of the draft economic 
analysis, we do not forecast any restrictions on development or other 
major land use regulations as a result of the critical habitat 
designation that might influence private property values. In section 
2.3.2 of the draft economic analysis, the report does note that public 
attitudes about limits or restrictions that critical habitat may impose 
can cause real economic effects to property owners, regardless of 
whether such limits are actually imposed. As the public becomes aware 
of the true regulatory effects imposed by critical habitat, the impact 
of the designation of property markets may decrease. Furthermore, the 
study cited in this comment did not identify statistically significant 
effects of the designation on land values outside of urban growth 
areas, limiting its applicability to this particular designation.
    (38) Comment: One commenter questioned the benchmarks for 
designating species with critical habitat and how these areas are 
determined.
    Our response: Under the Act, any species that is determined to be 
an endangered or threatened species requires critical habitat to be 
designated, to the maximum extent prudent and determinable, using the 
best scientific and commercial data available and primary and original 
sources of information. 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, on which are found the physical 
or biological features that are essential to the conservation of the 
species and 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. See 
the ``Areas Occupied at the Time of Listing'' and ``Areas Unoccupied at 
the Time of Listing'' sections for both species in this final rule for 
further information.
    (39) Comment: One comment expressed concern that the economic 
analysis was incomplete because citations for discussions did not list 
the names of all the Service staff and only one state agency. This 
comment also noted that the document did not provide a list of those 
individuals consulted for information.
    Our response: As described in section 4.1, we contacted multiple 
Federal agencies and applicable state agencies that may permit, fund, 
or carry out activities within the proposed critical habitat 
designation. In response to public comments, we contacted additional 
agencies in order to confirm the status of a potential activity over 
the timeframe of the study. The final economic analysis will include 
these additional individuals. All individuals contacted are referenced 
by footnote in the economic analysis.
    (40) Comment: In response to the September publication of the 
proposed rule, multiple commenters requested an extended comment 
period.
    Our Response: We consider the comment periods described in the 
``Summary of Comments and Recommendations'' of this final rule to have 
provided the public a sufficient opportunity for submitting both 
written and oral public comments. In addition, the Act requires the 
Service to publish a final rule within 1 year from the date we propose 
to list a species. This 1-year timeframe can only be extended if there 
is substantial disagreement regarding the sufficiency or accuracy of 
the available data relevant to the determination or revision concerned, 
but only for 6 months and only for purposes of soliciting additional 
data. Based on the comments received and data evaluated there is not 
substantial disagreement regarding the sufficiency or accuracy of the 
data. We also reopened the comment period for the draft economic 
analysis and for the proposed rule.
    (41) Comment: One commenter indicated concern that designation of 
critical habitat will impose restrictions upon people's freedom of 
access to Federal lands (the Davy Crockett NF specifically).
    Our response: Neither listing nor designation of critical habitat 
for the Neches River rose-mallow of any area on the Davy Crockett NF 
will restrict public access of this land. The designation of critical 
habitat does not affect land ownership or establish a refuge, 
wilderness, reserve, preserve, or other conservation area. Such 
designation does not allow the government or public to access private 
lands.

Summary of Changes From Proposed Rule

    Our analysis or conclusions did not result in any substantial 
changes to the final rule from what was proposed.

Critical Habitat

Background

    Critical habitat is defined in section 3 of the Act as:
    (1) The specific areas within the geographical area occupied by the 
species, at the time it is listed in accordance with the Act, on which 
are found those physical or biological features
    (a) Essential to the conservation of the species, and
    (b) Which may require special management considerations or 
protection; and
    (2) Specific areas outside the geographical area occupied by the 
species at the time it is listed, upon a determination that such areas 
are essential for the conservation of the species.
    Conservation, as defined under section 3 of the Act, means to use 
and the use of all methods and procedures that are necessary to bring 
an endangered or threatened species to the point at which the measures 
provided 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

[[Page 56084]]

ensure, in consultation with the Service, that any action they 
authorize, fund, or carry out is not likely to result in the 
destruction or adverse modification of critical habitat. The 
designation of critical habitat does not affect land ownership or 
establish a refuge, wilderness, reserve, preserve, or other 
conservation area. Such designation does not allow the government or 
public to access private lands. Such designation does not require 
implementation of restoration, recovery, or enhancement measures by 
non-Federal landowners. Where a landowner requests Federal agency 
funding or authorization for an action that may affect a listed species 
or critical habitat, the consultation requirements of section 7(a)(2) 
of the Act would apply, but even in the event of a destruction or 
adverse modification finding, the obligation of the Federal action 
agency and the landowner is not to restore or recover the species, but 
to implement reasonable and prudent alternatives to avoid destruction 
or adverse modification of critical habitat.
    Under the first prong of the Act's definition of critical habitat, 
areas within the geographical area occupied by the species at the time 
it was listed are included in a critical habitat designation if they 
contain physical or biological features (1) which are essential to the 
conservation of the species and (2) which may require special 
management considerations or protection. For these areas, critical 
habitat designations identify, to the extent known using the best 
scientific and commercial data available, those physical or biological 
features that are essential to the conservation of the species (such as 
space, food, cover, and protected habitat). In identifying those 
physical or biological features within an area, we focus on the 
principal biological or physical constituent elements (primary 
constituent elements such as roost sites, nesting grounds, seasonal 
wetlands, water quality, tide, soil type) that are essential to the 
conservation of the species. Primary constituent elements are those 
specific elements of the physical or biological features that provide 
for a species' life-history processes and are essential to the 
conservation of the species.
    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. For example, an area currently occupied by the species but 
that was not occupied at the time of listing may be essential to the 
conservation of the species and may be included in the critical habitat 
designation. We designate critical habitat in areas outside the 
geographical area occupied by a species only when a designation limited 
to its range would be inadequate to ensure the conservation of the 
species.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific and commercial data available. 
Further, our Policy on Information Standards Under the Endangered 
Species Act (published in the Federal Register on July 1, 1994 (59 FR 
34271)), the Information Quality Act (section 515 of the Treasury and 
General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 
106-554; H.R. 5658)), and our associated Information Quality Guidelines 
provide criteria, establish procedures, and provide guidance to ensure 
that our decisions are based on the best scientific data available. 
They require our biologists, to the extent consistent with the Act and 
with the use of the best scientific data available, to use primary and 
original sources of information as the basis for recommendations to 
designate critical habitat.
    When we are determining which areas should be designated as 
critical habitat, our primary source of information is generally the 
information developed during the listing process for the species. 
Additional information sources may include the recovery plan for the 
species, articles in peer-reviewed journals, conservation plans 
developed by States and counties, scientific status surveys and 
studies, biological assessments, other unpublished materials, or 
experts' opinions or personal knowledge.
    Habitat is dynamic, and species may move from one area to another 
over time. We recognize that critical habitat designated at a 
particular point in time may not include all of the habitat areas that 
we may later determine are necessary for the recovery of the species. 
For these reasons, a critical habitat designation does not signal that 
habitat outside the designated area is unimportant or may not be needed 
for recovery of the species. Areas that are important to the 
conservation of the species, both inside and outside the critical 
habitat designation, will continue to be subject to: (1) Conservation 
actions implemented under section 7(a)(1) of the Act, (2) regulatory 
protections afforded by the requirement in section 7(a)(2) of the Act 
for Federal agencies to insure their actions are not likely to 
jeopardize the continued existence of any endangered or threatened 
species, and (3) section 9 of the Act's prohibitions on taking any 
individual of the species, including taking caused by actions that 
affect habitat. Federally funded or permitted projects affecting listed 
species outside their designated critical habitat areas may still 
result in jeopardy findings in some cases. These protections and 
conservation tools will continue to contribute to recovery of this 
species. Similarly, critical habitat designations made on the basis of 
the best available information at the time of designation will not 
control the direction and substance of future recovery plans, habitat 
conservation plans (HCPs), or other species conservation planning 
efforts if new information available at the time of these planning 
efforts calls for a different outcome.

Physical or Biological Features for the Texas Golden Gladecress

    In accordance with section 3(5)(A)(i) and 4(b)(1)(A) of the Act and 
regulations at 50 CFR 424.12, in determining which areas within the 
geographical area occupied by the species at the time of listing to 
designate as critical habitat, we consider the physical or biological 
features essential to the conservation of the species and which may 
require special management considerations or protection. These include, 
but are not limited to:
    (1) Space for individual and population growth and for normal 
behavior;
    (2) Food, water, air, light, minerals, or other nutritional or 
physiological requirements;
    (3) Cover or shelter;
    (4) Sites for breeding, reproduction, or rearing (or development) 
of offspring; and
    (5) Habitats that are protected from disturbance or are 
representative of the historical, geographical, and ecological 
distributions of a species.
    We derive the specific physical or biological features essential 
for Texas golden gladecress from studies of this species' habitat, 
ecology, and life history as described in the Critical Habitat section 
of the proposed rule to designate critical habitat published in the 
Federal Register on September 11, 2012 (77 FR 55968), and in the 
information presented below. Additional information can be found in the 
final listing rule published today elsewhere in the Federal Register. 
We have determined that Texas golden gladecress requires the following 
physical or biological features:

[[Page 56085]]

Space for Individual and Population Growth and for Normal Behavior
    Based on all documented occurrence records, the Texas golden 
gladecress is endemic to glade habitats in northern San Augustine and 
northwest Sabine Counties, Texas, where it is a habitat specialist, 
occurring only on outcrops of the Weches Geologic Formation (Mahler 
1987, p. 240; George and Nixon 1990, p. 120; Poole et al. 2007, pp. 
286-287). The gladecress grows only in glades on shallow, calcium-rich 
soils that are wet in winter and spring. These occur on ironstone 
(glauconite or green-stone) outcrops (Poole et al. 2007, p. 286). The 
Texas golden gladecress occurs in open, sunny, herbaceous-dominated 
plant communities in Weches glades; in some cases in areas that also 
support another federally listed plant, the white bladderpod 
(Lesquerella pallida) (Bridges 1988, pp. II-7, II-35, and II-35 
supplement). Unlike the white bladderpod, which can grow throughout the 
glade, the gladecress is restricted to the outcrop rock faces within 
the glades where it occurs (Nemec 1996, p. 8). The Texas golden 
gladecress shows a tight association with the Weches Formation and 
associated soils (Singhurst, 2011a, pers. comm., p. 3). The known Texas 
golden gladecress occurrences are all found on shallow, gravelly soils 
or almost bare bedrock overlying Trawick, Bub, or Nacogdoches soils.
    The Weches Glades form a small patch system of habitats, endemic to 
the outcrops of marine sediment and glauconitic clays that occur 
primarily in Nacogdoches, San Augustine, and Sabine Counties (Nature 
Serve 2009, p. 6). Surface exposures of the Weches Formation are 
usually on slopes (due to erosion) and typically are small; 16.4-65.6 
ft (5-20 m) in width, and generally not exceeding 328 ft (100 m) in 
length (George and Nixon 1990, p. 118). The average width of the Weches 
outcrop region varies from 2-5 mi (3.2-8 km) (Sellards et al. 1932 in 
Diggs et al. 2006, p. 56) and encompasses the route of SH 21. All known 
Texas golden gladecress populations occur, or formerly occurred, within 
1 mi (1.6 km) of SH 21. Of these populations, three sites where plants 
have been confirmed as recently as 2012 remain: Caney Creek Glades Site 
1 in San Augustine County, just east of the town of San Augustine; the 
Chapel Hill Site in San Augustine County, adjacent to County Road 151; 
and adjacent to SH 21 south of the town of Geneva, Sabine County. A 
fourth site, Caney Creek Glades Site 7, is also considered extant 
because there is no evidence that the habitat has been destroyed, 
however, the existence and size of the Texas golden gladecress at this 
site has not been verified since 1988 because the site is on private 
property to which access has been denied. Historically, populations in 
the closest proximity to each other were part of the Caney Creek Glade 
Complex that contained five of the eight known sites. This entire 
complex was located within an area that did not exceed 1 mi (1.6 km) 
from the most northern to most southern plant occurrences, and extended 
less than 0.32 miles (0.53 km) from east to west. The Chapel Hill and 
Geneva sites were outliers to the Caney Creek Complex, located 4.5 mi 
(7.24 km) and 11.4 mi (18.3 km), respectively, to the southeast. 
Multiple glades in close proximity to one another, as exemplified by 
the Caney Creek Glade Complex, may have facilitated cross fertilization 
between populations, enhancing genetic diversity, and perhaps providing 
space for population expansion.
    Potential exists for other areas within the range of the Texas 
golden gladecress to support glade complexes. Singhurst (2012b, pers. 
comm.), using aerial photography and maps of geology and soils, has 
identified clusters of potential glade sites in additional areas within 
the Weches Formation within 1 mi (1.6 km) to the north and south of SH 
21 as it traverses San Augustine County, as well as into Sabine County. 
We are also aware that areas adjacent to the Chapel Hill and Geneva 
sites have a high likelihood of suitable habitat.
    Due to loss, degradation, and fragmentation of habitat, optimal 
glade size or density of glade complexes needed to support long-term 
survival of Texas golden gladecress is not well understood, but 
monitoring of the extant sites between 1999-2009 showed that the Texas 
golden gladecress could persist on small, disjunct sites where it is 
able to grow and reproduce, at least in the short term. Based on the 
best available scientific and commercial information, a better model of 
a healthy population and habitat site may be found by looking at the 
historic Caney Creek Glade Site 6, which supported the largest 
population ever documented. This former site was contained within an 
area of approximately 10 ac (4 ha) and supported thousands of plants 
until the mid-1990's, when it was destroyed by mining excavation. This 
glade complex consisted of long, sheeted openings that presented a 
patchwork appearance of soil, rock, and glades (Singhurst 2012d, pers. 
comm.). This site likely represented ideal special conditions for this 
species because it supported a healthy and robust population.
    The best available scientific and commercial information regarding 
gene flow between Texas golden gladecress populations is that seed 
dispersal may be limited. Seeds appear to fall to the ground near the 
parent plant (Singhurst 2011c, pers. comm., p. 4) and probably stay in 
place unless water movement, such as flooding, carries them to other 
suitable habitats. The Weches outcrops occur in a scattered fashion 
across the landscape with habitat that is unsuitable for Texas golden 
gladecress lying between outcrops.
    Pollinators specific to Texas golden gladecress have not been 
identified. Native bees in the Families Andrenidae and Halictidae 
(sweat bees), including the species Halictus ligatus (sweat bee), were 
observed carrying pollen from Leavenworthia crassa (fleshyfruit 
gladecress) and L. stylosa (cedar gladecress) in northern Alabama 
(Lloyd 1965, pp. 106-115). Although representatives of these bee 
families are found across eastern Texas (Warriner 2012b, pers. comm.), 
there is no documentation of them visiting Texas golden gladecress. 
Busch and Urban (2011, p. 18) indicated the efficacy of these 
pollinators has not been studied in Leavenworthia. Texas golden 
gladecress is believed to be self-compatible and may not rely solely on 
pollinators for fertilization (see Biology section). Based on this 
information, close proximity of glade outcrops to one another may help 
to facilitate cross pollination and seed dispersal.
    Therefore, based on the information above, we identify glauconite 
exposures (outcrops) of the Weches Geologic Formation, found within 
Weches glades, as an essential physical feature for the species' 
continued existence. Although these individual exposures can be small 
in size and scattered throughout a glade or glades, ideally the glades 
will occur in multiples (a complex).
Food, Water, Air, Light, Minerals, or Other Nutritional or 
Physiological Requirements
    The geology and soils of Texas golden gladecress sites are unique 
in East Texas, and the species shows a tight association with the 
Weches Formation and associated soils (Singhurst, 2011a, pers. comm.). 
The Weches Formation is characterized by the mineral glauconite and 
contains glauconitic clays, calcareous marls, rich marine fossil 
deposits, and mudstone (George and Nixon 1990, pp. 117-118). In some 
areas, leaching of the soluble ingredients in the glauconite has 
concentrated iron in ironstone (iron-bearing limonite). The Weches 
Formation affects the local topography

[[Page 56086]]

and vegetation, with cap hills and escarpments where the erosion-
resistant ironstone layers occur, and more rolling topography where 
ironstone is not present (Diggs et al. 2006, p. 56).
    The Weches outcrops create limited areas of relatively thin 
alkaline soils in a region of mostly sandy soils (USFWS 1992, pp. 3-4) 
resulting in natural glade communities on the shallow, seasonally 
saturated, but frequently dry soils (Bezanson 2000 in Diggs et al. 
2006, p. 56). Soils associated with Weches glades are shallow, rocky, 
and basic in pH (alkaline), inhibiting the presence of woody species 
(Nature Serve 2009, p. 6). Soils underlying known Texas golden 
gladecress sites appear to be inclusions in the Nacogdoches, Trawick, 
or Bub soils series (U.S. Department of Agriculture 2009, entire). 
George (1987, p. 18) found that the soil profile of three Weches 
outcrops had a surface layer of sandy loam or sandy clay loam with 
impermeable glauconite clay at a depth of about 19.7 inches (50 cm). 
Measurements of soil pH ranged from 7.6 to 8.1 (George 1987, p. 18). 
Weches soils contain exceptionally high levels of calcium (2,500-6,000 
parts per million (ppm)) from fossilized shells, as well as high levels 
of potassium (170-250 ppm) and magnesium (250-400 ppm). The basic pH at 
these sites results from dissolution of the calcareous component of the 
rich marine fossil fauna of the Weches Formation (George 1987, p. 47). 
These conditions produce a harsh, variable environment that becomes 
saturated and seepy in cool moist months and during rainy seasons, but 
that dries out, becoming parched and hard, during hot summer months 
(USFWS 1992, pp. 3-4). Leavenworthia species are dormant by early 
summer, helping them to survive the dry period as seed; this dormancy 
is likely one of the major evolutionary adaptations in this genus 
enabling its species to endure the extreme droughty conditions of late 
summer (Quarterman 1950, p. 5).
    Texas golden gladecress is dependent on late fall-winter 
precipitation levels that keep the glade sediments saturated and leave 
pooled water on the small outcrop ledges. Based on observations of 
Texas golden gladecress population sites over a 10-year period within 
the Weches outcrops and glade complexes, Texas golden gladecress 
appeared to be highly restricted to wet microhabitats and ``even within 
suitable sites, the species seems limited to only seasonal seep runs 
and vernal pools within the site'' (Singhurst 2011a, pers. comm., p. 
3). The species' apparent requirement for direct contact with seeps and 
shallow puddles on exposed ledges of outcrop implies reliance on 
precipitation that falls directly onto the ledges and possibly on down-
slope movement of water percolating through the sediment atop the clay 
layer. George (1987, pp. 2-4) observed that the Weches outcrops were 
waterlogged in the spring due to the clay stratum, with water 
percolating until it hit the clay, then moving laterally and exiting on 
the hillsides where the outcrops are. At the Chapel Hill site, Texas 
golden gladecress was found on and around a few spots where the 
glauconite was exposed rather than in the dense cover of the herbaceous 
matrix (Carr 2005, p. 2). The glauconite exposures at this site were 
wet from seeps or due to percolating water moving laterally on top of 
the bedrock.
    All known Texas golden gladecress populations have been found on 
open, sunny exposures on Weches outcrops. Baskin and Baskin (1988, p. 
837) indicated that a high light requirement was common among the 
endemic plants of rock outcrop plant communities in the unglaciated 
eastern United States. This obligate need for high light is supported 
by field observations showing that these eastern outcrop endemics, 
similar to Texas golden gladecress: Grow on well-lighted portion of the 
outcrops but not in adjacent shaded forests; photosynthesize best in 
full sun, with a reduction in the presence of heavy shading; and 
compete poorly with plants that shade them (Baskin and Baskin 1988, p. 
837).
    Texas golden gladecress apparently persists on its specialized 
habitat, at least in part, due to a lack of competition from taller or 
more vigorous plants. Rollins (1963, p. 17) found that, while 
Leavenworthia alabamica and L. crassa grew normally and produced seed 
in a portion of an experimental plot where weeds were removed, plants 
from both species died in the portion of the plot where Poa annua 
(annual bluegrass) was allowed unrestricted growth. Lloyd (1965, pp. 
86-87) observed that plants of these two species competed poorly with 
the invading weed flora in abandoned agricultural fields.
    The Weches outcrops and surrounding glade sites show large seasonal 
variation in species dominance as a result of the shift from saturated 
soils in winter-spring to hard, dry soil in summer (George and Nixon 
1990, pp. 120-124). Singhurst (2012d, pers. comm.) described the Chapel 
Hill site as having bare spots on the tops of the glade with seasonal 
pools of water (similar to vernal pools). At this site the Texas golden 
gladecress would bloom, seed, dry out, and die back to be replaced in 
summer by drier, more succulent plants. Quarterman (1986 in George and 
Nixon 1990, p. 124) found that the thinner soils in Tennessee glades 
were dominated in spring by Leavenworthia spp., Minuartia patula 
(Pitcher's sandwort), and Sedum pulchellum (stonecrop), and that 
Sporobolus vaginiflorus (poverty dropseed) would be the dominant grass 
on these soils in summer. Singhurst observed similar species 
composition shifts at Texas golden gladecress sites (Singhurst 2012e, 
pers. comm.; Singhurst 2012h, pers. comm.). Even with this seasonal 
shift, there are a number of characteristic herbaceous species that 
occur in association with Texas golden gladecress (Table 1) (Bridges 
1988, p. II-35; TNC 2003, p. 4; Carr 2006, p. 4). Carr (2006, p. 2) 
found that Texas golden gladecress at the Chapel Hill site shared the 
rocky outcrop ledges with a sparse covering of Eleocharis sp. (spike 
sedge), Clinopodium arkansanum (Ozark savory), and an unidentified 
moss. He described the 40-50 Texas golden gladecress plants as 
``growing on or among clumps of moss on these soggy, unshaded 
glauconite exposures.''

        Table 1--Characteristic Flora of Weches Outcrops in Texas
------------------------------------------------------------------------
              Scientific name                        Common name
------------------------------------------------------------------------
                      Primary Characteristic Herbs
------------------------------------------------------------------------
Sedum pulchellum *........................  stonecrop.
Clinopodium arkansanum *..................  Ozark savory.
Minuartia patula *........................  Pitcher's sandwort.
Minuartia drummondii *....................  Drummond sandwort.
Valerianella radiata *....................  beaked cornsalad.
Isoetes butleri...........................  Butler's quillwort.
Allium drummondii *.......................  Drummond wild-garlic.
Portulaca oleracea *......................  common purslane.
Phemeranthus parviflorus *................  sunbright.
Eleocharis occulata *.....................  limestone spikerush.
------------------------------------------------------------------------
                      Some Other Potential Species
------------------------------------------------------------------------
Erigeron sp...............................  fleabane.
Lesquerella pallida.......................  white bladderpod.
Desmanthus illinoensis....................  Illinois bundleflower.
Euphorbia dentate.........................  toothed spurge.
Croton monanthogynus......................  doveweed.
Dalea purpurea............................  prairie clover.
Houstonia spp.............................  Bluetts.
Nassella leucotricha......................  Texas wintergrass.
Boutelous curtipendula....................  sideoats grama.
Eleocharis compressa......................  flat-stemmed spikerush.
Sporobolus vaginiflorus*..................  poverty dropseed.
Thelesperma filifolium....................  slender greenthread.

[[Page 56087]]

 
Arnoglossum plantagineum..................  groovestem Indian plantain.
Plantago virginica........................  Virginia plantain.
Schizachyrium scoparium...................  little bluestem.
Polytaenia nuttallii......................  Nuttall's prairie parsley.
Onosmodium bejariense.....................  softhair marbleseed.
Liatris mucronata.........................  narrowleaf gayfeather.
Draba cuneifolia..........................  wedgeleaf draba.
Paronychia virginica......................  Whitlow wort.
Camassia scilloides.......................  wild hyacinth.
Zigadenus nuttallii.......................  Nuttall's death cama.
------------------------------------------------------------------------
                                  Algae
------------------------------------------------------------------------
Nostoc spp................................
Cyanobacteria.............................
------------------------------------------------------------------------
                         Frequent Woody Species
------------------------------------------------------------------------
Juniperus virginiana......................  eastern redcedar.
Pinus taeda...............................  loblolly pine.
Liquidambar styraciflua...................  sweetgum.
Cornus drummondii.........................  roughleaf dogwood.
Sideroxylon lanuginosum...................  gum bumelia.
Sophora affinis...........................  Texas sophora.
Quercus muhlengergii......................  Chinquapin oak.
Opuntia sp................................  prickly pear cactus.
Rhus glabra...............................  smooth sumac.
Rhamnus lanceolata........................  sanceleaf buckthorn.
------------------------------------------------------------------------
* Strong association with Texas golden gladecress sites.

    Therefore, based on the information above, we identify as essential 
physical features for Texas golden gladecress the following: Open, 
sunny exposures of Weches outcrops within Weches glade plant 
communities that are characterized by the species listed in Table 6, 
with relatively thin, rocky soils that are classified within 
Nacogdoches, Trawick, or Bub soils mapping units as identified by the 
Natural Resources Conservation Service soil survey maps. There must be 
bare, exposed bedrock on top-level surfaces or rocky ledges with very 
shallow depressions where rainwater can pool or seepage can collect.
Sites for Breeding, Reproduction, or Rearing (or Development) of 
Offspring
    In order to undergo successful reproduction, Texas golden 
gladecress requires sufficient moisture in late fall to germinate, and 
in winter-spring to support growth, flowering, and fruit production. At 
sites where the Texas golden gladecress depends on seeps to provide its 
water, there must be sufficient sediment or slope at elevations above 
its habitat site in order to catch rainfall and allow its slow 
percolation down to the plant's location. For those Texas golden 
gladecress plants growing in what appear to be micro-depressions that 
occur on fairly level spots in more gently sloping ground, the water 
supply may be more due to direct rainfall and dew collection. The 
species appears to be dependent on its seedbank for its continued 
existence, so habitat should not be subjected to activities that would 
remove the seedbank. Therefore, based on the information above, we 
identify as essential physical features needed for Texas golden 
gladecress' successful reproduction outcrops with intact hydrology and 
for which the surface features (sufficient sediment or slope at 
elevations above its habitat site) and gladecress seedbed are 
undisturbed.
Habitats Protected From Disturbance or Representative of the 
Historical, Geographic, and Ecological Distributions of the Species
    Texas golden gladecress has a restricted geographic distribution. 
Its historic range did not extend further than approximately 12 miles 
(19 km) from the most southeastern to the most northwestern documented 
locations and all documented occurrences were located within a 3.1 
mile-wide band (5 km-wide) around SH 21. The gladecress is also an 
endemic species, highly restricted to a specific habitat type that 
occurs in a scattered or patchy fashion across the landscape, with 
large areas of unsuitable habitat interspersed. The extant populations 
exhibit a high degree of isolation, being separated from each other by 
distances of 4.5 mi (7.2 km) and 7 mi (11.3 km), respectively, between 
the northern (Caney Creek Glade Site 1), central (Chapel Hill), and 
southern (Geneva) populations. All three populations are small in terms 
of areal extent and number of individual plants. Given their geographic 
isolation and small size, all of the sites are important for the 
conservation of the species.
    In addition, we have determined that Texas golden gladecress likely 
persists at the Caney Creek Glade Site 7, even though the species' 
presence has not been reconfirmed since 1988 due to lack of access onto 
this private property. Although the species' presence has not been 
verified since 1988, the glade at this population site was described as 
being intact in 1996 by a forestry consultant. This individual 
subsequently revisited the site in 2000 and noted that invasive plants 
were encroaching into the glade (Walker 2012, pers comm., p. 4). The 
Caney Creek Glade Site 7 is located approximately 0.75 mi (1.2 km) 
southeast of Caney Creek Glade Site 1.
    Combined, these sites represent the best habitat for the species 
throughout the geographic range. The loss of any of the known 
populations would reduce the potential to recover or conserve the 
species, thereby increasing the likelihood of extinction for the 
species across its range. Mapping of potential glade sites by TPWD 
(Singhurst 2012b, pers. comm.) shows that there is suitable habitat 
near the four extant populations that could provide sites for 
population expansion, thereby increasing the species' resiliency. These 
areas are representative of habitat across the species range and 
provide the potential for populations to spread, thereby enhancing 
recovery opportunities. Therefore, we do not believe that unoccupied 
areas outside of the geographic range are needed.
    The long-term effects of climate change on the species are less 
clear with regard to whether any additional areas outside of those 
discussed above are needed for the species' future. See the Factor A 
discussion of ``Climate Change'' in the listing determination for the 
Texas golden gladecress for a summary of projected climate changes in 
Texas and how these changes may affect the species. The information 
currently available on the effects of global climate change and 
increasing temperatures does not make sufficiently precise estimates of 
the location and severity of the effects. Nor are we currently aware of 
any climate change information specific to the habitat of Texas golden 
gladecress that would indicate what areas may become important to the 
species in the future. We do not believe the species can easily adapt 
and colonize new habitats due to its habitat specificity. Therefore, 
based on the best available scientific and commercial information, we 
are not identifying areas outside of those currently occupied as areas 
that may be suitable due to the effects of climate change.

Primary Constituent Elements for Texas Golden Gladecress

    Under the Act and its implementing regulations, we are required to 
identify the physical or biological features essential to the 
conservation of Texas golden gladecress in areas occupied at the time 
of listing, focusing on the features' primary constituent elements. 
Primary constituent elements are those specific elements of the 
physical or biological features that provide for a species' life-
history processes and are

[[Page 56088]]

essential to the conservation of the species.
    Based on our current knowledge of the physical or biological 
features and habitat characteristics required to sustain the species' 
life-history processes, we determine that the primary constituent 
elements specific to Texas golden gladecress are:
    (1) Exposed outcrops of the Weches Formation. Within the outcrop 
sites, there must be bare, exposed bedrock on top-level surfaces or 
rocky ledges with small depressions where rainwater or seepage can 
collect. The openings should support Weches Glade native herbaceous 
plant communities.
    (2) Thin layers of rocky, alkaline soils, underlain by glauconite 
clay (greenstone, ironstone, bluestone), that are found only on the 
Weches Formation. Appropriate soils are in the series classifications 
Nacogdoches clay loam, Trawick gravelly clay loam, or Bub clay loam, 
ranging in slope 1-15 percent.
    (3) The outcrop ledges should occur within the glade such that 
Texas golden gladecress plants remain unshaded for a significant 
portion of the day and trees should be far enough away from the 
outcrop(s) that leaves do not accumulate within the Texas golden 
gladecress habitat. The habitat should be relatively clear of nonnative 
and native invasive plants, especially woody species, or with only a 
minimal level of invasion.
    With this designation of critical habitat, we intend to identify 
the physical or biological features essential to the conservation of 
the species, through the identification of the features' primary 
constituent elements sufficient to support the life-history processes 
of the species.

Special Management Considerations or Protections for Texas Golden 
Gladecress

    When designating critical habitat, we assess whether the specific 
areas within the geographical area occupied by the species at the time 
of listing contain features that are essential to the conservation of 
the species and which may require special management considerations or 
protection.
    Texas golden gladecress may require special management 
considerations or protection to reduce the following threats: quarrying 
or other excavations, including pipeline installations; building over 
the top of occupied glades; construction or excavation upslope that 
alters water movement (sheet flow or seepage) downslope to Texas golden 
gladecress sites; pine tree plantings near glades; and invasive (native 
and nonnative) plants. Refer to the five-factor analysis in the listing 
determination for the Texas golden gladecress for more information on 
these threats.
    The features essential to the conservation of Texas golden 
gladecress may require special management considerations or protection 
to reduce the following threats:
     Actions that remove the soils and alter the surface 
geology of the glades;
     Building or paving over the glades;
     Construction or excavation upslope that alters water 
movement (sheet flow or seepage) downslope to Texas golden gladecress 
sites;
     Planting trees adjacent to the edges of an outcrop 
resulting in shading of the glade and accumulations of leaf litter and 
tree debris;
     Encroachment by nonnative and native invading trees, 
shrubs, and vines that shade the glade;
     The use and timing of application of certain herbicides 
that can harm Texas golden gladecress mature plants and seedlings; and
     Fence placement such that livestock are likely to be 
directed through gladecress sites where habitat and plants may be 
trampled.
    Management activities that could ameliorate these threats include 
(but are not limited to):
     Avoiding Weches glades when planning the location of 
quarries, well pads, roads, other facilities or structures, or pipeline 
routes, through glade complexes;
     Avoiding above-ground construction or excavations in 
locations that would interfere with natural water movement to Texas 
golden gladecress habitat sites;
     Locating suitable habitat and determining the presence or 
absence of the species and identifying areas with glade complexes and 
protecting or restoring as many complexes as possible;
     Extending outreach to all landowners, including private 
and State, to raise awareness of the plant and its specialized habitat;
     Providing technical or financial assistance to landowners 
to help in the design and implementation of management actions that 
protect the plant and its habitat;
     Avoiding pine tree plantings near glades; and
     Brush removal, to maintain an intact native glade 
vegetation community.

Criteria Used To Identify Critical Habitat for Texas Golden Gladecress

    As required by section 4(b)(2) of the Act, we used the best 
scientific and commercial data available to designate critical habitat. 
We reviewed available information pertaining to the habitat 
requirements of this species. In accordance with the Act and its 
implementing regulation at 50 CFR 424.12(e), we considered whether 
designating additional areas--outside those currently occupied as well 
as those occupied at the time of listing--are necessary to ensure the 
conservation of the species. We are not designating any areas outside 
the geographical area occupied by the species because occupied areas 
are sufficient for the conservation of the species.
    When determining critical habitat boundaries within this final 
rule, 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 for Texas golden gladecress 
and the Neches River rose-mallow. 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. Therefore, a Federal action 
involving these lands will 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.
    To guide what would be considered needed for the conservation of 
the species, we relied upon recommendations in a conservation plan for 
the San Augustine Glades developed by The Nature Conservancy of Texas 
(TNC 2003, p. 8). This served as a basis for the number of populations 
considered necessary for the conservation of Texas golden gladecress. 
This plan came from The Nature Conservancy's structured conservation 
planning process that relied on a science team with expertise in the 
habitats and flora of East Texas. The plan was developed with input 
from representative experts from academia, botanical institutions, and 
Federal and State agencies. We consider this plan the best available 
scientific information to determine what is essential for the 
conservation of the Texas golden gladecress.
    This conservation plan concluded that at least eight viable (self-
sustaining, ecologically functioning) populations of Texas golden 
gladecress, containing an average of 500 individuals each, at least one 
out of every five years, was the

[[Page 56089]]

target conservation goal for the species (TNC 2003, pp. 8, 12). We 
currently know of three extant populations that have been monitored as 
recently as 2012, and a fourth population site that we consider to 
still be in existence because the habitat has not been destroyed, 
within the areas occupied by the species (see ``Mapping Texas Golden 
Gladecress Critical Habitat'' section below for how we mapped the 
occupied areas). We used information provided by a TPWD botanist to 
evaluate whether the four areas might be sufficient to support eight 
viable populations of the species (Singhurst 2012a, pers. comm.; 
Singhurst 2012b, pers. comm.). The maps provided by this species expert 
identified potential glades within these areas by using: soil map 
units; a time series of aerial photographs that depicted changes in 
land cover; and personal experience and expertise with the species, the 
habitat, and this area of East Texas (Singhurst 2012b, pers. comm.). 
These sites occur in discrete areas across the entire historic range of 
the species and include sites that represent the different landscape 
settings (open, rocky, grazed pasture on seasonally seepy Weches 
outcrops at Caney Creek Glade Site 1; on very small, scattered 
exposures of glauconite within a more dense cover of herbaceous species 
at the Chapel Hill site; and in an open, grazed glade at the Geneva 
site) and soil types (Nacogdoches, Trawick, and Bub soil series) that 
have been historically documented at Texas golden gladecress 
occurrences.
    Based on this analysis and our site visits, we determined that the 
occupied areas contain suitable habitat (with special management) to 
expand current populations and support additional populations of Texas 
golden gladecress to meet the conservation goals for the species. We 
judge there to be suitable sites within the occupied areas that can be 
used for natural expansion of existing populations or possible future 
augmentation if needed and advised during future recovery planning and 
implementation. The habitat in the four occupied areas is sufficient 
for attaining the goal of eight viable populations throughout the 
geographic range of the species. Therefore, additional areas as 
critical habitat outside of the currently occupied geographic areas 
would not be essential for the conservation of the species, and we have 
not identified any additional areas.
Areas Occupied by the Texas Golden Gladecress
    As required by section 3(5)(A)(i) of the Act, for the purpose of 
designating critical habitat for Texas golden gladecress, we defined 
the geographic area currently occupied by the species. Generally, we 
define occupied areas as those where recent surveys in 2012 confirmed 
the species was present (Singhurst 2012f, pers. comm.). For one area, 
occupancy by the species has not been confirmed since 1988 (TXNDD 
2012b, entire); however, there have been no recent surveys due to lack 
of access to the properties. For the purposes of designation of 
critical habitat, we are considering this area to be currently occupied 
because the species was known from this area in the past and the 
habitat conditions that support the species appear intact (based on 
aerial imagery), except for the growth of some woody vegetation in some 
areas. In total, we found four areas currently occupied by the Texas 
golden gladecress at the time it is listed.
Areas Unoccupied at the Time of Listing
    We considered whether there were any specific areas outside the 
geographic area found to be occupied by the Texas golden gladecress 
that are essential for the conservation of the species as required by 
section 3(5)(A)(ii) of the Act. We evaluated whether there was 
sufficient area for the conservation of the species within the occupied 
areas determined above. As a result of that evaluation, we concluded 
that the habitat within the four occupied areas is sufficient for 
attaining the goal of eight viable populations throughout the 
geographic range of the species. Therefore, additional areas as 
critical habitat outside of the currently occupied geographic areas 
would not be essential for the conservation of the species and we have 
not identified any areas that were unoccupied at the time of listing.
Mapping Texas Golden Gladecress Critical Habitat
    To determine the boundaries of critical habitat units around the 
species areas occupied by the species, we used a geographic information 
system (GIS) to overlay the appropriate soil maps over the occupied 
areas. The Texas golden gladecress is restricted to the Weches 
Formation, being found on only three soil map units: Nacogdoches clay 
loam 1-5 percent slope (NeE); Trawick gravelly clay loam 5-15 percent 
slope (TuD); and Bub clay loam 2-5 percent slope (BuB). We drew the 
boundaries around contiguous segments of these soil mapping units from 
the online San Augustine and Sabine County's soils survey (http://WebSoilSurvey.nrcs.usda.gov/app/WebSoilSurvey.aspx) encompassing the 
occupied areas to form the boundary of the four critical units by using 
the edge of the soil type layer.
    When determining critical habitat boundaries, we made every effort 
to avoid including developed areas such as lands covered by buildings, 
pavement, filled areas adjacent to paved roads, unpaved roads, and 
other structures because such lands lack physical or biological 
features for Texas golden gladecress. 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 final 
rule and are not designated as critical habitat. Therefore, 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.
    The critical habitat designation is defined by the map or maps, as 
modified by any accompanying regulatory text, presented at the end of 
this document in the rule portion. 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 http://www.regulations.gov at Docket No. FWS-R2-ES-2013-0027, on our Internet 
sites http://www.fws.gov/southwest/es/ElectronicLibrary/ElectronicLibrary_Main.cfm, and at the field office responsible for 
the designation (see FOR FURTHER INFORMATION CONTACT above).
    We are designating as critical habitat lands that we have 
determined are occupied at the time of listing and contain sufficient 
physical or biological features to support life-history processes 
essential for the conservation of the Texas golden gladecress.
    Four units were designated based on sufficient elements of physical 
or biological features being present to support Texas golden gladecress 
life processes. Some units contained all of the identified elements of 
physical or biological features and supported multiple life processes. 
Some units contained only some elements of the physical or biological 
features necessary to support the Texas golden gladecress particular 
use of that habitat.

[[Page 56090]]

Final Critical Habitat Designation for Texas Golden Gladecress

    We are designating four units as critical habitat for Texas golden 
gladecress. The critical habitat areas described below constitute our 
best assessment at this time of areas that meet the definition of 
critical habitat. Those four units are: (1) Geneva; (2) Chapel Hill; 
(3) Southeast Caney Creek Glades; and (4) Northwest Caney Creek Glades. 
The approximate area of each critical habitat unit is shown in Table 2.

                     Table 2--Designated Critical Habitat Units for Texas Golden Gladecress
----------------------------------------------------------------------------------------------------------------
                                                                                                   Total size of
                      Critical habitat unit                         Private ac    State ac  (ha)   all units ac
                                                                       (ha)                            (ha)
----------------------------------------------------------------------------------------------------------------
1. Geneva.......................................................       381 (154)            7(3)       388 (157)
2. Chapel Hill..................................................        147 (59)          3 (1)*        150 (61)
3. Southeast Caney Creek Glades.................................         37 (15)           3 (1)         40 (16)
4. Northwest Caney Creek Glades.................................       767 (310)           8 (4)       775 (314)
                                                                 -----------------------------------------------
    TOTAL.......................................................     1,332 (539)          21 (9)     1,353 (548)
----------------------------------------------------------------------------------------------------------------
*County owned.
Note: Area sizes may not sum due to rounding.

    We present brief descriptions of all units, and the reasons why 
they meet the definition of critical habitat for Texas golden 
gladecress, below.

Unit 1: Geneva

    Unit 1 consists of 388 ac (157 ha) of private and State land 
located in northwest Sabine County, Texas. The unit is located 1.5 mi 
(2.3 km) south of Geneva, Texas, and 4.8 mi (7.7 km) north of Milam, 
Texas, and is bisected by SH 21. This unit is occupied at the time of 
listing and contains some of the physical or biological features 
essential to the conservation of the species, including open, sunny 
areas of Weches outcrops (glauconite exposures); some native Weches 
glade plant species characteristic of Texas golden gladecress sites 
(see Table 1); and Nacogdoches and Trawick soils. Approximately 2 
percent (7.3 ac (3 ha)) of the land is State-owned and managed TXDOT 
ROW, and the Geneva Site Texas golden gladecress population occurs, in 
part, within this ROW. The remaining 98 percent of the land is 
privately owned. The area directly adjacent to the ROW Texas golden 
gladecress population has been cleared of woody vegetation within the 
recent past but is not fenced, so future land use is unknown. The 
geology and soils (primary constituent element 1 and 2) occur 
throughout the unit and aerial photography indicates that at least 
three other small, scattered open glades (as identified by TPWD) occur 
within the critical habitat unit.
    The physical or biological features essential to the conservation 
of the species in this unit may require special management 
considerations or protection to address threats of woody plant invasion 
into open glades, possible changes in land use, including planting of 
loblolly or long-leaf pine to establish tree plantations, potential 
agricultural herbicide use to control woody plants, and destruction of 
the features by excavation, pipeline construction, or buildings.

Unit 2: Chapel Hill

    Unit 2 consists of 150 ac (61 ha) of privately owned land, with one 
county road ROW, in northwestern San Augustine County, Texas. This unit 
is located 1.0 mi (1.6 km) south of SH 21, due west of the San 
Augustine-Sabine County line, and lies alongside County Road (CR) 151. 
This unit is linear in shape, running from southeast to northwest. 
Aside from CR 151, all other land in Unit 2 is privately owned. Current 
land cover appears to be approximately 70 percent woody cover; much of 
the forest being rows of pine trees. This unit was occupied at the time 
of listing by a population that grows on a privately owned, unfenced 
tract of land that measures approximately 0.25 ac (0.1 ha) in size. The 
geology and soils primary constituent elements occur throughout the 
unit, and aerial photography indicates that at least two other small, 
scattered, open glades (as identified by TPWD) occur within the 
critical habitat unit.
    The features essential to the conservation of the species in this 
unit may require special management considerations or protection to 
address threats of woody plant invasion into open glades throughout the 
unit, conversion of pasture to pine plantations, pipeline construction, 
and herbicide application.

Unit 3: Southeast Caney Creek Glades

    Unit 3 consists of 39.9 ac (16.2 ha) just southeast of the City of 
San Augustine, San Augustine County, Texas. Approximately 99 percent of 
the land within this unit is privately owned, with the other 1 percent 
being county ROW under the management of TXDOT. This unit is located 
0.8 mi (1.2 km) south from SH 21 near San Augustine, Texas, along the 
north side of FM 3483. This unit is located across Sunrise Road from a 
glauconite quarry. The presence of the Texas golden gladecress plants 
at this site was last confirmed in the late 1980's. The glade at this 
population site was described as being intact in 1996 by a forestry 
consultant, who subsequently revisited the site in 2000 and noted that 
invasive plants were encroaching into the glade (Walker 2012, pers 
comm., p. 4). Based on these records from the site, and the lack of 
alteration to the substrate as assessed from remote imagery, we 
determined that the site still contains all the physical or biological 
features; therefore, we consider the unit occupied at the time of 
listing.
    The features essential to the conservation of the species in this 
unit may require special management considerations or protection to 
address threats of woody plant invasion into the natural prairie and 
glade habitat, and pipeline construction.

Unit 4: Northwest Caney Creek Glades

    Unit 4 consists of 775.3 ac (313.7 ha) that extends in a diagonal 
line from northeast to southwest, to the north and south of SH 21 just 
east of the City of San Augustine, San Augustine County, Texas. The 
unit is approximately 0.7 mi (1.1 km) wide. This unit is occupied at 
the time of listing. The geology and soils primary constituent elements 
occur throughout the unit and aerial photography indicates that at 
least five other small, scattered, open glades (as identified by TPWD) 
occur within the critical habitat unit. Approximately 1

[[Page 56091]]

percent (7.8 ac) of the land is State-owned and managed ROW by the 
TXDOT. The remaining 99 percent is privately owned. Approximately 75-80 
percent of the southern portion of Unit 4 is forested. Historically, 
this unit was occupied by four of the eight known occurrences of Texas 
golden gladecress; however, three of the four have been lost to 
glauconite quarrying activities.
    The features essential to the conservation of the species in this 
unit may require special management considerations or protection to 
address threats of glauconite mining, woody plant invasion into the 
natural prairie and glade habitat, and pipeline construction.

Physical or Biological Features Neches River Rose-Mallow

    We derive the specific physical or biological features essential 
for Neches River Rose-mallow from studies of this species' habitat, 
ecology, and life history as described in the Critical Habitat section 
of the proposed rule to designate critical habitat published in the 
Federal Register on September 11, 2012, (77 FR 55968), and in the 
information presented below. Additional information can be found in the 
final listing rule published in today's Federal Register. We have 
determined that Neches River rose-mallow requires the following 
physical or biological features:
Space for Individual and Population Growth and for Normal Behavior
    Neches River rose-mallow is endemic to open habitats in wetlands of 
the Pineywoods of East Texas (Gould 1975, p. 1; Correll and Johnston 
1979, p. 1). The Neches River rose-mallow is found within seasonally 
flooded river floodplains as described by Diggs et al. (2006), where 
the natural bottomlands occupy flat, broad portions of the floodplains 
of major rivers and are seasonally inundated. Associated flood-tolerant 
species in this habitat include of Quercus sp. (oak), Liquidambar 
styraciflua (sweetgum), Ulmus americana (American elm), Nyssa biflora 
(swamp tupelo), and Acer rubrum (red maple) (Diggs et al. 2006, p. 
103). Habitat is characterized as sloughs, oxbows, terraces, and sand 
bars, and habitat found along depressional or low-lying areas of the 
Neches, Sabine, and Angelina River floodplains and Mud and Tantabogue 
Creek basins (Warnock 1995, p. 11). Sites include both intermittent and 
perennial wetlands with plants located within 3.2 ft (1.0 m) of 
standing water, depending on current drought and precipitation levels 
(Warnock 1995, p. 14). Water levels at each site are variable, 
depending on proximity to water, amount of rainfall, and floodwaters. 
Habitat elevations range from 170 to 265 ft (51-80 m) above sea level 
(Warnock 1995, p. 13).
    Warnock (1995) noted that seed dispersal is likely by water and 
Scott (1997, p. 5) also stated that seed dispersal appears to be 
entirely water dependent. While water-mediated seed dispersal of the 
Neches River rose-mallow is highly likely, it is not known that flowing 
water is required for downstream dispersal of Neches River rose-mallow 
seeds. Rivers of East Texas tend to overflow onto banks and floodplains 
(Diggs et al. 2006, p. 78), especially during the rainy season, thereby 
providing an avenue for seed dispersal. Research has not been done to 
identify methods of seed dispersal upstream; however, avian species may 
facilitate this process.
    Based on the best scientific and commercial data, we identify 
intermittent and perennial, open waters in the Neches, Sabine, Angelina 
River basins and Mud and Tantabogue Creeks, with areas of seasonal or 
permanent inundation with native woody vegetation, as an essential 
physical or biological feature for the species.
Food, Water, Air, Light, Minerals, or Other Nutritional or 
Physiological Requirements
    The Neches River rose-mallow is typically found in open, flat areas 
of wetlands with hydric, alluvial soils of the Inceptisol or Entisol 
orders (Gould 1975, p. 10; Warnock 1995, pp. 11, 13; Diggs et al. 2006, 
pp. 46, 79) that are frequently associated with flooded clay loams. 
Although the soils are generally water-saturated, they can often be 
surficially dry. Intermittent wetlands are inundated during the winter 
months but become dry during the summer months (Warnock 1995, p. 11). 
Rivers of East Texas tend to overflow onto banks and floodplains (Diggs 
et al. 2006, p. 78), especially during the rainy season, thereby 
dispersing seed. Precipitation in Texas increases from the west to the 
east, making East Texas an area with comparatively higher annual 
precipitation, generally ranging from 35 to 50 in (89-127 cm) (Gould 
1975, p. 10).
    Many wetland species, including the Neches River rose-mallow, are 
adapted to highly variable rates of water flow, including seasonal high 
and low flows, and occasional floods and droughts. Normal habitat 
conditions include a cyclical pattern of wet winters and dry summers so 
the Neches River rose-mallow may have some tolerance of drought; 
however, the species may not be able to thrive in an environment with a 
higher frequency and intensity of droughts. Periods of drought may 
increase the susceptibility of sites to soil compaction from hogs and 
cattle, invasion from nonnative species, and herbivory. Optimal habitat 
conditions for Neches River rose-mallow include intermittent or 
perennial wetlands that can be variable throughout the year, often 
becoming surficially dry during the summer and wet during the winter or 
might be exposed to water year-round.
    Regarding the Neches River rose-mallows' light requirements, an 
open canopy is typical within Neches River rose-mallow habitat (Warnock 
1995, pp. 11, 13), but plants also grow in partial sun (as is the case 
at SH 204 ROW). Sunlight is needed for blooming as the blooming period 
may only last 1 day (Snow and Spira 1993, p. 160).
    The growth of woody and weedy vegetation was historically 
maintained by natural fires that would occur every 1 to 3 years in East 
Texas (Landers et al. 1990, p. 136; Landers 1991, p. 73) thereby 
controlling the overgrowth of longleaf and loblolly pine, as well as 
nonnative species. Humans later used fire to suppress overgrowth; 
however, in the more recent past, human's active fire suppression has 
allowed native species including sweetgum, oaks, Carya sp. (hickories), 
Diospyros virginiana (common persimmon), and Magnolia grandiflora 
(southern magnolia) to invade the natural pine forests (Daubenmire 
1990, p. 341; Gilliam and Platt 1999, p. 22) and this woody overgrowth 
has reduced the open canopy needed by the Neches River rose-mallow. 
Lack of fire increases the opportunity for nonnative species, such as 
Triadica sebifera (Chinese tallow), to invade these sites and this 
invasion has become one of the most significant threats to the Neches 
River rose-mallow. Lack of fire has provided increased opportunities 
for this species to invade all Neches River rose-mallow sites.
    Therefore, based on the information above, we identify hydric 
alluvial soils of seasonally or permanently inundated wetlands and 
native woody or associated herbaceous vegetation, largely with an open 
canopy providing partial to full sun exposure with low levels or no 
nonnative species to be a physical or biological feature for the Neches 
River rose-mallow.
Sites for Breeding, Reproduction, or Rearing (or Development) of 
Offspring
    The Neches River rose-mallow likely has similar seed buoyancy and 
seed dispersal mechanisms to Hibiscus

[[Page 56092]]

moscheutos whose seeds can remain buoyant for several hours (Warnock 
1995, p. 20; Scott 1997, p. 8; Reeves 2008, p. 3) and for which seed 
dispersal appears to be entirely water dependent (Scott 1997, p. 5). 
Given this information and that Neches River rose-mallow prefers 
depressional or palustrine areas, seed dispersal into sloped areas with 
higher elevations, like uplands, is not anticipated. Downstream or 
adjacent portions of streams or creeks of occupied Neches River rose-
mallow sites may provide connectivity and new opportunities for 
reproduction. Long-distance seed dispersal ranges and upstream 
dispersal methods are unknown, but may be facilitated by avian species. 
Therefore, we identify flowing water as the likely agent for seed 
dispersal to adjacent or downstream habitat as a physical or biological 
feature for the Neches River rose-mallow.
    The Neches River rose-mallow is a perennial that dies back to the 
ground every year and resprouts from the base; however, still 
maintaining aboveground stems. Longevity of the species is unknown, but 
it may be long-lived. Cross-pollination occurs (Blanchard 1976, p. 38) 
within the Neches River rose-mallow populations and the species has 
high reproductive potential (fecundity). The number of flowers and 
fruits per plant were documented during the TPWD's annual monitoring of 
the Neches River rose-mallow along SH ROWs. The species produced an 
average of 50 fruits per plant, but seed viability and survivorship are 
not known (Poole 2012a, pers. comm.).
    Potential pollinators of the Neches River rose-mallow may include, 
but are not limited to, the common bumblebee (Bombus pensylvanicus), 
Hibiscus bee (Ptilothrix bombiformis), moths, and the scentless plant 
bug Niesthrea louisianica (Klips 1995, p. 1471; Warnock 1995, p. 20; 
Warriner 2011, pers. comm.). Both H. laevis and H. moscheutos are 
pollinated by common bumblebees and the Hibiscus bee (Snow and Spira 
1993, p. 160; Klips 1999, p. 270). The solitary Hibiscus bee prefers 
gently sloping or flat areas with sandy or sandy-loam soils for nesting 
areas (Vaughan et al. 2007, pp. 25-26; Black et al. 2009, p. 12), and 
female bees will excavate nest cavities in elevated, hard packed dirt 
roadways or levees near stands of Hibiscus (in this case H. palustris) 
and standing water (Rust 1980, p. 427).
    Members of the genus Bombus (family Apidae) are social bees, 
predominantly found in temperate zones, nesting underground (Evans et 
al. 2008, p. 6) in sandy soils (Cane 1991, p. 407). Bumblebees nest in 
small cavities, often underground in abandoned rodent nests, grass 
(Black et al. 2009, p. 12), or in open, grassy habitat (Warriner 2012a, 
pers. comm.). Other aboveground-nesting bees that may potentially 
pollinate the Neches River rose-mallow may include carpenter, mason, 
and leaf cutter bees that nest in dead snags or twigs or standing dead 
wood (Warriner 2012a, pers. comm.). Maximum foraging distances of 
solitary and social bee species are 492 to 1,968 ft (150 to 600 m) 
(Gathmann and Tscharntke 2002, p. 762) and 263 to 5,413 ft (80 to 1,650 
m) (Walther-Hellwig and Frankl 2000, p. 244), respectively. The 
scentless plant bug is a member of the Rhopalidae family found 
specifically in association with various members of the Malvaceae 
family. This species is known to deposit eggs on both the vegetative 
and reproductive parts of mallow plants (Spencer 1988, p. 421). Holes 
have been eaten in floral parts of Neches River rose-mallow plants 
suggesting that the scentless plant bug may be a pollinator as well as 
a consumer of the Neches River rose-mallow. Although we have some 
anecdotal information on the species' potential habitat as well as 
other Hibiscus species needs for pollination, we do not have specific 
information for the Neches River rose-mallow. Therefore, the physical 
or biological features for the Neches River rose-mallow were not based 
on the current pollinator information.
Habitats Protected From Disturbance or Representative of the 
Historical, Geographic, and Ecological Distributions of the Species
    The natural geographic range of the Neches River rose-mallow is 
within Trinity, Houston, Harrison, and Cherokee Counties, Texas. In 
addition, populations of Neches River rose-mallow have been introduced 
within their natural geographic range on Federal lands in Houston 
County and on private land in Nacogdoches County. In total, there are 
12 occurrences of Neches River rose-mallow; however, 11 of these are 
within the known geographic range of the species, and, as of October 
2011, are considered occupied by the Neches River rose-mallow.
    Several Neches River rose-mallow populations are found along SH 
ROWs, including SH 94 in Trinity County, SH 204 in Cherokee County, and 
SH 230 in Houston County. These populations are separated from one 
another and are considered distinct. Adjacent lands to the SH 230 ROW 
were purchased by the Texas Land Conservancy in 2004 (The Texas Land 
Conservancy 2011), an organization previously known as the Natural 
Areas Preservation Association. The Neches River rose-mallow plants in 
this site, referred to as Lovelady, are part of the population that 
included the Neches River rose-mallow plants in the SH 230 ROW. In the 
past, several subpopulations existed along multiple portions of the SH 
204 ROW, however several of these subpopulations were not found in 2011 
even though recent drought conditions have allowed surveyors to count 
Neches River rose-mallow plants in parts of sites that were not 
accessible in the past because the sites were too wet.
    The Davy Crockett NF, Houston County, Texas, contains four extant 
sites of the Neches River rose-mallow; three introduced and one 
natural. The one natural population is found in Compartment 55 located 
west of the Neches River. This site is considered the most robust of 
all known extant populations (Poole 2011c, p. 3) and is almost entirely 
unaltered from its originally observed state as a seasonally wet, 
flatwood pond, with vegetation being distinctly zoned (TXNDD 2012a, p. 
29).
    The remaining Neches River rose-mallow sites are primarily on 
private land, although in several places they extend onto SH ROW. These 
include the (1) Mill Creek Gardens (also known as Hayter Blueberry 
Farm), Nacogdoches County; (2) Harrison County site in Harrison County; 
(3) Camp Olympia, Trinity County; (4) Champion, Trinity County. 
Portions of Lovelady (adjacent to SH 230 ROW), Houston County, and 
Boggy Slough (also part of SH 94 ROW), Trinity County, are also on 
private land. The Mill Creek Gardens population was introduced by the 
Stephen F. Austin State University Mast Arboretum who planted 96 Neches 
River rose-mallow plants at this site (Scott 1997, pp. 6-7). The Boggy 
Slough site consists of several scattered Neches River rose-mallow 
subpopulations that are located in close proximity to one another. The 
Boggy Slough subpopulations and the SH 94 ROW population are separated 
by no more than 1.0 km (3,280 ft) and these two sites likely constitute 
a single, larger population, sharing pollinators, and exchanging 
genetic material (NatureServe 2004, p. 6; Poole 2011c, p. 2). One 
property was purchased in 2004 by The Texas Land Conservancy (The Texas 
Land Conservancy 2011), this site is referred to as Lovelady. The site 
at Harrison County, Camp Olympia, and Champion were not observed in 
2011; however, using aerial imagery and the best scientific and 
commercial data available we determined that these sites contain the 
physical or biological

[[Page 56093]]

features essential to the Neches River rose-mallow.
    East Texas is subtropical with a wide range of extremes in weather 
(Diggs et al. 2006, p. 65). The native vegetation of this region 
evolved with, and is adapted to, recurrent temperature extremes (Diggs 
et al. 2006, p. 67). The Pineywoods region of East Texas is vulnerable 
to even small climatic shifts because it is ``balanced'' on the eastern 
edge of a dramatic precipitation gradient. Temperature increases that 
are projected in climate change scenarios will likely be associated 
with increases in transpiration and more frequent summer droughts. 
Decreased rainfall may result in an eastward shift in the forest 
boundary and replacement of the Pineywoods forest with scrubland (Diggs 
et al. 2006, p. 80). There may also be a northerly shift of southerly 
species based on climate models that predict increasing temperatures 
and, therefore, increasing evapotranspiration and decreasing regional 
precipitation and soil moisture (Diggs et al. 2006 p. 73). In October 
2011, the Service observed that all known Neches River rose-mallow 
sites were impacted by extreme drought conditions.
    Predictions of climate change are variable, and effects from 
climate change on the Neches River rose-mallow are not fully 
understood. The information currently available on the effects of 
global climate change and increasing temperatures does not make 
sufficiently precise estimates of the location and severity of the 
effects specific to East Texas. Further, we are not currently aware of 
any climate change information specific to the habitat of the Neches 
River rose-mallow that would indicate what areas may become important 
to this species in the future. Therefore, we are not identifying any 
areas outside of those currently occupied as areas that may be suitable 
for Neches River rose-mallow due to the effects of climate change.

Primary Constituent Elements for Neches River Rose-Mallow

    Under the Act and its implementing regulations, we are required to 
identify the physical or biological features essential to the 
conservation of Neches River rose-mallow in areas occupied at the time 
of listing, focusing on the features' primary constituent elements. 
Primary constituent elements are those specific elements of the 
physical or biological features that provide for a species' life-
history processes and are essential to the conservation of the species.
    Based on our current knowledge of the physical or biological 
features and habitat characteristics required to sustain the species' 
life-history processes, we determine that the primary constituent 
elements specific to the Neches River rose-mallow are:
    (1) Intermittent or perennial wetlands within the Neches, Sabine, 
and Angelina River floodplains or Mud and Tantabogue Creek basins that 
contain:
    (a) Hydric alluvial soils and the potential for flowing water when 
found in depressional sloughs, oxbows, terraces, side channels, or sand 
bars;
    (b) Native woody or associated herbaceous vegetation, largely with 
an open canopy providing partial to full sun exposure with low levels 
or no nonnative species.
    With this designation of critical habitat, we intend to identify 
the physical or biological features essential to the conservation of 
the species, through the identification of the features' primary 
constituent elements sufficient to support the life-history processes 
of the species.

Special Management Considerations or Protection for Neches River Rose-
Mallow

    When designating critical habitat, we assess whether the specific 
areas within the geographic area occupied by the species at the time of 
listing contain features that are essential to the conservation of the 
species and which may require special management considerations or 
protection.
    Threats to those features that define the primary constituent 
elements for the Neches River rose-mallow include: (1) Alteration of 
naturalized flow regimes through projects that require channelization; 
(2) water diversions or hydrologic change to streams and rivers; (3) 
encroachment from native woody riparian species and nonnative species; 
(4) detrimental roadside management practices including inappropriate 
frequency and timing of mowing during the species' blooming period; (5) 
herbivory and, (6) trampling from hog and cattle; and (7) drought.
    Special management considerations or protection are required within 
critical habitat areas to address these threats. Special management 
activities that could ameliorate these threats include, but are not 
limited to:
     Construction of cattle exclusion fencing to remedy 
herbivory at Lovelady to maintain plant survival and suitable habitat;
     Restoration of the cattle stock pond back to a natural 
flatwoods pond at Lovelady to restore the sites hydrology;
     Coordination with TXDOT to establish and continue 
effective management along ROWs for control of native woody species and 
nonnatives (including, but not limited to mowing, brush-hogging, or 
other hand-clearing techniques) and completion of these techniques only 
during the appropriate life stages of the Neches River rose-mallow to 
maintain open habitat;
     Coordination with the Angelina and Neches River Authority 
and consultation with the U.S. Army Corps of Engineers on the proposed 
construction of Lake Columbia Reservoir in Cherokee County to maintain 
hydrology at the downstream Neches River rose-mallow site;
     Consultation between the Service and the U.S. Army Corps 
of Engineers for any filling or draining of Federal jurisdictional 
wetlands to ensure maintenance of hydrology; and
     Clearing or burning on the Davy Crockett NF for control of 
Chinese tallow and to maintain an adequate level of openness in 
habitat.

Criteria Used To Identify Critical Habitat for Neches River Rose-Mallow

    As required by section 4(b)(2) of the Act, we use the best 
scientific data available to designate critical habitat. We reviewed 
all available information pertaining to the habitat requirements of the 
species. In accordance with the Act and its implementing regulation at 
50 CFR 424.12(e), we also considered whether designating additional 
areas--outside those currently occupied as well as those occupied at 
the time of listing--are necessary to ensure the conservation of the 
species. We are not designating any areas outside the geographic area 
currently occupied by the species because we found that the currently 
occupied areas are sufficient for the conservation of the species.
Areas Occupied by the Neches River Rose-Mallow
    For the purpose of designating critical habitat for the Neches 
River rose-mallow, we defined the geographic area currently occupied by 
the species as required by section 3(5)(A)(i) of the Act. Generally, we 
define occupied areas based on the most recent field surveys available 
in 2011 and recent reports and survey information from the Davy 
Crockett NF, TPWD, TXDOT, and observations by species experts (Miller 
2011, pers. comm.; TXNDD 2012a, entire). Currently occupied areas for 
the Neches River rose-mallow are found in Trinity, Houston, Cherokee, 
Nacogdoches, and Harrison Counties in East Texas.
    In total, we found 11 areas currently occupied by the Neches River 
rose-mallow. Two of these areas have not been verified since the late 
1970s and

[[Page 56094]]

mid-1990s. However, the best available scientific and commercial data 
does not indicate that these sites have been modified such that they no 
longer have the physical or biological features essential for the 
Neches River rose-mallow, so we consider them still occupied. Four of 
the critical habitat units currently occupied are introduction sites, 
three of which are located on Davy Crockett NF compartments and one is 
located at Mill Creek Gardens. The remaining five units support 
existing populations of Neches River rose-mallow and the plants were 
observed at each of these nine areas in 2011 (Creech 2011b, pers. 
comm.; Miller 2011, pers. comm.; TXNDD 2012a, entire).
    To guide what would be considered needed for the conservation of 
the species, we relied upon Pavlik's 1996 (pp. 127-155) Minimum Viable 
Population analysis tool, using the best scientific and commercial data 
on the species' life history and reproductive characteristics and input 
from a species expert (Poole 2012a, pers. comm.). Based on this 
analysis, we concluded that at least 10 viable populations of the rose-
mallow, containing an average of about 1,400 individuals each, was the 
conservation goal for the species.
    We considered whether the 11 occupied areas contained sufficient 
habitat to meet these conservation goals. Each area currently has one 
population, so the occupied areas are sufficient for the ten 
populations needed. However, the overall estimates of the number of 
individuals in each population are low, with the largest population 
estimated to contain 750 individuals at compartment 55 in October 2010 
(Allen and Duty 2010, p. 4). All of the known populations currently 
have much fewer individuals than the conservation goals. Considering 
the size and amount of suitable habitat in the areas occupied by the 
species (see ``Mapping Neches River Rose-mallow Critical Habitat'' 
section below for how we mapped the occupied areas), we found that the 
11 areas contain suitable habitat (with special management) to support 
increased population sizes to meet the conservation goals for the 
species.
    Based on this analysis and our site visits, we determined that the 
occupied areas contain suitable habitat (with future special 
management) to support larger populations of Neches River rose-mallow 
to meet the conservation goals for the species. We judge there to be 
suitable sites within the occupied areas that can be used for natural 
expansion of the populations during future recovery planning and 
implementation. The habitat in the 11 occupied areas is sufficient for 
attaining the goal of 10 viable populations throughout the geographic 
range of the species.
Areas Unoccupied by the Neches River Rose-Mallow
    We considered whether there were any specific areas outside the 
geographic area found to be occupied by the rose-mallow that are 
essential for the conservation of the species, as required by section 
3(5)(A)(ii) of the Act. We first evaluated whether there was sufficient 
area for the conservation of the species within the occupied areas 
determined above.
    We acknowledge there is some contradicting evidence regarding 
occupancy status for 3 of the 11 Units designated as critical habitat 
for the Neches River rose-mallow. We maintain Units 2, 9, and 11 are 
occupied by the species based on the presence of essential features and 
the absence of noticeable habitat disturbances since the last 
verifiable record of the species in each area. However, we 
alternatively designate Units 2, 9, and 11 under section 3(5)(A)(ii) of 
the Act because we consider them to be essential for the conservation 
of the Neches River rose-mallow, regardless of occupancy data. 
Including these units in the designation of critical habitat for the 
Neches River rose-mallow aligns with the conservation strategy for this 
species.
    Based on the Minimum Viable Population analysis and our site visits 
to the Neches River rose-mallow sites in 2011, we determined that the 
occupied areas contain suitable habitat (with future special 
management) to support larger populations of Neches River rose-mallow 
to meet the conservation goals for the species. The habitat in the 11 
occupied areas is sufficient for attaining the goal of 10 viable 
populations throughout the geographic range of the species. Therefore, 
identifying additional areas as critical habitat outside of the 
currently occupied geographic areas would not be essential for the 
conservation of the species, and we have not identified any additional 
areas.
Mapping Neches River Rose-Mallow Critical Habitat
    Once we determined the occupied areas, we next delineated the 
primary constituent elements. We estimated the area of habitat based on 
several key features determined through our 2011 field surveys and in 
past reports on habitat requirements. Since the Neches River rose-
mallow prefers depressional or palustrine areas, we used topographic 
maps to identify habitat within uplands or habitat that exhibited 
changes in slope where the species was not anticipated to occur due to 
lack of hydric soils and where seeds were not likely to be dispersed 
due to a lack of flowing water (i.e., the uplands). National Wetland 
Inventory (NWI) maps were used to determine habitat types within 
palustrine systems. All areas, when mapped with this layer in GIS, were 
associated with emergent, forested, or scrub-shrub, with one area 
having an undetermined bottom (open water). All critical habitat units 
are seasonally, permanently, or semi-permanently flooded, which is 
consistent with our observations and available data. Due to the high 
variation of alluvial and hydric soils of Neches River rose-mallow 
habitat, specific soil types were not mapped during this analysis but 
are still a general wetland indicator.
    To determine the boundaries of critical habitat units around the 
areas occupied by the species, we focused primarily on available canopy 
openness. We used topographic and NWI maps for confirmation of suitable 
habitat, then used aerial imagery available through Google Earth to 
determine dense cover in the habitat. We drew boundaries around the 
open areas that delineate the outer boundary of our critical habitat 
units. Critical habitat boundaries did not expand into heavily forested 
areas because those areas are generally too shady for the Neches River 
rose-mallow and were therefore not included.
    When determining critical habitat boundaries, we made every effort 
to avoid including developed areas covered by manmade structures 
including: Buildings; bridges; aqueducts; runways; roads; well pads; 
metering stations; other paved areas; unpaved roads; and the filled 
areas immediately adjacent to pavement. These structures lack the 
physical or biological features essential to the Neches River rose-
mallow. 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, as is the case with Unit 4, where 
the Neches River rose-mallow is known to occur in habitat beneath the 
SH 204 ROW overpass in areas that receive some sun. Any such lands 
inadvertently left inside critical habitat boundaries shown on the maps 
of this final rule have been excluded by text in the final rule and are 
not designated as critical habitat. Therefore, 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

[[Page 56095]]

or biological features in the adjacent critical habitat.
    The critical habitat designation is defined by the map or maps, as 
modified by any accompanying regulatory text, presented at the end of 
this document in the rule portion. 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 http://www.regulations.gov at Docket No. FWS-R2-ES-2013-0027, on our Internet 
sites http://www.fws.gov/southwest/es/ElectronicLibrary/ElectronicLibrary_Main.cfm, and at the field office responsible for 
the designation (see FOR FURTHER INFORMATION CONTACT above).
    We are designating as critical habitat lands that we have 
determined are occupied at the time of listing and contain sufficient 
physical or biological features essential in supporting life-history 
processes essential in the conservation of the Neches River rose-mallow 
that may require special management.
    Eleven units were designated based on sufficient elements of 
physical or biological features being present to support the Neches 
River rose-mallow life processes. Some units contained all of the 
identified elements of physical or biological features and supported 
multiple life processes. Some units contained only some elements of the 
physical or biological features necessary to support the Neches River 
rose-mallow particular use of that habitat.

Final Critical Habitat Designation for Neches River Rose-mallow

    We are designating 11 units as critical habitat for Neches River 
rose mallow. The critical habitat areas described below constitute our 
best assessment at this time of areas that meet the definition of 
critical habitat. Those 11 units are (1) SH 94 ROW, Trinity County; (2) 
Harrison County; (3) Lovelady, Houston County; (4) SH 204 ROW, Cherokee 
County; (5) Davy Crockett NF, Compartment 55, Houston County; (6) Davy 
Crockett NF, Compartment 11, Houston County; (7) Davy Crockett NF, 
Compartment 20, Houston County; (8) Davy Crockett NF, Compartment 16, 
Houston County; (9) Champion, Trinity County; (10) Mill Creek Gardens, 
Nacogdoches County; and (11) Camp Olympia, Trinity County. The 
approximate area of each critical habitat unit is shown in Table 3.

                        Table 3--Critical Habitat Units for the Neches River Rose-Mallow
----------------------------------------------------------------------------------------------------------------
                                             Private  ac                         Federal  ac     Size of Unit ac
          Critical habitat unit                 (ha)         State  ac  (ha)        (ha)              (ha)
----------------------------------------------------------------------------------------------------------------
1. SH 94 ROW/Boggy Slough...............         2.3 (0.9)         1.1 (0.5)                 0         3.4 (1.4)
2. Harrison County......................        20.8 (8.4)                 0                 0        20.8 (8.4)
3. Lovelady/(Near SH 230 ROW)...........         6.3 (2.5)                 0                 0         6.3 (2.5)
4. SH 204 ROW...........................                 0         8.7 (3.5)                 0         8.7 (3.5)
5. Davy Crockett NF, Compartment 55.....                 0                 0         3.8 (1.5)         3.8 (1.5)
6. Davy Crockett NF, Compartment 11.....                 0                 0         7.3 (3.0)         7.3 (3.0)
7. Davy Crockett NF, Compartment 20.....                 0                 0         3.4 (1.4)         3.4 (1.4)
8. Davy Crockett NF, Compartment 16.....                 0                 0       32.8 (13.3)       32.8 (13.3)
9. Champion.............................         2.9 (1.2)                 0                 0         2.9 (1.2)
10. Mill Creek Gardens (emergency             95.3 (38. 6)                 0                 0      95.3 (38. 6)
 spillway)..............................
11. Camp Olympia........................         0.2 (0.1)                 0                 0         0.2 (0.1)
                                         -----------------------------------------------------------------------
    Total Acreages for All Critical       ................  ................  ................      166.5 (67.0)
     Habitat Units:.....................
----------------------------------------------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.

    We present brief descriptions of all units, and reasons why they 
meet the definition of critical habitat for the Neches River rose-
mallow, below.

Unit 1: SH 94 ROW

    Unit 1 consists of 3.4 ac (1.4 ha) on both the 94 ROW and on 
private land in Trinity County. The unit was occupied at the time of 
listing and contains the physical or biological features essential to 
the conservation of the species: a wetland with hydric alluvial soils 
with the potential for flowing water and in some places, an open canopy 
with partial to full sun exposure. The unit parallels SH 94 for 0.1 mi 
(0.2 km) to the north, beginning about 0.06 mi (0.09 km) from the now 
abandoned rest stop. From the easternmost boundary, Unit 1 then extends 
onto private lands (about 0.06 mi (0.09 km)) where it ends, abutting a 
drainage ditch and levee. The unit parallels the ditch for about 0.8 mi 
(1.3 km) until vegetation becomes thick and the canopy cover increases. 
SH 94 ROW was first observed in 1955 with only herbarium specimens 
collected, and in 1968, over 100 plants were counted (TXNDD 2012a, pp. 
1-11). A total of 128 plants were counted in October 2011. Unit 1 is 
optimal habitat for the Neches River rose-mallow as indicated by the 
abundance of individual plants observed in fall 2011 despite drought 
conditions.
    The features essential to the conservation of the species in Unit 1 
may require special management considerations or protection to address 
the threats of: hydrologic changes on the private lands, management of 
nonnative species and native woody vegetation, and appropriate timing 
and frequency of mowing and maintenance along the ROW.

Unit 2: Harrison County

    Unit 2 is found at a location between 0.2-0.4 mi (0.3-0.6 km) north 
of Farm to Market Road 2625 in Harrison County. The unit was occupied 
at the time of listing and contains the physical or biological features 
essential to the conservation of the species. A specimen of the Neches 
River rose-mallow was first collected from the site in 1980 by Elray 
Nixon from SFASU and was originally thought to be H. laevis; however, 
the specimen was recently reexamined and confirmed as the Neches River 
rose-mallow (TXNDD 2012a, p. 12). Warnock (1995) provided only generic 
coordinates for the location of this site, but, using aerial 
photography, we were able to determine the location of this unit. Unit 
2 is composed of 8.4 ha (20.8 ac) of occupied habitat entirely on 
private land. The physical or biological features

[[Page 56096]]

essential to the conservation of the species include the large wetland 
or pond on hydric alluvial soils and open canopy.
    The features essential to the conservation of the species in Unit 2 
may require special management considerations or protection to address 
the threats of management of nonnative species and native woody 
vegetation, and maintenance of natural hydrology of the wetland.
    As noted above, there is contradicting evidence regarding the 
occupancy of Unit 2. However, Unit 2 contains the physical or 
biological features essential to the conservation of the Neches River 
rose-mallow and these features support life-history characteristics of 
the species (such as palustrine wetland habitat and native woody 
vegetation with an open canopy). The presence of these traits and the 
absence of noticeable habitat disturbances makes it likely that this 
unit remains occupied, despite the last verified record of this species 
being from the late 1980's, and therefore it meets the definition of 
critical habitat under section 3(5)(A)(i) of the Act because it is 
within the geographical area occupied by the species at the time of 
listing. However, we alternatively designate Unit 2 under section 
3(5)(A)(ii) of the Act because we consider the unit to be essential for 
the conservation of the Neches River rose-mallow, regardless of 
occupancy data. Including this unit in the designation of critical 
habitat for the Neches River rose-mallow aligns with the conservation 
strategy for this species. We have determined that the species requires 
a minimum of 10 populations and that the occupied areas contain 
suitable habitat (with future special management) to support larger 
populations of Neches River rose-mallow to meet the conservation goals 
for the species. The habitat in the 11 units is sufficient for 
attaining the goal of 10 viable populations throughout the geographic 
range of the species. Thus, for the purposes of this rulemaking, we 
determine that Unit 2 meets the definition of critical habitat under 
section 3(5)(A)(i) or, alternatively, under section 3(5)(A)(ii) of the 
Act.

Unit 3: Lovelady

    Unit 3 in Houston County, found northwest of Farm to Market 230, 
extends 0.3 mi (0.5 km) north and contains 6.3 ac (2.5 ha) of private 
land. The unit was occupied at the time of listing and contains the 
physical or biological features essential to the conservation of the 
species. The majority of land in Unit 3 belongs to the Texas Land 
Conservancy, who purchased the property in 2004 specifically for the 
conservation of the Neches River rose-mallow. This unit extends 
northward onto private lands where a known population of the Neches 
River rose-mallow was re-verified during a 2004 TXDOT survey. Essential 
biological features within Unit 3 include a depressional creek bed 
within Tantabogue Creek basin; inundation from overflow of the creek 
from the northwest or from rain events that may allow ponding in low-
lying areas; open habitat with native woody vegetation; and frequently 
inundated alluvial soils.
    The features essential to the conservation of the species in Unit 3 
may require special management considerations or protection to address 
the following threats: Management of nonnative species and native woody 
vegetation; maintenance of natural hydrology of habitat and adjacent 
areas, including rebuilding the stock pond to mimic natural flow 
regimes; construction of a cattle-exclusion fence to restrict grazing; 
and long-term maintenance of Tantabogue Creek flows by obtaining a 
conservation easement or agreement.

Unit 4: SH 204 ROW

    Unit 4 in Cherokee County contains 8.7 ac (3.5 ha) of occupied 
habitat along SH 204 ROW and within the Mud Creek basin. The unit was 
occupied at the time of listing and contains the physical or biological 
features essential to the conservation of the species. Unit 4 extends 
about 0.3 mi (0.5 km) from east to west and about 0.01 mi (0.02 km) 
from SH 204, on both the north and south sides of the highway, up to 
the private fence. Unit 4 also includes a 0.1 mi (0.2 km) section of 
the Mud Creek basin where Neches River rose-mallow could expand or 
where seeds could be dispersed. This site was first observed in 1992 
with a single plant and since that time, a maximum number of 75 plants 
have been counted (in 1997). Since 2003, the Neches River rose-mallow 
has been observed underneath most of the overpass (TXNDD 2012a, pp. 20-
28), in areas that did receive some level of sun (not completely 
shaded). Essential biological features of Unit 4 include its location 
within the Mud Creek basin, open habitat with full sun, and association 
with alluvial, hydric soils.
    The features essential to the conservation of the species in Unit 4 
may require special management considerations or protection to address 
the threats of management of nonnative species and native woody 
vegetation, maintenance of natural hydrology of the wetland, and 
appropriate timing and frequency of mowing and maintenance along the 
ROW.

Unit 5: Davy Crockett NF, Compartment 55

    Unit 5 is the only unit that contains a natural population of the 
Neches River rose-mallow on Federal lands within the Davy Crockett NF. 
The unit was occupied at the time of listing and contains the physical 
or biological features essential to the conservation of the species. 
Occupied habitat of Unit 5 includes 3.8 ac (1.5 ha). An open flatwood 
or forested (Cowardin et al. 1979, p. 20) pond is surrounded by pine-
oak forest. Unit 5 is 0.09 mi (0.14 km) in diameter and includes a 
palustrine flatwood pond and the surrounding open habitat. Essential 
habitat features of Unit 5 include its location within the Neches River 
basin, adjacent to a flatwood pond where water could be exchanged, 
surrounding native woody vegetation, and associated alluvial soils.
    The features essential to the conservation of the species in Unit 5 
may require special management considerations or protection to address 
the threats of management of nonnative species and native woody 
vegetation, maintenance and repair of habitat from hog damage, 
maintenance of natural hydrology of the wetland, and controlled use of 
herbicides.

Unit 6: Davy Crockett NF, Compartment 11

    Unit 6 includes 7.3 ac (3.0 ha) of occupied habitat on Compartment 
11 on Federal land in the Davy Crockett NF within Houston County. The 
unit was occupied at the time of listing and contains the physical or 
biological features essential to the conservation of the species. The 
SFASU introduced 200 plants into a seasonally flooded and low-lying 
wetland. Unit 6 is 0.2 mi (0.3 km) in diameter, and essential habitat 
features include a partially open, depressional pond surrounded by 
native vegetation.
    The features essential to the conservation of the species in Unit 6 
may require special management considerations or protection to address 
the threats of management of nonnative species and native woody 
vegetation, maintenance of natural hydrology of the wetland, 
maintenance and repair of habitat from hog damage, and controlled use 
of herbicides.

Unit 7: Davy Crockett NF, Compartment 20

    Unit 7 includes 3.4 ac (1.4 ha) of Federal land in Compartment 20 
of the

[[Page 56097]]

Davy Crockett NF, Houston County. The unit was occupied at the time of 
listing and contains the physical or biological features essential to 
the conservation of the species. The SFASU introduced 200-250 plants in 
2000, and the site was occupied at the time of listing. Essential 
habitat features in this unit include the hydric alluvial soils, native 
woody vegetation, natural flows and hydrology of the draining pond, and 
an open canopy of the perennial wetland where the Neches River rose-
mallow is located.
    The features essential to the conservation of the species in Unit 7 
may require special management considerations or protection to address 
the threats of management of nonnative species and native woody 
vegetation, maintenance of natural hydrology of the wetland, 
maintenance and repair of habitat from hog damage, and controlled use 
of herbicides.

Unit 8: Davy Crockett NF, Compartment 16

    Unit 8 encompasses 32.8 ac (13.3 ha) of occupied Federal habitat in 
the Davy Crocket NF, Houston County. The SFASU introduced 450 plants at 
this site in 2000, but only 43 stem clusters were observed in 2011. The 
unit was occupied at the time of listing and contains the physical or 
biological features essential to the conservation of the species. 
Essential habitat and biological features include a partially open 
depressional wetland within the Neches River floodplain, native 
riparian plant associates, and alluvial soils.
    The features essential to the conservation of the species in Unit 8 
may require special management considerations or protection to address 
the threats of management of nonnative species and native woody 
vegetation, maintenance of natural hydrology of the wetland, 
restriction of wetland conversion to beaver dams, and controlled use of 
herbicides.

Unit 9: Champion

    The Champion site, Trinity County, is located on private land 
approximately 0.7 mi (1.1 km) south-southeast of the Houston County 
line, about 0.8 mi (1.2 km) north of the confluence of White Rock Creek 
and Cedar Creek (TXNDD 2012a, p. 55). The unit was occupied at the time 
of listing and contains the physical or biological features essential 
to the conservation of the species. Two small polygons are being 
designated as occupied critical habitat, both encompassing 1.2 ha (2.9 
ac). Essential habitat features on the unit include palustrine wetlands 
with an open canopy.
    The features essential to the conservation of the species in Unit 9 
may require special management considerations or protection to address 
the threats of management of nonnative species and native woody 
vegetation, maintenance of natural hydrology of the entire site, and 
habitat conversion to planted pine and other hardwoods.
    As noted above, there is contradicting evidence regarding the 
occupancy of Unit 9. However, Unit 9 contains the physical or 
biological features essential to the conservation of the Neches River 
rose-mallow and these features support life-history characteristics of 
the species (such as palustrine wetland habitat with an open canopy). 
The presence of these traits and the absence of noticeable habitat 
disturbances makes it likely that this unit remains occupied, despite 
the last verified record of this species in 2001, and therefore it 
meets the definition of critical habitat under section 3(5)(A)(i) of 
the Act because it is within the geographical area occupied by the 
species at the time of listing. However, we alternatively designate 
Unit 9 under section 3(5)(A)(ii) of the Act because we consider the 
unit to be essential for the conservation of the Neches River rose-
mallow, regardless of occupancy data. Including this unit in the 
designation of critical habitat for the Neches River rose-mallow aligns 
with the conservation strategy for this species. We have determined 
that the species requires a minimum of 10 populations and that the 
occupied areas contain suitable habitat (with future special 
management) to support larger populations of Neches River rose-mallow 
to meet the conservation goals for the species. The habitat in the 11 
units is sufficient for attaining the goal of 10 viable populations 
throughout the geographic range of the species. Thus, for the purposes 
of this rulemaking, we determine that Unit 9 meets the definition of 
critical habitat under section 3(5)(A)(i) or, alternatively, under 
section 3(5)(A)(ii) of the Act.

Unit 10: Mill Creek Gardens

    Unit 10 is an introduced site at Mill Creek Gardens, Nacogdoches 
County. Stephen F. Austin State University Mass Arboretum purchased the 
land and created the gardens in 1995 as part of a conservation 
agreement. The unit was occupied at the time of listing and contains 
the physical or biological features essential to the conservation of 
the species. Plants grown from cuttings by SFASU were introduced within 
research plots in an area that overflows from an adjacent pond. 
According to a commenter, this site is along an emergency spillway of a 
dam where the soil is much different than at any of the natural 
population sites. However, vegetation around the site is well adapted 
to full and partial water inundation (TXNDD 2012a, p. 50), both of 
which are essential habitat features. The unit contains 95.3 ac (38. 6 
ha) of occupied habitat.
    The features essential to the conservation of the species in Unit 
10 may require special management considerations or protection to 
address the threats of management of nonnative species and native woody 
vegetation, maintaining natural hydrology of the entire site, 
maintenance and repair of habitat from hog damage, and maintaining the 
natural hydrology of the adjacent pond.

Unit 11: Camp Olympia

    Unit 11 is located on private property in Trinity County. The unit 
contains 0.2 ac (0.1 ha) of palustrine wetland habitat north of Lake 
Livingston. The documented presence of the Neches River rose-mallow at 
this site is based on voucher specimens collected in 1977 and in 1978. 
The site has only been visited by a species expert twice since 1978. 
Although site was surveyed by Klips in 1992 and Warnock in 1993 without 
success, leading Warnock (1995, p. 6) to list the site as extirpated or 
historical, there is reason to believe that the plants may still be 
there. In addition to site conditions that can change with fluctuations 
in water level; resulting in shifting of the plants' location, 
Warnock's 1993 site survey was conducted from the water (canoe), not 
from the land, and the presence of the Neches River rose-mallow may 
have been hidden from view by dense vegetation at the water's edge. The 
site could have been overgrown, the plant may not have been in bloom at 
the time of the survey, and environmental factors could have hindered 
the production of flowers at the time of the survey. Warnock (1995, p. 
6) suggested that the Neches River rose-mallow was highly dependent on 
the water levels of Lake Livingston; therefore, complete inundation of 
the site may cause extirpation of this population. The unit was 
occupied at the time of listing and contains the physical or biological 
features essential to the conservation of the species including the 
potential for flowing water and an open canopy providing full to 
partial sun exposure.
    The features essential to the conservation of the species in Unit 
11 may require special management considerations or protection to 
address the threats of management of nonnative species and native woody 
vegetation to maintain openness, and hydrological

[[Page 56098]]

changes through potential site alteration or construction projects.
    As noted above, there is contradicting evidence regarding the 
occupancy of Unit 11. However, Unit 11 contains the physical or 
biological features essential to the conservation of the Neches River 
rose-mallow and these features support life-history characteristics of 
the species (such as palustrine wetland habitat with an open canopy). 
The presence of these traits and the absence of noticeable habitat 
disturbances makes it likely that this unit remains occupied, despite 
the last verified record of this species in 1978, and therefore it 
meets the definition of critical habitat under section 3(5)(A)(i) of 
the Act because it is within the geographical area occupied by the 
species at the time of listing. However, we alternatively designate 
Unit 11 under section 3(5)(A)(ii) of the Act because we consider the 
unit to be essential for the conservation of the Neches River rose-
mallow, regardless of occupancy data. Including this unit in the 
designation of critical habitat for the Neches River rose-mallow aligns 
with the conservation strategy for this species. We have determined 
that the species requires a minimum of 10 populations and that the 
occupied areas contain suitable habitat (with future special 
management) to support larger populations of Neches River rose-mallow 
to meet the conservation goals for the species. The habitat in the 11 
units is sufficient for attaining the goal of 10 viable populations 
throughout the geographic range of the species. Thus, for the purposes 
of this rulemaking, we determine that Unit 11 meets the definition of 
critical habitat under section 3(5)(A)(i) or, alternatively, under 
section 3(5)(A)(ii) of the Act.

Effects of Critical Habitat Designation for the Texas Golden Gladecress 
and the Neches River Rose-Mallow

Section 7 Consultation

    Section 7(a)(2) of the Act requires Federal agencies, including the 
Service, to ensure that any action they fund, authorize, or carry out 
is not likely to jeopardize the continued existence of any endangered 
species or threatened species or result in the destruction or adverse 
modification of designated critical habitat of such species. In 
addition, section 7(a)(4) of the Act requires Federal agencies to 
confer with the Service on any agency action that is likely to 
jeopardize the continued existence of any species listed under the Act 
or result in the destruction or adverse modification of critical 
habitat.
    Decisions by the 5th and 9th Circuit Courts of Appeals have 
invalidated our regulatory definition of ``destruction or adverse 
modification'' (50 CFR 402.02) (see Gifford Pinchot Task Force v. U.S. 
Fish and Wildlife Service, 378 F. 3d 1059 (9th Cir. 2004) and Sierra 
Club v. U.S. Fish and Wildlife Service et al., 245 F.3d 434, 442 (5th 
Cir. 2001)), and we do not rely on this regulatory definition when 
analyzing whether an action is likely to destroy or adversely modify 
critical habitat. Under the statutory provisions of the Act, we 
determine destruction or adverse modification on the basis of whether, 
with implementation of the proposed Federal action, the affected 
critical habitat would continue to serve its intended conservation role 
for the species.
    If a Federal action may affect a listed species or its critical 
habitat, the responsible Federal agency (action agency) must enter into 
consultation with us. Examples of actions that are subject to the 
section 7 consultation process are actions on State, tribal, local, or 
private lands that require a Federal permit (such as a permit from the 
U.S. Army Corps of Engineers under section 404 of the Clean Water Act 
(33 U.S.C. 1251 et seq.) or a permit from the Service under section 10 
of the Act) or that involve some other Federal action (such as funding 
from the Federal Highway Administration, Federal Aviation 
Administration, or the Federal Emergency Management Agency). Federal 
actions not affecting listed species or critical habitat, and actions 
on State, tribal, local, or private lands that are not federally funded 
or authorized, do not require section 7 consultation.
    As a result of section 7 consultation, we document compliance with 
the requirements of section 7(a)(2) through our issuance of:
    (1) A concurrence letter for Federal actions that may affect, but 
are not likely to adversely affect, listed species or critical habitat; 
or
    (2) A biological opinion for Federal actions that may affect, or 
are likely to adversely affect, listed species or critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to jeopardize the continued existence of a listed species and/or 
destroy or adversely modify critical habitat, we provide reasonable and 
prudent alternatives to the project, if any are identifiable, that 
would avoid the likelihood of jeopardy and/or destruction or adverse 
modification of critical habitat. We define ``reasonable and prudent 
alternatives'' (at 50 CFR 402.02) as alternative actions identified 
during consultation that:
    (1) Can be implemented in a manner consistent with the intended 
purpose of the action,
    (2) Can be implemented consistent with the scope of the Federal 
agency's legal authority and jurisdiction,
    (3) Are economically and technologically feasible, and
    (4) Would, in the Director's opinion, avoid the likelihood of 
jeopardizing the continued existence of the listed species and/or avoid 
the likelihood of destroying or adversely modifying critical habitat.
    Reasonable and prudent alternatives can vary from slight project 
modifications to extensive redesign or relocation of the project. Costs 
associated with implementing a reasonable and prudent alternative are 
similarly variable.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where we have 
listed a new species or subsequently designated critical habitat that 
may be affected and the Federal agency has retained discretionary 
involvement or control over the action (or the agency's discretionary 
involvement or control is authorized by law). Consequently, Federal 
agencies sometimes may need to request reinitiation of consultation 
with us on actions for which formal consultation has been completed, if 
those actions with discretionary involvement or control may affect 
subsequently listed species or designated critical habitat.

Application of the ``Adverse Modification'' Standard

    The key factor related to the adverse modification determination is 
whether, with implementation of the proposed Federal action, the 
affected critical habitat would continue to serve its intended 
conservation role for the species. Activities that may destroy or 
adversely modify critical habitat are those that alter the physical or 
biological features to an extent that appreciably reduces the 
conservation value of critical habitat for Texas golden gladecress and 
Neches River rose-mallow. As discussed above, the role of critical 
habitat is to support life-history needs of the 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 destroy or 
adversely modify such habitat, or that may be affected by such 
designation.

[[Page 56099]]

Texas Golden Gladecress
    Activities that may affect critical habitat, when carried out, 
funded, or authorized by a Federal agency, should result in 
consultation for the Texas golden gladecress. These activities include, 
but are not limited to the following.
    Actions that would disturb or alter the natural vegetation 
community or the underlying geology supporting the species to the 
extent that the critical habitat would be adversely modified, and would 
also result in the decline of most, or even all, of the plants due to 
the small areal extent of their populations. Such activities could 
include, but are not limited to, removal of plant cover, soil, and 
underlying geology; construction of buildings or new roads or road 
improvements atop or directly upslope of population sites; application 
of herbicides that kill above ground plants or seedlings; plantings of 
pine trees in close proximity to small glade habitats that results in 
shading and accumulation of leaf litter; and land use practices that 
directly or indirectly encourage overgrowth by nonnative and native 
woody species. These activities could adversely affect the primary 
constituent elements, and in some cases where the primary constituent 
elements directly underlie the populations and their immediate 
surroundings, also likely constitute jeopardy to the species.
Neches River Rose-Mallow
    Activities that may affect critical habitat, when carried out, 
funded, or authorized by a Federal agency, should result in 
consultation for the Neches River rose-mallow. These activities 
include, but are not limited to the following.
    Actions that would by themselves, or in conjunction with other land 
activities, disturb or alter the vegetation community, underlying 
substrate, and hydrology to the extent that Neches River rose-mallow's 
critical habitat would be adversely modified, usually resulting in the 
decline or loss of the plants themselves. Such activities could 
include, but are not limited to, channelization projects that alter 
natural flow regimes, changes to site hydrology due to water diversions 
from streams and rivers, allowing nonnative and native woody riparian 
species to encroach into occupied sites, grazing during times of 
drought stress, detrimental roadside management practices including 
inappropriate frequency and timing of mowing (during blooming), 
herbicide applications in close proximity to plants, lack of management 
of feral hog population that causes trampling of habitat and damage to 
plants, and herbivory by cattle. These activities could adversely 
affect the primary constituent elements that are required by the 
species.

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 geographic areas owned or controlled by the 
Department of Defense, or designated for its use, that are subject to 
an integrated natural resources management plan [INRMP] prepared under 
section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary 
determines in writing that such plan provides a benefit to the species 
for which critical habitat is designated.'' There are no Department of 
Defense lands with a completed INRMP within the critical habitat 
designation.

Application of Section 4(b)(2) of the Act

Exclusions

    Section 4(b)(2) of the Act states that the Secretary shall 
designate and make revisions to critical habitat on the basis of the 
best available scientific data after taking into consideration the 
economic impact, national security impact, and any other relevant 
impact of specifying any particular area as critical habitat. The 
Secretary may exclude an area from critical habitat if he determines 
that the benefits of such exclusion outweigh the benefits of specifying 
such area as part of the critical habitat, unless he determines, based 
on the best scientific data available, that the failure to designate 
such area as critical habitat will result in the extinction of the 
species. In making that determination, the statute on its face, as well 
as the legislative history, are clear that the Secretary has broad 
discretion regarding which factor(s) to use and how much weight to give 
to any factor.
    Under section 4(b)(2) of the Act, we may exclude an area from 
designated critical habitat based on economic impacts, impacts on 
national security, or any other relevant impacts. In considering 
whether to exclude a particular area from the designation, we identify 
the benefits of including the area in the designation, identify the 
benefits of excluding the area from the designation, and evaluate 
whether the benefits of exclusion outweigh the benefits of inclusion. 
If the analysis indicates that the benefits of exclusion outweigh the 
benefits of inclusion, the Secretary may exercise her discretion to 
exclude the area only if such exclusion would not result in the 
extinction of the species.
Exclusions Based on Economic Impacts
    Under section 4(b)(2) of the Act, we consider the economic impacts 
of specifying any particular area as critical habitat. In order to 
consider economic impacts, we prepared a draft economic analysis of the 
proposed critical habitat designation and related factors (Industrial 
Economics 2013a). The draft analysis, dated April 16, 2013, (78 FR 
22506) was made available for public review from April 16, 2013, 
through May 16, 2013. Following the close of the comment period, a 
final analysis (dated June 27, 2013) of the potential economic effects 
of the designation was developed taking into consideration the public 
comments and any new information (Industrial Economics 2013b).
    The intent of the final economic analysis (FEA) is to quantify the 
economic impacts of all potential conservation efforts for Texas golden 
gladecress and the Neches River rose-mallow; some of these costs will 
likely be incurred regardless of whether we designate critical habitat 
(baseline). The economic impact of the final critical habitat 
designation is analyzed by comparing scenarios both ``with critical 
habitat'' and ``without critical habitat.'' The ``without critical 
habitat'' scenario represents the baseline for the analysis, 
considering protections already in place for the species (e.g., under 
the Federal listing and other Federal, State, and local regulations). 
The baseline, therefore, represents the costs incurred regardless of 
whether critical habitat is designated. The ``with critical habitat'' 
scenario describes the incremental impacts associated specifically with 
the designation of critical habitat for the species. The incremental 
conservation efforts and associated impacts are those not expected to 
occur absent the designation of critical habitat for the species. In 
other words, the incremental costs are those attributable solely to the 
designation of critical habitat above and beyond the baseline costs; 
these are the costs we consider in the final designation of critical 
habitat. The analysis looks retrospectively at baseline impacts 
incurred since the species was listed, and forecasts both baseline and 
incremental impacts likely to occur with the designation of critical 
habitat.
    The FEA also addresses how potential economic impacts are likely to 
be distributed, including an assessment of any local or regional 
impacts of habitat conservation and the potential effects of 
conservation activities on government agencies, private businesses, and

[[Page 56100]]

individuals. The FEA measures lost economic efficiency associated with 
residential and commercial development and public projects and 
activities, such as economic impacts on water management and 
transportation projects, Federal lands, small entities, and the energy 
industry. Decision-makers can use this information to assess whether 
the effects of the designation might unduly burden a particular group 
or economic sector. Finally, the FEA considers those costs that may 
occur in the 20 years following the designation of critical habitat, 
which was determined to be the appropriate period for analysis because 
limited planning information was available for most activities to 
forecast activity levels for projects beyond a 20-year timeframe.
    The final economic analysis quantifies economic impacts of Texas 
golden gladecress and the Neches River rose-mallow conservation efforts 
associated with the following categories of activity: (1) 
Transportation (minor road widening and maintenance) and energy 
infrastructure projects, (2) land management, and (3) water management. 
The total present value impacts anticipated to result from the 
designation of all areas designated as Texas golden gladecress and 
Neches River rose-mallow critical habitat are approximately $32,000 for 
Neches River rose-mallow and $478,000 for Texas golden gladecress over 
20 years, assuming a 7 percent discount rate. For the Neches River 
rose-mallow, all incremental costs are likely limited to the additional 
administrative cost of considering adverse modification during section 
7 consultations. For the Texas golden gladecress, incremental costs are 
associated with consultations that consider adverse modification, as 
well as expected project modifications and project costs. Please refer 
to the final economic analysis for a comprehensive discussion of the 
potential impacts.
    Our economic analysis did not identify any disproportionate costs 
that are likely to result from the designation. Consequently, the 
Secretary is not exerting her discretion to exclude any areas from this 
designation of critical habitat for the Texas golden gladecress and the 
Neches River rose-mallow based on economic impacts.
    A copy of the final economic analysis with supporting documents may 
be obtained by contacting the Texas Coastal Ecological Services Field 
Office (see ADDRESSES) or by downloading from the Internet at http://www.regulations.gov (Docket No. FWS-R2-ES-2013-0027) and also at http://www.fws.gov/southwest/es/ElectronicLibrary/ElectronicLibrary_Main.cfm.
Exclusions Based on National Security Impacts
    Under section 4(b)(2) of the Act, we consider whether there are 
lands owned or managed by the Department of Defense where a national 
security impact might exist.
    In preparing this final rule, we have determined that the lands 
within the designation of critical habitat for the Texas golden 
gladecress and the Neches River rose-mallow are not owned or managed by 
the Department of Defense or Department of Homeland Security, and, 
therefore, we anticipate no impact on national security. Consequently, 
the Secretary is not exerting her discretion to exclude any areas from 
this final designation based on impacts on national security.

Exclusions Based on Other Relevant Impacts

    Under section 4(b)(2) of the Act, we consider any other relevant 
impacts, in addition to economic impacts and impacts on national 
security. We consider a number of factors, including whether the 
landowners have developed any HCPs or other management plans for the 
area, or whether there are conservation partnerships that would be 
encouraged by designation of, or exclusion from, critical habitat. In 
addition, we look at any tribal issues, and consider the government-to-
government relationship of the United States with tribal entities. We 
also consider any social impacts that might occur because of the 
designation.
    In preparing this final rule, we have determined that there are 
currently no HCPs or other management plans for the Texas golden 
gladecress or the Neches River rose-mallow, and the final designation 
does not include any tribal lands or trust resources. We anticipate no 
impact on tribal lands, partnerships, or HCPs from this critical 
habitat designation. Accordingly, the Secretary is not exercising her 
discretion to exclude any areas from this final designation based on 
other relevant impacts.

Required Determinations

Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs (OIRA) will review all significant rules. The Office 
of Information and Regulatory Affairs has determined that this rule is 
not significant.
    Executive Order 13563 reaffirms the principles of E.O. 12866, while 
calling for improvements in the nation's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The executive order directs agencies to consider regulatory approaches 
that reduce burdens and maintain flexibility and freedom of choice for 
the public where these approaches are relevant, feasible, and 
consistent with regulatory objectives. E.O. 13563 emphasizes further 
that regulations must be based on the best available science and that 
the rulemaking process must allow for public participation and an open 
exchange of ideas. We have developed this rule in a manner consistent 
with these requirements.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.) as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996 (5 U.S.C. 801 et seq.), whenever an agency must 
publish a notice of rulemaking for any proposed or final rule, it must 
prepare and make available for public comment a regulatory flexibility 
analysis that describes the effects of the rule on small entities 
(small businesses, small organizations, and small government 
jurisdictions). However, no regulatory flexibility analysis is required 
if the head of the agency certifies the rule will not have a 
significant economic impact on a substantial number of small entities. 
The SBREFA amended the RFA to require Federal agencies to provide a 
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. In this final rule, we are certifying that 
the critical habitat designation for Texas golden gladecress or the 
Neches River rose-mallow will not have a significant economic impact on 
a substantial number of small entities. The following discussion 
explains our rationale.
    According to the Small Business Administration, small entities 
include small organizations, such as independent nonprofit 
organizations; small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents; as well as small businesses. Small businesses include 
manufacturing and mining concerns with fewer than 500 employees, 
wholesale trade entities with fewer than 100 employees, retail and 
service businesses with less than $5 million in annual sales, general 
and heavy

[[Page 56101]]

construction businesses with less than $27.5 million in annual 
business, special trade contractors doing less than $11.5 million in 
annual business, and agricultural businesses with annual sales less 
than $750,000. To determine if potential economic impacts on these 
small entities are significant, we consider the types of activities 
that might trigger regulatory impacts under this rule, as well as the 
types of project modifications that may result. In general, the term 
``significant economic impact'' is meant to apply to a typical small 
business firm's business operations.
    To determine if the rule could significantly affect a substantial 
number of small entities, we consider the number of small entities 
affected within particular types of economic activities. We apply the 
``substantial number'' test individually to each industry to determine 
if certification is appropriate. However, the SBREFA does not 
explicitly define ``substantial number'' or ``significant economic 
impact.'' Consequently, to assess whether a ``substantial number'' of 
small entities is affected by this designation, this analysis considers 
the relative number of small entities likely to be impacted in an area. 
In some circumstances, especially with critical habitat designations of 
limited extent, we may aggregate across all industries and consider 
whether the total number of small entities affected is substantial. In 
estimating the number of small entities potentially affected, we also 
consider whether their activities have any Federal involvement.
    Designation of critical habitat only affects activities authorized, 
funded, or carried out by Federal agencies. Some kinds of activities 
are unlikely to have any Federal involvement and so will not be 
affected by critical habitat designation. In areas where the species is 
present, Federal agencies already are required to consult with us under 
section 7 of the Act on activities they authorize, fund, or carry out 
that may affect the Texas golden gladecress or the Neches River rose-
mallow. Federal agencies also must consult with us if their activities 
may affect critical habitat. Designation of critical habitat, 
therefore, could result in an additional economic impact on small 
entities due to the requirement to reinitiate consultation for ongoing 
Federal activities (see ``Application of the `Adverse Modification 
Standard' '' section).
    Importantly, the incremental impacts of a rule must be both 
significant and substantial to prevent certification of the rule under 
the RFA and to require the preparation of an initial regulatory 
flexibility analysis. If a substantial number of small entities are 
affected by the critical habitat designation, but the per-entity 
economic impact is not significant, the Service may certify. Likewise, 
if the per-entity economic impact is likely to be significant, but the 
number of affected entities is not substantial, the Service may also 
certify.
    The Service's current understanding of recent case law is that 
Federal agencies are only required to evaluate the potential impacts of 
rulemaking on those entities directly regulated by the rulemaking; 
therefore, they are not required to evaluate the potential impacts to 
those entities not directly regulated. The designation of critical 
habitat for an endangered or threatened species only has a regulatory 
effect where a Federal action agency is involved in a particular action 
that may affect the designated critical habitat. Under these 
circumstances, only the Federal action agency is directly regulated by 
the designation, and, therefore, consistent with the Service's current 
interpretation of RFA and recent case law, the Service may limit its 
evaluation of the potential impacts to those identified for Federal 
action agencies. Under this interpretation, there is no requirement 
under the RFA to evaluate the potential impacts to entities not 
directly regulated, such as small businesses. However, Executive Orders 
12866 and 13563 direct Federal agencies to assess costs and benefits of 
available regulatory alternatives in quantitative (to the extent 
feasible) and qualitative terms. Consequently, it is the current 
practice of the Service to assess to the extent practicable these 
potential impacts if sufficient data are available, whether or not this 
analysis is believed by the Service to be strictly required by the RFA. 
In other words, while the effects analysis required under the RFA is 
limited to entities directly regulated by the rulemaking, the effects 
analysis under the Act, consistent with the EO regulatory analysis 
requirements, can take into consideration impacts to both directly and 
indirectly impacted entities, where practicable and reasonable.
    In conclusion, we believe that, based on our interpretation of 
directly regulated entities under the RFA and relevant case law, this 
designation of critical habitat will only directly regulate Federal 
agencies, which are not by definition small business entities. And as 
such, we certify that, if promulgated, this designation of critical 
habitat would not have a significant economic impact on a substantial 
number of small business entities. Therefore, a regulatory flexibility 
analysis is not required. However, though not necessarily required by 
the RFA, in our final economic analysis for this rule we considered and 
evaluated the potential effects to third parties that may be involved 
with consultations with Federal action agencies related to this action.
    Designation of critical habitat only affects activities authorized, 
funded, or carried out by Federal agencies. Some kinds of activities 
are unlikely to have any Federal involvement and so will not be 
affected by critical habitat designation. In areas where the species is 
present, Federal agencies already are required to consult with us under 
section 7 of the Act on activities they authorize, fund, or carry out 
that may affect the Texas golden gladecress or the Neches River rose-
mallow. Federal agencies also must consult with us if their activities 
may affect critical habitat. Designation of critical habitat, 
therefore, could result in an additional economic impact on small 
entities due to the requirement to reinitiate consultation for ongoing 
Federal activities (see Application of the ``Adverse Modification 
Standard'' section).
    In our final economic analysis of the critical habitat designation, 
we evaluated the potential economic effects on small business entities 
resulting from conservation actions related to the listing of the Texas 
golden gladecress or the Neches River rose-mallow and the designation 
of critical habitat. The analysis is based on the estimated impacts 
associated with the rulemaking as described in Chapters 4 through 5 and 
Appendix A of the analysis and evaluates the potential for economic 
impacts related to: (1) Routine transportation projects, utility 
related activities, and oil and gas development, including interstate 
natural gas pipelines; (2) land management; and (3) water management.
    To determine if the designation of critical habitat for the Texas 
golden gladecress or the Neches River rose-mallow would affect a 
substantial number of small entities, we considered the number of small 
entities affected within the categories of economic activities listed 
above. In order to determine whether it was appropriate for our agency 
to certify that this final rule would not have a significant economic 
impact on a substantial number of small entities, we considered each 
industry or category individually. In estimating the numbers of small 
entities potentially affected, we also considered whether their 
activities have any Federal involvement. Critical

[[Page 56102]]

habitat designation will not affect activities that do not have any 
Federal involvement; designation of critical habitat affects only 
activities conducted, funded, permitted, or authorized by Federal 
agencies. In areas where the Texas golden gladecress or the Neches 
River rose-mallow is present, Federal agencies already are required to 
consult with us under section 7 of the Act on activities they fund, 
permit, or implement that may affect the species. Critical habitat 
designation means that consultations to avoid the destruction or 
adverse modification of critical habitat will be incorporated into the 
existing consultation process.
    To ensure broad consideration of impacts on small entities, the 
Service's economic analysis assessed potential economic effects on 
small entities resulting from implementation of conservation actions 
related to the designation of critical habitat for the Texas golden 
gladecress and the Neches River rose-mallow. For the Neches River rose-
mallow, no incremental conservation measures to avoid adverse 
modification of critical habitat over and above those recommended to 
avoid jeopardy to the species were foreseen, and as such the economic 
analysis forecast was for few incremental economic impacts as a result 
of the designation of critical habitat for this species. Incremental 
impacts forecast were solely related to administrative costs for 
adverse modification analyses in section 7 consultations. The final 
economic analysis projected that 16 such consultations would occur. The 
Service and the Federal action agencies (U.S. Department of 
Transportation, U.S. Forest Service, Rural Utilities Services and the 
U.S. Army Corps of Engineers) are not small entities. The TXDOT, the 
third party participant in four of these consultations, is not a small 
entity. For ten of these consultations, the third party participant is 
an electric cooperative. Electric cooperatives may be considered 
independently owned and operated establishments that are not dominant 
in their field, thus falling under protection of the RFA. As calculated 
in this analysis, however, the costs to these entities are de minimis 
and would not be expected to have significant impact.
    For the Texas golden gladecress, the incremental costs of this 
designation included the administrative costs of considering adverse 
modification during section 7 consultations, the costs of any 
recommended project modifications, and the costs of new land management 
projects occurring as a result of the critical habitat designation. 
Approximately 23 section 7 consultations were projected for this 
species; three formal and 20 informal, over the next 20 years. As is 
the case with the Neches River rose-mallow, the Service, Rural 
Utilities Services, U.S. Department of Transportation, and TXDOT are 
not small entities. For five of the consultations, two electric 
cooperatives serve as third party participants. As concluded above for 
the Neches River rose-mallow, the costs anticipated to be incurred by 
these entities are de minimis (less than $1,000 annually) and would not 
be projected to result in significant impacts.
    We assumed that these consultations would have an equal probability 
of occurring at any time during the 20-year timeframe and considered 
these estimates to be conservative because we assumed that all projects 
could occur independently; that is, we assumed separate consultations 
for each project. Based on the consultation history, most consultations 
are unlikely to involve a third party. Electric cooperatives may be 
considered independently owned and operated establishments that are not 
dominant in their field, thus falling under protection of the RFA. As 
calculated in this analysis, however, the costs to these entities are 
de minimis and would not be expected to have significant impact. In 
conclusion, while two small electric cooperatives are anticipated to 
incur costs as a result of the designation of critical habitat for 
Texas golden gladecress and Neches River rose-mallow, the costs are not 
expected to result in significant impacts to these entities. 
Consequently, no small entities are anticipated to incur costs as a 
result of the designation of critical habitat for Texas golden 
gladecress and Neches River rose-mallow.
    In summary, we considered whether this designation would result in 
a significant economic effect on a substantial number of small 
entities. Based on the above reasoning and currently available 
information, we concluded that this rule would not result in a 
significant economic impact on a substantial number of small entities. 
Therefore, we are certifying that the designation of critical habitat 
for Texas golden gladecress or the Neches River rose-mallow 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. Office of Management and Budget 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 Texas golden 
gladecress or the Neches River rose-mallow conservation activities 
within critical habitat are not expected. As such, the designation of 
critical habitat is not expected to significantly affect energy 
supplies, distribution, or use. Therefore, this action is not a 
significant energy action, and no Statement of Energy Effects is 
required.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we make the following findings:
    (1) This rule will not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute, or regulation 
that would impose an enforceable duty upon State, local, or tribal 
governments, or the private sector, and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or tribal governments'' with two 
exceptions. It excludes ``a condition of Federal assistance.'' It also 
excludes ``a duty arising from participation in a voluntary Federal 
program,'' unless the regulation ``relates to a then-existing Federal 
program under which $500,000,000 or more is provided annually to State, 
local, and tribal governments under entitlement authority,'' if the 
provision would ``increase the stringency of conditions of assistance'' 
or ``place caps upon, or otherwise decrease, the Federal Government's 
responsibility to provide funding,'' and the State, local, or tribal 
governments ``lack authority'' to adjust accordingly. At the time of 
enactment, these entitlement programs were: Medicaid; Aid to Families 
with Dependent Children work programs; Child Nutrition; Food Stamps; 
Social Services Block Grants; Vocational Rehabilitation State Grants; 
Foster Care, Adoption Assistance, and Independent Living; Family 
Support Welfare Services; and Child Support

[[Page 56103]]

Enforcement. ``Federal private sector mandate'' includes a regulation 
that ``would impose an enforceable duty upon the private sector, except 
(i) a condition of Federal assistance or (ii) a duty arising from 
participation in a voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal Government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. While non-Federal entities that receive 
Federal funding, assistance, or permits, or that otherwise require 
approval or authorization from a Federal agency for an action, may be 
indirectly impacted by the designation of critical habitat, the legally 
binding duty to avoid destruction or adverse modification of critical 
habitat rests squarely on the Federal agency. Furthermore, to the 
extent that non-Federal entities are indirectly impacted because they 
receive Federal assistance or participate in a voluntary Federal aid 
program, the Unfunded Mandates Reform Act would not apply, nor would 
critical habitat shift the costs of the large entitlement programs 
listed above onto State governments.
    (2) We do not believe that this rule will significantly or uniquely 
affect small governments. As stated in the proposed rule, 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. Therefore, this rule does not 
place an enforceable duty upon State, local, or Tribal governments, or 
the private sector. The majority of lands designated for critical 
habitat are owned by private landowners, although the Federal 
Government and the State of Texas own small portions. None of these 
government entities fit the definition of small governmental 
jurisdiction. Therefore, a Small Government Agency Plan is not 
required.

Takings--Executive Order 12630

    In accordance with Executive Order 12630 (Government Actions and 
Interference with Constitutionally Protected Private Property Rights), 
we have analyzed the potential takings implications of designating 
critical habitat for the Texas golden gladecress and the Neches River 
rose-mallow in a takings implications assessment. Executive Order 
12630, ``Governmental Actions and Interference with Constitutionally 
Protected Property Rights,'' issued March 15, 1988, requires agencies 
to adhere to certain principals in rulemakings that have takings 
implications and provide certain information to Office of Management 
and Budget for any actions with identified takings implications. 
Section 2(a) of the Executive Order defines takings implications to 
include any ``regulations that propose or implement licensing, 
permitting, or other requirements or limitations on private property 
use, or that require dedications or exactions from owners of private 
property.'' Our economic analysis found that the incremental effects of 
the critical habitat designations are largely limited to additional 
administrative costs. Activities taking place on private property are 
not likely to be affected. The takings implications assessment 
concludes that this designation of critical habitat for the Texas 
golden gladecress and the Neches River rose-mallow does not pose 
significant takings implications for lands within or affected by the 
designation.

Federalism--Executive Order 13132

    In accordance with Executive Order 13132 (Federalism), this final 
rule does not have significant Federalism effects. A federalism summary 
impact statement is not required. In keeping with Department of the 
Interior and Department of Commerce policy, we requested information 
from, and coordinated development of, this final critical habitat 
designation with appropriate State resource agencies in Texas. We 
received comments from TPWD, Governor's Office, and TXDOT and have 
addressed them in the Summary of Comments and Recommendations section 
of the rule. 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 to the 
conservation of the species are specifically identified. This 
information does not alter where and what federally sponsored 
activities may occur. However, it may assist these local governments in 
long-range planning (because these local governments no longer have to 
wait for case-by-case section 7 consultations to occur).
    Where State and local governments require approval or authorization 
from a Federal agency for actions that may affect critical habitat, 
consultation under section 7(a)(2) would be required. While non-Federal 
entities that receive Federal funding, assistance, or permits, or that 
otherwise require approval or authorization from a Federal agency for 
an action, may be indirectly impacted by the designation of critical 
habitat, the legally binding duty to avoid destruction or adverse 
modification of critical habitat rests squarely on the Federal agency.

Civil Justice Reform--Executive Order 12988

    In accordance with Executive Order 12988 (Civil Justice Reform), 
the Office of the Solicitor has determined that the rule does not 
unduly burden the judicial system and that it meets the applicable 
standards set forth in sections 3(a) and 3(b)(2) of the Order. We are 
designating critical habitat in accordance with the provisions of the 
Act. To assist the public in understanding the habitat needs of the 
species, the rule identifies the elements of physical or biological 
features essential to the conservation of the Texas golden gladecress 
and Neches River rose-mallow. 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 any new collections of information that 
require approval by Office of Management and Budget under the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501 et seq.). This rule will not 
impose recordkeeping or reporting requirements on State or local 
governments, individuals, businesses, or organizations. An agency

[[Page 56104]]

may not conduct or sponsor, and a person is not required to respond to, 
a collection of information unless it displays a currently valid Office 
of Management and Budget control number.

National Environmental Policy Act (42 U.S.C. 4321 et seq.)

    It is our position that, outside the jurisdiction of the U.S. Court 
of Appeals for the Tenth Circuit, we do not need to prepare 
environmental analyses pursuant to the National Environmental Policy 
Act (NEPA; 42 U.S.C. 4321 et seq.) in connection with designating 
critical habitat under the Act. We published a notice outlining our 
reasons for this determination in the Federal Register on October 25, 
1983 (48 FR 49244). This position was upheld by the U.S. Court of 
Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495 
(9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)).

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994 
(Government-to-Government Relations with Native American Tribal 
Governments; 59 FR 22951), Executive Order 13175 (Consultation and 
Coordination With Indian Tribal Governments), and the Department of the 
Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. In accordance with 
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, 
Federal-Tribal Trust Responsibilities, and the Endangered Species Act), 
we readily acknowledge our responsibilities to work directly with 
tribes in developing programs for healthy ecosystems, to acknowledge 
that tribal lands are not subject to the same controls as Federal 
public lands, to remain sensitive to Indian culture, and to make 
information available to tribes.
    We determined that there are no tribal lands occupied by the Texas 
golden gladecress and the Neches River rose-mallow at the time of 
listing that contain the physical or biological features essential to 
conservation of the species, and no tribal lands unoccupied by the 
Texas golden gladecress and the Neches River rose-mallow that are 
essential for the conservation of the species. Therefore, we are not 
designating critical habitat for the Texas golden gladecress and the 
Neches River rose-mallow on tribal lands.

References Cited

    A complete list of references cited in this rulemaking is available 
on the Internet at http://www.regulations.gov at Docket No. FWS-R2-ES-
2012-0064 and Docket No. FWS-R2-ES-2013-0027 and upon request from the 
Corpus Christi Ecological Services Field Office (see FOR FURTHER 
INFORMATION CONTACT).

Authors

    The primary authors of this package are the staff members of the 
Corpus Christi Ecological Services Field Office.

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

Regulation Promulgation

    Accordingly, we are amending part 17, subchapter B of chapter I, 
title 50 of the Code of Federal Regulations, as set forth below:

PART 17--[AMENDED]

0
1. The authority citation for part 17 continues to read as follows:

    Authority:  16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, 
unless otherwise noted.

0
2. In Sec.  17.96, amend paragraph (a) by adding an entry for 
``Leavenworthia texana (Texas golden gladecress)'' in alphabetical 
order under the family Brassicaceae and an entry for ``Hibiscus 
dasycalyx (Neches River rose-mallow)'' in alphabetical order under the 
family Malvaceae, to read as follows:


Sec.  17.96  Critical habitat--plants.

* * * * *
    (a) Flowering plants.
* * * * *

Family Brassicaceae: Leavenworthia texana (Texas golden gladecress)
    (1) Critical habitat units are depicted for San Augustine and 
Sabine Counties, Texas, on the maps below.
    (2) Within these areas, the primary constituent elements of the 
physical or biological features essential to the conservation of 
Leavenworthia texana consist of the three primary constituent elements 
identified for the species:
    (i) Exposed outcrops of the Weches Formation within Weches 
prairies. Within the outcrop sites, there must be bare, exposed bedrock 
on top-level surfaces or rocky ledges with small depressions where 
rainwater or seepage can collect. The openings should support Weches 
Glade native herbaceous plant communities.
    (ii) Thin layers of rocky, alkaline soils, underlain by glauconite 
clay (greenstone, ironstone, bluestone), that are found only on the 
Weches Formation. Appropriate soils are in the series classifications 
Nacogdoches clay loam, Trawick gravelly clay loam, or Bub clay loam, 
ranging in slope from 1-15 percent.
    (iii) The outcrop ledges should occur within the glade such that 
Texas golden gladecress plants remain unshaded for a significant 
portion of the day, and trees should be far enough away from the 
outcrop(s) that leaves do not accumulate within the gladecress habitat. 
The habitat should be relatively clear of nonnative and native invasive 
plants, especially woody species, or with only a minimal level of 
invasion.
    (3) Critical habitat does not include manmade structures (such as 
buildings, bridges, aqueducts, runways, well pads, metering stations, 
roads and the filled areas immediately adjacent to pavement, and other 
paved areas) and the land on which they are located existing within the 
legal boundaries on October 11, 2013.
    (4) Critical habitat map units. Soil Survey Geographic Dataset 
(SSURGO) was used as a base map layer. The SSURGO is an updated digital 
version of the Natural Resources Conservation Service county soil 
surveys. The SSURGO uses recent digital orthophotos and fieldwork to 
update the original printed surveys. Data layers defining map units 
were created using the Texas golden gladecress' restriction to the 
Weches Formation and its tight association with the three soil map 
units: Nacogdoches clay loam 1-5 percent slope, Trawick gravelly clay 
loam 5-15 percent slope, or Bub clay loam 2-5 percent slope. In San 
Augustine and Sabine Counties, these soil types are restricted to the 
Weches Formation. Locations of all known gladecress populations, as 
well as potential glade sites, were overlaid on the three afore-named 
soil mapping units from the San Augustine and Sabine County's soils 
survey. Potential glade sites were identified using soil map units and 
a time series of aerial photographs that depicted changes in land 
cover. 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 
http://www.fws.gov/southwest/es/ElectronicLibrary/ElectronicLibrary_Main.cfm, at http://www.regulations.gov at Docket No. FWS-R2-ES-2013-
0027, and at the field office responsible for this designation. You may 
obtain field office

[[Page 56105]]

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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[GRAPHIC] [TIFF OMITTED] TR11SE13.014


[[Page 56106]]


    (6) Unit 1: Geneva Unit, Sabine County, Texas. Map of Unit 1 
follows:
[GRAPHIC] [TIFF OMITTED] TR11SE13.015


[[Page 56107]]


    (7) Unit 2: Chapel Hill, San Augustine County. Map of Unit 2 
follows:
[GRAPHIC] [TIFF OMITTED] TR11SE13.016


[[Page 56108]]


    (8) Unit 3: Southeast Caney Creek Glades, San Augustine County, 
Texas. Map of Units 3 and 4 follows:
[GRAPHIC] [TIFF OMITTED] TR11SE13.017

    (9) Unit 4: Northwest Caney Creek Glades, San Augustine County, 
Texas. Map of Unit 4 is depicted in paragraph (8) of this entry.
* * * * *

Family Malvaceae: Hibiscus dasycalyx (Neches River rose-mallow)

    (1) Critical habitat units are depicted for Cherokee, Harrison, 
Houston, Nacogdoches, and Trinity Counties, Texas, on the maps below.
    (2) Within these areas, the primary constituent element of the 
physical or biological features essential to the conservation of 
Hibiscus dasycalyx is intermittent or perennial wetlands within the 
Neches, Sabine, and Angelina River floodplains or Mud and Tantabogue 
Creek basins that contain:
    (i) Hydric alluvial soils and the potential for flowing water when 
found in depressional sloughs, oxbows,

[[Page 56109]]

terraces, side channels, or sand bars; and
    (ii) Native woody or associated herbaceous vegetation, largely with 
an open canopy providing partial to full sun exposure with few to no 
nonnative species.
    (3) Critical habitat does not include manmade structures (such as 
buildings; bridges; aqueducts; runways; roads; well pads; metering 
stations; other paved areas; unpaved roads; and the filled areas 
immediately adjacent to pavement) and the land on which they are 
located existing within the legal boundaries on October 11, 2013.
    (4) Critical habitat map units. Data layers defining map units were 
created on a base of Strategic Mapping Program (StratMap) digital 
orthophoto quarter-quadrangles (DOQQs), with layers for boundaries and 
roads. The Service's National Wetlands Inventory maps for the 
appropriate USGS quads were also downloaded as layers. Critical habitat 
units were mapped using Geographic Coordinate System (GCS), North 
American, 1983. 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 
http://www.fws.gov/southwest/es/ElectronicLibrary/ElectronicLibrary_Main.cfm, at http://www.regulations.gov at Docket No. FWS-R2-ES-2013-
0027, 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:
    [GRAPHIC] [TIFF OMITTED] TR11SE13.018
    

[[Page 56110]]


    (6) Unit 1: State Highway 94 right-of-way, Trinity County, Texas. 
Map of Unit 1 follows:
[GRAPHIC] [TIFF OMITTED] TR11SE13.019


[[Page 56111]]


    (7) Unit 2: Harrison site, Harrison County, Texas. Map of Unit 2 
follows:
[GRAPHIC] [TIFF OMITTED] TR11SE13.020


[[Page 56112]]


    (8) Unit 3: Lovelady, Houston County, Texas. Map of Unit 3 follows:
    [GRAPHIC] [TIFF OMITTED] TR11SE13.021
    

[[Page 56113]]


    (9) Unit 4: State Highway 204 right-of-way, Cherokee County, Texas. 
Map of Unit 4 follows:
[GRAPHIC] [TIFF OMITTED] TR11SE13.022


[[Page 56114]]


    (10) Unit 5: Davy Crockett National Forest, Compartment 55, Houston 
County, Texas. Map of Unit 5 follows:
[GRAPHIC] [TIFF OMITTED] TR11SE13.023


[[Page 56115]]


    (11) Unit 6: Davy Crockett National Forest, Compartment 11, Houston 
County, Texas. Map of Unit 6 follows:
[GRAPHIC] [TIFF OMITTED] TR11SE13.024


[[Page 56116]]


    (12) Unit 7: Davy Crockett National Forest, Compartment 20, Houston 
County, Texas. Map of Unit 7 follows:
[GRAPHIC] [TIFF OMITTED] TR11SE13.025


[[Page 56117]]


    (13) Unit 8: Davy Crockett National Forest, Compartment 16, Houston 
County, Texas. Map of Unit 8 follows:
[GRAPHIC] [TIFF OMITTED] TR11SE13.026


[[Page 56118]]


    (14) Unit 9: Champion site, Trinity County, Texas. Map of Unit 9 
follows:
[GRAPHIC] [TIFF OMITTED] TR11SE13.027


[[Page 56119]]


    (15) Unit 10: Mill Creek Gardens, Nacogdoches County, Texas. Map of 
Unit 10 follows:
[GRAPHIC] [TIFF OMITTED] TR11SE13.028


[[Page 56120]]


    (16) Unit 11: Camp Olympia, Trinity County, Texas. Map of Unit 11 
follows:
[GRAPHIC] [TIFF OMITTED] TR11SE13.029

* * * * *

    Dated: September 5, 2013.
Michael Bean,
Acting Principal Deputy Assistant Secretary for Fish and Wildlife and 
Parks.
[FR Doc. 2013-22083 Filed 9-10-13; 8:45 am]
BILLING CODE 4310-55-C