Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Grotto Sculpin (Cottus specus), 58923-58938 [2013-23182]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 78, Number 186 (Wednesday, September 25, 2013)]
[Rules and Regulations]
[Pages 58923-58938]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-23182]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R3-ES-2013-0016; 4500030113]
RIN 1018-AZ41


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for the Grotto Sculpin (Cottus specus)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service, exclude all areas that 
were proposed as critical habitat for the

[[Page 58924]]

grotto sculpin (Cottus specus) under the Endangered Species Act in this 
final rule. In total, approximately 94 km\2\ (36.28 mi\2\) plus 31 
kilometers (19.2 miles) of surface stream that were proposed as 
critical habitat are excluded under section 4(b)(2) of the Act from 
this final designation for sites within Perry County, Missouri, due to 
the commitment of city, county, and private entities in the 
implementation of a Perry County Community Conservation Plan for the 
grotto sculpin.

DATES: This rule becomes effective on October 25, 2013.

ADDRESSES: This final rule is available on the Internet at https://www.fws.gov/midwest/Endangered and the rule and comments and materials 
received are available at https://www.regulations.gov at Docket No. FWS-
R3-ES-2013-0016. Comments and materials received, as well as supporting 
documentation used in the preparation of this rule, are also available 
for public inspection, by appointment, during normal business hours at: 
U.S. Fish and Wildlife Service, Ecological Services Field Office, 101 
Park DeVille Dr., Suite A, Columbia, MO 65203; telephone: 573-234-2132; 
facsimile: 573-234-2181. Persons who use a telecommunications device 
for the deaf (TDD) may call the Federal Information Relay Services 
(FIRS) at 800-877-8339.

FOR FURTHER INFORMATION CONTACT: Amy Salveter, Field Supervisor, U.S. 
Fish and Wildlife Service, Ecological Services Field Office, 101 Park 
DeVille Dr.; Suite A, Columbia, MO 65203, telephone: 573-234-2312; 
facsimile: 573-234-2181. Persons who use a telecommunications device 
for the deaf (TDD) may call the Federal Information Relay Services 
(FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION: 

Executive Summary

    Why we need to publish a rule. Under the Endangered Species Act of 
1973, as amended (16 U.S.C. 1531 et seq.) (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. Designations, revisions, and exclusions of critical 
habitat can only be completed by issuing a rule. This rule provides a 
rationale why all areas proposed for designation meet the requirements 
for exclusion under Section 4(b)(2) of the Act.
    We, the U.S. Fish and Wildlife Service (Service), proposed to list 
the grotto sculpin as an endangered species on September 27, 2012 (76 
FR 59488). On September 27, 2012, we published in the Federal Register 
a proposed critical habitat designation for the grotto sculpin. Section 
4(b)(2) of the Act states that the Secretary shall designate critical 
habitat on the basis of the best available scientific data after taking 
into consideration the economic impact, national security impact, and 
any other relevant impact of specifying any particular area as critical 
habitat.
    We can exclude an area from critical habitat if the benefits of 
exclusion outweigh the benefits of designation, unless the exclusion 
will result in the extinction of the species. The critical habitat 
areas we are excluding in this rule constitute our current best 
assessment of the areas that meet the definition of critical habitat 
for the grotto sculpin, and those areas where the benefits of exclusion 
from designation outweigh the benefits of inclusion. We are excluding 
critical habitat in Perry County, Missouri, as follows:
     Two units comprising all underground aquatic habitat 
underlying approximately 94 km\2\ (36.28 mi\2\).
     Two units that include approximately 31 kilometers (19.2 
miles) of surface stream.
    Economic analysis associated with previous proposal to designate 
critical habitat. In order to consider economic impacts of the proposed 
designation published in the Federal Register on September 27, 2012, we 
prepared a draft analysis of the economic impacts of the proposed 
critical habitat designation and related factors. We announced the 
availability of the draft economic analysis (DEA) in the Federal 
Register on May 7, 2013 (78 FR 26581), 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.
    Opportunity for the public to comment on the Perry County Community 
Conservation Plan. Concurrent with the DEA, we announced the 
availability of the Perry County Community Conservation Plan (PCCCP) in 
the Federal Register on May 7, 2013 (78 FR 26581), allowing the public 
to provide comments on the voluntary conservation measures outlined in 
the PCCCP to benefit the grotto sculpin. We have incorporated the 
comments and have completed an evaluation of the PCCCP concurrently 
with this final determination.
    Peer review and public comment. We sought comments from independent 
specialists to ensure that our proposal was based on scientifically 
sound data and analyses. We obtained opinions from two knowledgeable 
individuals with scientific expertise to review our technical 
assumptions, analysis, and whether 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 rule. We also considered 
all comments and information received from the public during the 
comment periods.

Previous Federal Actions

    Please see the listing rule published elsewhere in today's Federal 
Register for a complete history of previous Federal actions.

Background

    Below we discuss only those topics directly relevant to the 
designation of critical habitat for the grotto sculpin in this section 
of the rule. More information on the species' taxonomy, distribution, 
biology, life history, habitat, and threats can be found in the 
Service's proposed listing and critical habitat rule published 
September 27, 2012, in the Federal Register (77 FR 59488) and in the 
final listing rule published elsewhere in today's Federal Register.

Summary of Comments and Recommendations

    We requested written comments from the public on the proposed 
designation of critical habitat for the grotto sculpin during two 
comment periods. The first comment period associated with the 
publication of the proposed rule (77 FR 59488) opened on September 27, 
2012, and closed on November 26, 2012. We also requested comments on 
the proposed critical habitat designation and associated draft economic 
analysis during a comment period that opened May 7, 2013, and closed on 
June 6, 2013 (78 FR 26581). We did not receive any requests for a 
public hearing. We held a public meeting in Perryville, Missouri, on 
October 30, 2012. 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.
    During the first comment period, we received 35 comment letters 
directly addressing the proposed critical habitat designation. During 
the second comment period, we received six comment letters addressing 
the proposed critical habitat designation or the draft economic 
analysis. During the October 30, 2012, public meeting, numerous Perry 
County residents made

[[Page 58925]]

comments or asked questions on the proposed designation of critical 
habitat for the grotto sculpin. All substantive information provided 
during comment periods has either been incorporated directly into this 
final determination or addressed below. Comments received were grouped 
into 13 general issues specifically relating to the proposed critical 
habitat designation for the grotto sculpin and 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 three knowledgeable 
individuals with scientific expertise that included familiarity with 
the species, the geographic region in which the species occurs, fish 
ecology expertise, and conservation biology principles. We received 
responses from two of the peer reviewers.
    We reviewed all comments received from the peer reviewers for 
substantive issues and new information regarding critical habitat for 
the grotto sculpin. The peer reviewers generally concurred with our 
methods and conclusions and provided additional information, 
clarifications, and suggestions to improve the final listing rule but 
did not specifically address critical habitat.

Comments From States

    Section 4(i) of the Act states that ``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 grotto sculpin are addressed below.
    Comment: The Missouri Department of Conservation questioned the 
need for critical habitat designation and stated that working with 
private landowners on a voluntary basis to implement best management 
practices is a proven, practical, and effective approach to the 
protection and recovery of listed species.
    Our Response: Private landowners play a very important role in the 
management and conservation of threatened and endangered species. In 
fact, nearly 75 percent of listed species occur on private lands, in 
part because private landowners prove to be committed land stewards. 
The Service agrees that working cooperatively with private landowners 
to develop and implement a conservation plan that addresses the threats 
to the species can be an effective way to conserve the grotto sculpin. 
In order to exclude areas from critical habitat, however, we need to 
consider whether that partnership and the benefits it will provide to 
the species outweigh the benefits associated with designating critical 
habitat. The Service's determination to exclude critical habitat 
designation as outlined in this final rule is based, in part, on the 
strong commitment of multiple Federal, State, county, municipal, and 
private entities to implement the Perry County Community Conservation 
Plan.
    Comment: The Missouri Department of Conservation noted that their 
agency was in the process of developing a karst management plan to 
assist in the conservation of grotto sculpin, and suggested that such a 
document is an example of a proactive approach toward recovery of the 
species. This document has since been completed (Crites and Schubert 
2013, pp. 1-23).
    Our Response: The Service has considered the Missouri Department of 
Conservation's karst management plan, along with the Perry County 
Community Conservation Plan, in weighing the benefits of excluding 
critical habitat compared to those benefits of designating critical 
habitat. As discussed more fully under Exclusions, the conservation 
actions contained in those plans will sufficiently reduce threats to 
the species' habitat such that the benefits of designating critical 
habitat are greatly reduced.

Public Comments

    Comment: Several commenters questioned if critical habitat would 
economically impact businesses, hinder development and road building 
projects, reduce revenues within areas designated, or provide 
disincentives for companies wanting to locate in Perry County.
    Our Response: The potential impact of critical habitat designation 
on various business and development projects was analyzed in the draft 
and final economic analyses. In the DEA, incremental economic impacts 
over an 18-year period were estimated to be between $140,000 (a low-end 
scenario) and $4,000,000 (high-end scenario) (Industrial Economics Inc. 
2013, p. ES-5). In the low-end scenario, it was estimated that 76 
percent of the associated costs would involve development projects, 
while 12.5 percent pertained to agriculture and grazing and the 
remaining 11.3 percent to agriculture (Industrial Economics Inc. 2013, 
p. ES-8). In the high-end scenario, habitat and species management 
efforts resulting from implementing the Perry County Community 
Conservation Plan would account for approximately 96 percent of 
projected incremental impacts. The remaining costs are attributed to 
development, agriculture and grazing, and transportation (Industrial 
Economics Inc. 2013, pp. ES8-9). Additionally, in cases where a Federal 
nexus occurs (Federal property or where a Federal permit or Federal 
funds are involved), Federal agencies must determine if proposed 
projects would likely adversely modify critical habitat. Because the 
majority of proposed critical habitat was on private land, any 
potential impact of final designation on local economies would pertain 
to section 7(a)(2) requirements when a Federal permit or Federal funds 
were involved.
    Comment: One commenter asked if the Service would condemn private 
property designated as critical habitat.
    Our Response: No, the Service does not ``condemn'' land designated 
as critical habitat. Only activities that involve a Federal permit, 
license, or funding, and are likely to destroy or adversely modify the 
area of critical habitat would be affected if critical habitat were 
designated. If this is the case, we work with the Federal agency and, 
where appropriate, private or other landowners to amend their project 
to allow it to proceed without adversely affecting the critical 
habitat.
    Comment: One commenter inquired what costs would be associated with 
actions necessary to offset impacts to critical habitat.
    Our Response: Any costs associated with the proposed designation of 
critical habitat were covered in the DEA that was made available to the 
public on May 7, 2013 (78 FR 26581),
    Comment: One commenter asked how the designation of critical 
habitat would affect regulations associated with zoning and development 
in Perryville and Perry County.
    Our Response: As outlined above, in cases where a Federal nexus 
occurred and critical habitat was designated, Federal agencies would 
have to determine if proposed projects would likely adversely modify 
critical habitat. No other restrictions or regulations would be 
instituted if critical habitat was designated.
    Comment: One responder asked what reports or permits would be 
associated with critical habitat.
    Our Response: No additional permits or reports would be required 
for the designation of critical habitat other than permits that are 
required under other existing Federal (e.g., Sections 401 and 404 of 
the Clean Water Act) and State (e.g., water quality standards under 
Missouri Clean Water Law 640 and 644) statutes.

[[Page 58926]]

    Comment: Multiple commenters requested clarification of critical 
habitat boundaries, especially surface vs. subsurface areas, how they 
were determined, and if the Service could arbitrarily increase these 
areas in the future.
    Our Response: The proposed critical habitat boundaries were 
determined based on what we considered occupied habitat within two 
surface streams (Blue Spring Branch and Cinque Hommes Creek) and the 
recharge areas of five cave systems (Moore Cave, Crevice Cave, Mystery 
Cave, Rimstone River Cave, and Running Bull Cave). Grotto sculpin are 
known to occupy underground aquatic habitats including cave streams, 
springs, and resurgence areas. Consequently, the recharge zones of the 
caves listed above included all interconnected aquatic habitats between 
surface and subsurface areas. The Service cannot arbitrarily increase 
areas designated as critical habitat in the future. Any additional 
areas that may be determined to be essential to the conservation of the 
species in the future (see next response) can only be designated as 
critical habitat if such areas are outlined in a subsequent draft 
proposed rule that would be subject to the same review process, 
analysis, and final determination as was undertaken with this current 
rulemaking.
    Comment: Two commenters requested clarification of the definition 
of critical habitat and what factors are considered in a designation.
    Our Response: Under section 3 of the Act, critical habitat is 
defined 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. Areas essential to the conservation of the 
grotto sculpin were identified in the Service's proposed rule of 
September 27, 2012 (77 FR 59488). Section 4(b)(2) of the Act states 
that the Secretary shall designate or 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 impacts of specifying any particular area as 
critical habitat. The Secretary may exclude an area from critical 
habitat if she determines that the benefits of such exclusion outweigh 
the benefits of specifying such area as part of the critical habitat, 
unless she determines, based on the best scientific and commercial data 
available, that the failure to designate such area as critical habitat 
will result in the extinction of the species.
    Comment: One commenter asked if there are guidelines for best 
management practices and how such recommendations would be made 
available to private landowners.
    Our Response: Best management practices that target actions that 
could benefit the grotto sculpin on private property do exist, and such 
recommendations will be made available through various land management 
agencies who work cooperatively with private landowners (e.g., Natural 
Resources Conservation Service (NRCS), the University of Missouri Perry 
County Extension Service, the Missouri Department of Conservation's 
Private Lands Division, and the Service's Partners for Fish and 
Wildlife Program). Karst management guidelines are also available on 
the Missouri Department of Conservation's internet site at: https://mdc.mo.gov/your-property/improve-your-property/building-karst-best-practices. Additionally, the Missouri Department of Conservation (MDC) 
recently finalized management recommendations and best management 
practices for the grotto sculpin (Crites and Schubert 2013, pp. 16-20).
    Comment: Multiple commenters asked if funds would be available to 
private landowners to assist in implementing management practices or 
guidelines that contribute to the conservation of the grotto sculpin.
    Our Response: Various landowner incentive cost-share programs are 
available through NRCS, MDC, and the Service's Fish and Wildlife 
Program. The amount of available funding, however, depends on multiple 
factors, including Congressional appropriations, the type of actions 
needed, and the length of the appropriate cost-share agreement.
    Comment: Multiple commenters asked what enforcement mechanisms 
would be associated with critical habitat if designated and who would 
enforce such regulations.
    Our Response: The designation of critical habitat would not result 
in the initiation of any separate enforcement provisions. As outlined 
above, in cases where a Federal nexus occurred and critical habitat was 
designated, Federal agencies would have to determine if proposed 
projects would likely adversely modify critical habitat.
    Comment: Multiple commenters provided support for the Perry County 
Community Conservation Plan (PCCCP) and stated that implementation of 
the plan would address threats to the species, improve water quality, 
and contribute to the conservation of the grotto sculpin such that the 
species should not be listed or should be listed as threatened rather 
than endangered, or that critical habitat should not be designated. The 
Service did not receive any comments in opposition to the PCCCP.
    Our Response: As stated elsewhere in this final rule, the Service 
agrees that the actions outlined in the PCCCP address threats to the 
species such that critical habitat should be excluded from designation. 
Working collaboratively with the residents of Perry County and other 
Federal, State, and local partners is the most effective and proactive 
approach to conservation of this species. However, there is not yet 
sufficient evidence that the PCCCP is adequate to avoid listing the 
grotto sculpin. Nonetheless, the Service will reevaluate the status of 
the grotto sculpin during a 5-year review subsequent to its listing.
    Comment: One agency questioned the estimated economic impact 
related to formal consultations associated with Federal projects that 
were anticipated within areas designated as critical habitat. This 
agency noted that if critical habitat were designated, it would work 
closely with the Service through informal consultation to implement 
conservation measures that would avoid any potential adverse 
modification to critical habitat.
    Our Response: Had critical habitat been designated, the Service 
would prefer informal over formal consultation to avoid any potential 
adverse modification to critical habitat. However, in light of our 
decision to exclude areas proposed for critical habitat designation, 
this is no longer a relevant issue.
    Comment: One commenter noted that the inability to establish 
recovery benchmarks for the grotto sculpin at this time devalued the 
draft economic analysis related to proposed critical habitat 
designation.
    Our Response: Despite the lack of recovery benchmarks, the Service 
is required to conduct an economic analysis for any critical habitat 
that is proposed. The Service is currently in the process of 
establishing a recovery outline for the grotto sculpin to establish 
conservation priorities until a recovery plan can be developed.
    Comment: One commenter stated that species protection and recovery 
are more effectively achieved by providing

[[Page 58927]]

incentives to landowners rather than imposing land-use restrictions and 
penalties associated with critical habitat.
    Our Response: As noted in the Service's proposed rule of September 
27, 2013 (77 FR 59488), there would have been minimal impact to private 
landowners had critical habitat been designated and such a designation 
would not have imposed land-use restrictions and penalties on private 
property. The Service supports cooperative partnerships that address 
threats to listed species and their habitat through conservation 
planning as in the case of the PCCCP. Additionally, the Service 
supports multiple landowner incentive programs that can assist private 
land owners in the implementation of conservation measures outlined in 
a collaborative plan. Such programs are available through multiple 
Federal and State agencies, and we remain hopeful that the funding 
necessary for implementation will remain available. The Service 
acknowledges, however, that the availability of funds for various 
Federal and State landowner incentive programs depends on multiple 
factors.

Summary of Changes From Proposed Rule

    In the proposed rule published on September 27, 2012 (77 FR 59488), 
we proposed four units, totaling approximately 94 km\2\ (36.28 mi\2\) 
plus 31 kilometers (19.2 miles) of surface stream as critical habitat 
for the grotto sculpin. Subsequent to publication of the proposed rule, 
a collaborative partnership involving Federal, State, county, 
municipal, and private entities developed the Perry County Community 
Conservation Plan. The plan outlines detailed conservation measures 
that address threats to habitat that were identified in the proposed 
rule. We considered this conservation plan and the working partnership 
with those entities in evaluating potential exclusions from critical 
habitat. Based on that analysis, as discussed fully under Exclusions 
below, we determined that all areas that were proposed as critical 
habitat should be excluded from this final designation.

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 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 (PCEs), 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.

[[Page 58928]]

    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 areas proposed for 
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

    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 the grotto sculpin 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 27, 2012 (77 FR 59488), and in the information 
presented below. Additional information can be found in the final 
listing rule published elsewhere in today's Federal Register, and based 
on published literature (Burr et al. 2001, pp. 276-279; Gerken and 
Adams 2008, pp. 74-78; Adams et al. 2013, pp. 484-494), unpublished 
reports, and professional opinions by recognized experts. While little 
is known of the specific habitat requirements for this species, the 
best available information shows that the species requires adequate 
water quality, quantity, and flow, a stable stream channel, minimal 
sedimentation, organic input into caves during rain events, and a 
sufficient prey base for juveniles (Burr et al. 2001, pp. 291, 294-295; 
Gerken and Adams 2008, pp. 74-76; Adams et al. 2013, pp. 484-494). Due 
to the complex nature of the multiple karst regions in Perry County, 
diverse hydrologic components will be essential to the conservation of 
grotto sculpin; these include cave streams, resurgences, springs, 
surface streams, and surface and subterranean interconnected or 
interspatial habitats (Vandike 1985, pp. 1-10; Day 2008, pp. 22-24; 
Adams et al. 2013, p. 493). To identify the physical and biological 
features essential to the grotto sculpin, we relied on current 
conditions at locations where the species survives and the information 
available on this species.
Space for Individual and Population Growth and for Normal Behavior
    The specific space requirements for the grotto sculpin are unknown, 
but given the mixture of habitats used by different life stages of this 
fish (Burr et al. 2001, p. 284; Gerken and Adams 2008, p. 76), space is 
not likely a limiting factor; however, silt and various pollutants may 
affect the species' overall distribution and abundance (Burr et al. 
2001, p. 294; Gerken and Adams 2008, p. 76). Grotto sculpin occupy cave 
streams, resurgences (also known as ``spring branches'') (Vandike 1985, 
p. 10), springs, and surface streams (Adams 2012, pers. comm.; Adams et 
al. 2013, pp. 491-493; Burr et al. 2001, p. 284). They occupy pools and 
riffles with moderate flows and variable depths (4 to 33 centimeters 
(cm) (1.6 to 13 in)) (Burr et al. 2001, p. 284). Although grotto 
sculpin have been documented to occur over a variety of substrates (for 
example, silt, gravel, cobble, rock rubble, and bedrock), the presence 
of cobble or pebble is necessary for spawning (Burr et al. 2001, p. 
284; Adams et al. unpub. data; Adams et al. 2013, pp. 491-492).
    Grotto sculpin tend to be associated with an abundance of 
invertebrate prey, deeper cave pools, substrate containing cobble, and 
sustained water flow (Gerken 2007, pp. 16-17). Surface habitat used by 
grotto sculpins is characterized by an abundance of amphipods and 
isopods. In caves, grotto sculpins occupy deeper pools with cobble, and 
with a relatively high abundance of amphipods and isopods. Although 
usually in lower abundance, grotto sculpins also occupy shallow cave 
pools where the substrate consists of silt deposits deeper than 1.9 cm 
(0.8 in) (Gerken 2007, p. 16). Juvenile grotto sculpins use resurgences 
as nursery areas, where they maximize growth before migrating upstream 
into caves to reproduce or downstream to surface streams (Day 2008, p. 
18).
    Habitat conditions described above provide space, cover, shelter, 
and sites for foraging, breeding, reproduction, and growth of offspring 
for the grotto sculpin. These habitats are found in cave streams, 
resurgences, springs, and surface streams; therefore, we identify those 
elements as physical or biological features essential to the 
conservation for grotto sculpin. Additionally, interconnected karst 
areas and interstitial spaces that allow for the free flow of water 
between occupied surface and subsurface habitats are primary components 
of essential physical and biological features for the grotto sculpin.
Food, Water, Air, Light, Minerals, or Other Nutritional or 
Physiological Requirements
    Although the specific food items of grotto sculpin have not been 
determined, they are likely similar to

[[Page 58929]]

the diet of banded sculpin. Banded sculpin prey include 
ephemeropterans, dipterans, chronomids, gastropods, amphipods, isopods, 
fish, spiders, aquatic oligochaetes, caddisflies, damselfly larvae, 
ostracods, stoneflies, beetles, crayfish, and salamanders (Phillips and 
Kilambi 1996, pp. 69-72; Pflieger 1997, p. 253; Tumlinson and Cline 
2002, pp. 111-112; Niemiller et al. 2006, p. 43). Prey availability is 
related to the organic input that is transported with sediment and 
other organic materials via sinkholes into stream habitats (Burr et al. 
2001, p. 291). An abundance of aquatic invertebrates is necessary to 
support a viable population of grotto sculpin (Niemiller et al. 2006, 
p. 43; Gerken and Adams 2008, p. 75). Therefore, based on this 
information, we identify the availability of appropriate organic input 
supporting the aquatic invertebrate prey base to be a primary component 
of the essential physical and biological features for the grotto 
sculpin.
    The grotto sculpin occurs in pools and riffles of cave streams, 
resurgences, springs, and surface streams (Burr et al. 2001, pp. 280-
284; Adams 2012, pers. comm.; Adams et al. 2013, pp. 491-493). It can 
occur over multiple substrates including sand, silt, gravel, pebble, 
cobble, breakdown, and bedrock, although the association with silt 
might be due to the prevalence of sediment within occupied habitat 
rather than a preference for such substrates (Vandike 1985, p. 38; Burr 
et al. 2001, p. 284; Gerken 2007, pp. 13, 22-25; Gerken and Adams 2008, 
pp. 76-77).
    Optimum water temperature, flow rates, and water depth in occupied 
streams have not been established for grotto sculpin and vary widely 
depending on life stage and location (e.g., pools of cave streams 
versus flowing water in resurgences or surface streams) (Gerken 2007, 
pp. 20-27). Water depth varied, but ranged between 4 and 33 cm (1.6 and 
13.0 in), and flow rates were between .05 and 6.67 cm/sec (0.2 and 2.6 
in/sec) (Burr et al. 2001, p. 284; Gerken 2007, p. 17).
    Occupied cave streams, resurgences, springs, surface streams, 
interconnected karst areas, and interstitial spaces should have reduced 
levels of silt, sustained water flows, high dissolved oxygen levels, 
and reduced amounts of organic and inorganic contaminants. 
Interconnected karst areas and interstitial spaces should be free of 
debris and have reduced levels of silt to allow for free flow of water 
between occupied habitats. Water quality standards for contaminants 
should follow guidelines established by the Environmental Protection 
Agency, except for ammonia and copper. Water quality criteria for 
ammonia and copper should follow minimum levels reported by Wang et al. 
(2007, pp. 2048-2055) and established for juvenile freshwater mussels 
(less than 4.6 parts per billion copper per liter and less than 370 
parts per billion ammonia expressed as nitrogen per liter).
    Optimum water quality parameters have not been determined for the 
grotto sculpin. Habitat information for other species that inhabit cave 
streams and springs in Missouri (such as the endangered Tumbling Creek 
cavesnail) may be used as suitable surrogates for the grotto sculpin. 
In the absence of information specific to the grotto sculpin's water 
quality needs, we believe the criteria established for the Tumbling 
Creek cavesnail are also suitable for the grotto sculpin. Therefore, we 
recommend the following water quality parameters for the grotto 
sculpin: An average daily discharge of 0.07 to 150 cubic feet per 
second (cfs); water temperature of cave streams, springs, resurgences, 
and surface streams should be between 55 and 62 [deg]F (12.78 and 16.67 
[deg]C); dissolved oxygen levels should equal or exceed 4.5 milligrams 
per liter; and turbidity of an average monthly reading should not 
exceed 200 Nephelometric Units (units used to measure sediment 
discharge) and should not persist for a period greater than 4 hours. 
Adequate water flow, temperature, and quality (as defined above) are 
essential for normal behavior, growth, and viability during all life 
stages of the grotto sculpin. Therefore, based on the information 
above, we identify adequate water flow, temperature, and quality to be 
physical and biological features essential to the conservation for the 
grotto sculpin.
Cover or Shelter
    Burr et al. (2001, p. 284) noted that grotto sculpin occur in the 
open as well as under rocks. Rocks within cave streams allow the grotto 
sculpin to avoid predators (Gerken 2007, p. 25); at least six different 
species of piscivorous, predatory fish occur within occupied grotto 
sculpin habitat (Burr et al. 2001, p. 284). Additionally, rocks provide 
a substrate for egg laying (Gerken 2007, p. 2; Adams 2005, p. 10; Adams 
et al. 2013, p. 492). In addition to rocks, large cobble has been 
identified as an important component of sculpin habitat (Gerken 2007, 
pp. 22-27).
    Due to the wide variety of habitats used by grotto sculpin 
depending on age and season (Burr et. al 2001, pp. 283-284, 294; Gerken 
2007, pp. 27-30; Gerken and Adams 2008, pp. 75-76), occupied 
underground and surface aquatic habitats including associated 
transitional aquatic habitats are all essential physical or biological 
features for the species. The grotto sculpin requires cave and surface 
streams with a stable stream bottom and solid bedrock and stable stream 
banks to maintain a stable horizontal dimension and vertical profile of 
pool and riffle habitats. A mixture of bottom substrates, including 
sand, gravel, pebbles, cobble, ceiling breakdown areas and larger 
rocks, is necessary to provide cover and attachment surfaces for egg 
masses (Adams et al. 2013, pp. 491-492). Additionally, bottom 
substrates must not be covered with excessive amounts of silt.
    Therefore, based on the information above, we identify the 
following as primary components of the physical or biological features 
essential to the conservation of the grotto sculpin: Cave streams, 
resurgences, springs, surface streams, and interconnected areas between 
surface and subterranean habitats with stable bottom and banks; rocks 
or large cobble to provide cover; and substrates consisting of fine 
gravel with coarse gravel or cobble, or bedrock with sand and gravel, 
with low amounts of fine sand and sediments within the interstitial 
spaces of the substrates.
Sites for Breeding, Reproduction, or Rearing
    Adams (2005, p. 10; Adams et al. 2008, p. 8; Gerken 2007, pp. 19-
21) demonstrated that grotto sculpin spawn in caves but some young-of-
the-year move to resurgences or surface streams and spend much of their 
lives away from caves. Juvenile grotto sculpin likely move out of caves 
to avoid predation by adult sculpin (Gerken 2007, p. 19) or move to 
take advantage of higher levels of prey in such habitats (Burr et al. 
2001, p. 291; Gerken 2007, pp. 19-20; Day 2008, pp. 18-21). Gerken 
(2007, p. 19) and Day (2008, p. 18) postulated that juvenile grotto 
sculpin use resurgences and surface streams as nursery areas to gain 
size by taking advantage of increased food resources. At some point in 
their maturation process, juvenile sculpin move from resurgences and 
surface streams into caves to complete their life cycle (Gerken 2007, 
p. 19; Day 2008, p. 18). Based on the information above, consistent 
connectivity between cave streams and resurgences or surface streams is 
a primary component of the physical or biological features essential to 
the conservation for the grotto sculpin because they allow for the free 
flow of water between occupied surface and subsurface habitats.

[[Page 58930]]

Primary Constituent Elements for the Grotto Sculpin
    Under the Act and its implementing regulations, we are required to 
identify the physical or biological features essential to the 
conservation of the grotto sculpin 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 grotto sculpin are:
    (1) Geomorphically stable stream bottoms and banks (stable 
horizontal dimension and vertical profile) with riffles, runs, pools, 
and transition zones between these stream features.
    (2) Instream flow regime with an average daily discharge between 
0.07 and 150 cubic feet per second (cfs), inclusive of surface runoff, 
cave streams, resurgences, springs, and occupied surface streams and 
all interconnected karst areas with flowing water.
    (3) Water temperature between 12.8 and 16.7 [deg]C (55 and 62 
[deg]F), dissolved oxygen 4.5 milligrams or greater per liter, and 
turbidity of an average monthly reading of no more than 200 
Nephelometric Turbidity Units for a duration not to exceed 4 hours.
    (4) Adequate water quality characterized by low levels of 
contaminants. Adequate water quality is defined as the quality 
necessary for normal behavior, growth, and viability of all life stages 
of the grotto sculpin.
    (5) Bottom substrates consisting of a mixture of sand, gravel, 
pebble, cobble, solid bedrock, larger cobble and rocks for cover, with 
low amounts of sediments.
    (6) Abundance of aquatic invertebrate prey base to support the 
different life stages of the grotto sculpin.
    (7) Connected underground and surface aquatic habitats that provide 
for all life stages of the grotto sculpin, with sufficient water levels 
to facilitate movement of individuals among habitats.

Special Management Considerations or Protections

    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 may require special management considerations or 
protection. The features essential to the conservation of grotto 
sculpin center around attributes that highlight the importance of water 
quality within the karst recharge areas of occupied cave streams, 
resurgences, and surface streams. Special management considerations or 
protection are required within occupied habitats to address these 
threats. Management activities that could ameliorate these threats 
include (but are not limited to) actions that:
    (1) Minimize potential adverse effects from contaminants 
originating from sinkholes where trash, debris, chemical containers, or 
animal carcasses have been deposited;
    (2) reduce soil erosion and silt deposition;
    (3) reduce storm runoff of potentially harmful agricultural 
pesticides, various oil pollutants, and other sources of water soluble 
contaminants;
    (4) implement best management practices to minimize possible 
contamination from septic systems;
    (5) provide recommendations that improve the efficiency and 
efficacy of vertical drains;
    (6) place and manage vegetative buffers around vertical drains 
designed to reduce soil erosion, reduce water flow, and improve the 
quality of water runoff;
    (7) implement best management practices to minimize potential 
impacts from residential, commercial, industrial and agricultural 
development;
    (8) provide recommendations that significantly reduce sources of 
nitrification and fecal coliform and coliform bacteria originating from 
domestic livestock;
    (9) implement best management practices that enhance surface stream 
and riparian corridor stability;
    (10) enforce existing Federal and State regulations that are in 
place to maintain high water quality standards;
    (11) minimize, enhance, and conserve water levels of underground 
aquifers, cave streams, resurgences, springs, and surface streams; and
    (12) provide technical assistance through public outreach and 
education.

Criteria Used To Identify Critical Habitat

    As required by section 4(b)(2) of the Act, we used the best 
scientific data available to identify 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 identifying any areas outside the geographical area occupied by 
the species because occupied areas are sufficient for the conservation 
of the species.
    In order to determine which sites are currently occupied, we used 
information from surveys conducted by Burr et al. (2001, pp. 280-286), 
Adams (2005, pp. 11-13), Day (2008, pp. 9-11; 62-66), Gerken (2007, pp. 
5-8), and Gerken and Adams (2008, pp. 74-76), dye tracing studies 
conducted by Moss and Pobst (2010, pp. 146-160, 177, 180-192) and 
information provided by Adams et al. (2013, pp. 484-494). Currently, 
occupied habitat for the species includes all cave streams, 
resurgences, springs, and surface streams associated with the recharge 
areas for the Moore Cave System, the Crevice Cave System, Mystery Cave, 
Rimstone River Cave, Running Bull Cave, and Hot Caverns; as well as 
Thunder Hole Resurgence, Mystery Cave Resurgence, Cinque Hommes Creek, 
and Blue Spring Branch. After identifying the specific locations 
occupied by the grotto sculpin, we determined the appropriate area of 
occupied segments of aquatic habitats essential for the conservation of 
the species. These areas are collectively contained within the Central 
Perryville and Mystery-Rimstone karst areas as described by House 
(1976, pp. 13-14) and Burr et al. (2001, pp. 280-282).
    Although there are underground portions within the Central 
Perryville and Mystery-Rimstone karst areas that are inaccessible to 
humans, all underground aquatic habitats within the recharge zones of 
the Moore Cave System, the Crevice Cave System, Mystery Cave, Rimstone 
River Cave, Running Bull Cave, Thunder Hole Resurgence, Mystery Cave 
Resurgence, Cinque Hommes Creek, and Blue Spring Branch are believed to 
be occupied by the grotto sculpin. Areas delineated within the Central 
Perryville and Mystery-Rimstone karst areas are believed to comprise 
the entire known range of the grotto sculpin and components of these 
areas as outlined above were used in the proposed critical habitat 
designation of September 27, 2012 (77 FR 59488).
    We are excluding all units from critical habitat for the grotto 
sculpin, as described below. For a description of the areas that were 
proposed as critical habitat (and excluded in this final rule) see the 
September 27, 2012, proposal

[[Page 58931]]

(77 FR 59488). We determined that 94 km\2\ (36 mi\2\) of aquatic, 
karst, nonsurface stream habitat (includes caves, resurgent streams, 
and interconnective underground aquatic areas) and 31 km (19 mi) of two 
surface streams met the definition for critical habitat for grotto 
sculpin. We are excluding all of those areas from designation in this 
final rule.

Final Determination for Critical Habitat and Effects of Critical 
Habitat Designation

    In the proposed rule published on September 27, 2012 (77 FR 59488), 
we proposed four units, totaling approximately 94 km\2\ (36.28 mi\2\) 
plus 31 kilometers (19.2 miles) of surface stream as critical habitat 
for the grotto sculpin. Subsequent to publication of the proposed rule, 
a collaborative partnership involving Federal, State, county, 
municipal, and private entities developed the Perry County Community 
Conservation Plan. The plan outlines detailed conservation measures 
that address threats to habitat that were identified in the proposed 
rule. We considered this conservation plan and the working partnership 
with those entities in evaluating potential exclusions from critical 
habitat. Based on that analysis, as discussed fully under Exclusions 
below, we determined that all areas that were proposed as critical 
habitat should be excluded from this final designation. Because we are 
excluding all areas from designation (that is, we are not designating 
critical habitat) for the grotto sculpin, typical requirements under 
section 7(a)(2) of the Act are not applicable.

Exemptions

Application of Section 4(a)(3) of the Act

    The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a) 
required each military installation that includes land and water 
suitable for the conservation and management of natural resources to 
complete an Integrated Natural Resources Management Plan (INRMP) by 
November 17, 2001. An INRMP integrates implementation of the military 
mission of the installation with stewardship of the natural resources 
found on the base. Each INRMP includes:
    (1) An assessment of the ecological needs on the installation, 
including the need to provide for the conservation of listed species;
    (2) A statement of goals and priorities;
    (3) A detailed description of management actions to be implemented 
to provide for these ecological needs; and
    (4) A monitoring and adaptive management plan.
    Among other things, each INRMP must, to the extent appropriate and 
applicable, provide for fish and wildlife management; fish and wildlife 
habitat enhancement or modification; wetland protection, enhancement, 
and restoration where necessary to support fish and wildlife; and 
enforcement of applicable natural resource laws.
    The National Defense Authorization Act for Fiscal Year 2004 (Pub. 
L. 108-136) amended the Act to limit areas eligible for designation as 
critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16 
U.S.C. 1533(a)(3)(B)(i)) now provides: ``The Secretary shall not 
designate as critical habitat any lands or other geographical areas 
owned or controlled by the Department of Defense, or designated for its 
use, that are subject to an integrated natural resources management 
plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if 
the Secretary determines in writing that such plan provides a benefit 
to the species for which critical habitat is proposed for 
designation.''
    There are no Department of Defense lands with a completed INRMP 
within the proposed critical habitat designation of September 27, 2012 
(77 FR 59488). Therefore, our decision to exclude critical habitat for 
the grotto sculpin is not pursuant to any exemption under section 
4(a)(3)(B)(i) of the Act.

Exclusions

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

    Section 4(b)(2) of the Act states that the Secretary shall 
designate and make revisions to critical habitat on the basis of the 
best available scientific data after taking into consideration the 
economic impact, national security impact, and any other relevant 
impact of specifying any particular area as critical habitat. The 
Secretary may exclude an area from critical habitat if she determines 
that the benefits of such exclusion outweigh the benefits of specifying 
such area as part of the critical habitat, unless she 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.
    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.
    When identifying the benefits of inclusion for an area, we consider 
the additional regulatory benefits that area would receive from the 
protection from adverse modification or destruction as a result of 
actions with a Federal nexus; the educational benefits of mapping 
essential habitat for recovery of the listed species; and any benefits 
that may result from a designation due to State or Federal laws that 
may apply to critical habitat.
    When identifying the benefits of exclusion, we consider, among 
other things, whether exclusion of a specific area is likely to result 
in conservation; the continuation, strengthening, or encouragement of 
partnerships; or implementation of a management plan that provides 
equal to or more conservation than a critical habitat designation would 
provide.
    In the case of grotto sculpin, the benefits of critical habitat 
include public awareness of grotto sculpin presence and the importance 
of habitat protection, and in cases where a Federal nexus exists, 
increased habitat protection for grotto sculpin due to the protection 
from adverse modification or destruction of critical habitat.
    When we evaluate the existence of a conservation plan when 
considering the benefits of exclusion, we consider a variety of 
factors, including but not limited to, whether the plan is finalized; 
how it provides for the conservation of the essential physical or 
biological features; whether there is a reasonable expectation that the 
conservation management strategies and actions contained in a 
management plan will be implemented into the future; whether the 
conservation strategies in the plan are likely to be effective; and 
whether the plan contains a monitoring program or adaptive management 
to ensure that the conservation measures are effective and can be 
adapted in the future in response to new information.
    After identifying the benefits of inclusion and the benefits of 
exclusion, we carefully weigh the two sides to evaluate whether the 
benefits of exclusion outweigh those of inclusion. If our analysis 
indicates that the benefits of exclusion outweigh the benefits of 
inclusion, we then determine whether

[[Page 58932]]

exclusion would result in extinction. If exclusion of an area from 
critical habitat will result in extinction, we will not exclude it from 
the designation.
    Based on the information provided by entities seeking exclusion, as 
well as any additional public comments received, we evaluated whether 
certain lands in the proposed critical habitat (Unit 1: Central 
Perryville Karst Area; Unit 2: Mystery-Rimstone Karst Area; Unit 3: 
Blue Spring Branch; and Unit 4: Cinque Hommes Creek) were appropriate 
for exclusion from this final designation pursuant to section 4(b)(2) 
of the Act. We are excluding all areas from critical habitat 
designation for the grotto sculpin. Tables 1 and 2 below provide 
approximate areas (km\2\ (mi\2\); km (mi)) of lands that meet the 
definition of critical habitat but are being excluded under section 
4(b)(2) of the Act from the final critical habitat rule.

   Table 1--Nonsurface Stream Areas Excluded From the Designation of Critical Habitat by Critical Habitat Unit
----------------------------------------------------------------------------------------------------------------
                                                                                Areas meeting
                                                                               the definition    Areas excluded
             Unit                               Specific area                    of critical      from critical
                                                                                 habitat, in       habitat, in
                                                                                Km\2\ (Mi\2\)     Km\2\ (Mi\2\)
----------------------------------------------------------------------------------------------------------------
1.............................  Central Perryville Karst Area...............           46 (18)           46 (18)
2.............................  Mystery-Rimestone Karst Area................           48 (19)           48 (19)
                               ---------------------------------------------------------------------------------
    Total.....................  ............................................           94 (36)           94 (36)
----------------------------------------------------------------------------------------------------------------


    Table 2--Surface Stream Areas Excluded From the Designation of Critical Habitat by Critical Habitat Unit
----------------------------------------------------------------------------------------------------------------
                                                                                Areas meeting
                                                                               the definition    Areas excluded
             Unit                               Specific area                    of critical      from critical
                                                                               habitat, in Km    habitat, in Km
                                                                                    (Mi)              (Mi)
----------------------------------------------------------------------------------------------------------------
3.............................  Blue Spring Branch..........................             6 (4)             6 (4)
4.............................  Cinque Hommes Creek.........................           24 (14)           24 (14)
                               ---------------------------------------------------------------------------------
    Total.....................  ............................................           31 (19)           31 (19)
----------------------------------------------------------------------------------------------------------------

    We are excluding these areas because we believe that:
    (1) Their value for conservation will be preserved for the 
foreseeable future by existing protective actions, or
    (2) They are appropriate for exclusion under the ``other relevant 
factor'' provisions of section 4(b)(2) of the Act.
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 Incorporated 2013).
    The intent of the final economic analysis (FEA) is to quantify the 
economic impacts of all potential conservation efforts for the grotto 
sculpin; 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 
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 18 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 an 18-year timeframe.
    Due to uncertainties associated with the Service's ability to 
quantify potential incremental conservation efforts resulting from the 
designation of critical habitat, it was difficult to predict what 
projects would likely generate recommendations for additional 
conservation measures (Industrial Economics Incorporated 2013, pp. 4-
21). Nonetheless, the Service anticipated that the designation of 
critical habitat would not likely preclude development in Perry County. 
Consequently, because any impacts associated with additional 
conservation efforts are not anticipated to have a substantial effect 
on the regional economy (Industrial Economics Incorporated 2013, pp. 4-
21).

[[Page 58933]]

Consequently, no areas are excluded based on economic impacts. A copy 
of the FEA with supporting documents may be obtained by contacting the 
Columbia, Missouri Ecological Services Field Office (see ADDRESSES) or 
by downloading from the Internet at https://www.fws.gov/midwest/Endangered or https://www.regulations.gov. at Docket No. FWS-R3-ES-2013-
0016.
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 any conservation partnerships 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, as explained below.

Land and Resource Management Plans, Conservation Plans, or Agreements 
Based on Conservation Partnerships

    We consider a current land management or conservation plan (HCPs as 
well as other types) to provide adequate management or protection if it 
meets the following criteria:
    (1) The plan is complete and provides the same or better level of 
protection from adverse modification or destruction than that provided 
through a consultation under section 7 of the Act;
    (2) There is a reasonable expectation that the conservation 
management strategies and actions will be implemented for the 
foreseeable future, based on past practices, written guidance, or 
regulations; and
    (3) The plan provides conservation strategies and measures 
consistent with currently accepted principles of conservation biology.
    We believe that the Perry County Community Conservation Plan 
fulfills the above criteria, and are excluding non-Federal lands 
covered by this plan that provide for the conservation of the grotto 
sculpin.

Perry County Community Conservation Plan

    The Perry County Community Conservation Plan (PCCCP) is a 
collaborative and cooperative plan involving 56 entities and 
organizations (Perry County Community Economic and Environment 
Committee (PCCEEC)) in Perry County, Missouri, who are committed to the 
ongoing implementation of conservation measures that benefit the grotto 
sculpin and address threats identified in the proposed rule of 
September 27, 2012 (77 FR 59488) and the final listing rule published 
elsewhere in today's Federal Register. Entities and residents of Perry 
County have been, and continue to be, committed to implementing land 
use practices that provide conservation benefits to the grotto sculpin 
(PCCEEC 2013, pp. 48-119), but the PCCEEC is committed to the 
implementation of additional measures that will address threats to the 
species into the foreseeable future (PCCEEC 2013, p. 42). Evidence of 
the PCCEEC's commitment to the PCCCP is demonstrated by an estimation 
that no less than $250,000 has been devoted to the completion of this 
plan since November 2012 (PCCEEC 2013, p. 42). As of April 2013, PCCEEC 
became a permanent group formed to ensure that actions outlined in the 
PCCCP would be ongoing and implemented into the future (PCCEEC 2013, p. 
42).
    In addition to conservation measures outlined in the PCCCP, the 
PCCEEC adopted the Missouri Department of Conservation's Best 
Management Practices (BMPs) for karst areas (available at: https://mdc.mo.gov/your-property/improve-your-property/building-karst-best-practices) (PCCEEC 2013, p. 21), and is committed to practices that are 
outlined in a Perry County karst management plan (Crites 2013, pers. 
comm.; Crites and Schubert 2013, pp. 16-20) and a broader interagency 
Perry County Karst Watershed Plan that is in development (PCCEEC 2013, 
p. 43). The Perry County karst management plan and the Perry County 
Karst Watershed Plan that is in development will further highlight the 
partnership between the PCCEEC and its Federal, State, and private 
partners and will outline multiple actions that will improve, enhance, 
and maintain grotto sculpin karst and surface stream habitats. The 
Perry County Karst Management Plan covers areas beyond those that were 
proposed as critical habitat for the species (Crites and Schubert 2013, 
pp. 2-3) and will further contribute to improved water quality of 
aquatic karst areas within Perry County.
    The PCCEEC's commitment to the conservation of the grotto sculpin 
is further demonstrated by the numerous planned conservation actions 
outlined in the PCCCP that are scheduled between April 2013 and April 
2014 (PCCEEC 2013, pp. 42-45). Conservation projects to benefit the 
species include numerous outreach events; removing trash and debris 
from sinkholes; water quality monitoring; developing a new sinkhole 
policy and sinkhole improvement budget for the City of Perryville; and 
inventorying and prioritizing sinkholes targeted for cleanup, 
maintenance, and management. The PCCCP incorporates the principles of 
adaptive management, and the document will continually be updated as 
new information becomes available (PCCEEC 2013, pp. 5, 46). 
Additionally, the plan contains a monitoring component that will 
provide a basis for evaluating the effectiveness of the plan (PCCEEC 
2013, p. 46). Because the grotto sculpin is dependent on the health of 
the aquatic environment, adequate water quality monitoring will be 
essential to assess the effectiveness of actions implemented under the 
PCCCP. In cooperation and collaboration with the Missouri Department of 
Natural Resources and the Perry County Health Department, regular water 
quality monitoring is anticipated in habitats occupied by the sculpin 
(PCCEEC 2013, p. 42, 44).
    Because all the areas that meet the definition of critical habitat 
proposed in our September 27, 2012, proposed rule (77 FR 59488) are 
primarily on private land, a strong partnership between private 
landowners and Federal, State, and local agencies is essential to the 
conservation and recovery of the grotto sculpin. Assessing the 
effectiveness of the PCCCP will require regular monitoring of the 
status of the grotto sculpin, and the access to private property will 
be critical to such monitoring. The private landowner of one cave 
occupied by the grotto sculpin has denied access to the site, and the 
inability to monitor the species at other localities would further 
hinder the potential to implement on-the-ground actions that would 
contribute to the conservation and recovery of the grotto sculpin. 
Excluding these areas from critical habitat will further enhance the 
partnership and trust that currently exists between Federal, State, and 
private entities and will encourage cooperation among private 
landowners who otherwise may be reluctant to participate in the 
collaboration. In a study that evaluated the potential adverse impacts 
of critical habitat designation for the Preble's meadow jumping mouse 
(Zapus hudsonius preblei), Brook et al. (2003, pp. 1638, 1644; 
Seasholes 2007, p. 8) reported that 56 percent of landowners 
interviewed

[[Page 58934]]

would not grant permission to survey for the species on their property. 
Because interested entities cannot force access onto private property 
to conduct biological surveys, the inability to conduct such 
inventories would jeopardize the ability to conserve and recover such 
species.
    In evaluating a conservation plan, the Service considers whether 
the plan is complete and if it provides the same or better level of 
protection from adverse modification or destruction than that provided 
through a consultation under section 7 of the Act. We have evaluated 
the PCCCP and determined that it is complete and adequately addresses 
threats to habitats occupied by the grotto sculpin. Because all areas 
proposed as critical habitat in our September 27, 2012, proposed rule 
(77 FR 59488) are on private land, it is anticipated that there would 
be few Federal nexuses where a consultation under section 7(a)(2) of 
the Act would be necessary. The PCCCP will provide the opportunity to 
undertake various conservation benefits that benefit the grotto sculpin 
in areas that would not be covered through environmental review through 
section 7(a)(2) consultation. Because many of the actions outlined in 
the PCCCP, the Missouri Department of Conservation's Perry County karst 
management plan (Crites and Schubert 2013, pp. 16-20), and the draft 
Perry County Karst Watershed Plan involve recommendations that will 
benefit areas occupied by the grotto sculpin, we believe that these 
documents will provide the same or a better level of protection from 
adverse modifications to these habitats. How threats identified in the 
proposed listing rule of September 27, 2012 (77 FR 59488), and the 
final listing rule published elsewhere in today's Federal Register are 
addressed by the PCCCP is summarized in Table 3.

Table 3--Perry County Community Conservation Plan Actions That Address Threats Identified in the Service's Final
                          Listing Rule Published Elsewhere in Today's Federal Register
----------------------------------------------------------------------------------------------------------------
             Threat                   Plan of action to address threat       Cooperators or participating entity
----------------------------------------------------------------------------------------------------------------
Debris and chemicals in          Sinkhole cleanup; vegetated buffers;        CP, MDC-PLD, NRCS, PCCEEC, PCFB,
 sinkholes and groundwater.       eliminate use of lawn chemicals;            PCR, PFW, UMES
                                  implement BMPs; public outreach and
                                  education; implement Karst BMPs;
                                  implement the MDC 2013 Perry County karst
                                  management plan; Perryville ordinances.
Sinkhole erosion and             Purchase easements in Perryville; refine    CP, PCCEEC, PCFB
 destabilization.                 techniques for stabilizing sinkholes;
                                  sinkhole improvement plan policy for
                                  city; implement Karst BMPs; sinkhole
                                  improvement programs; implement the MDC
                                  2013 Perry County karst management plan;
                                  Perryville ordinances.
Erosion and chemicals from       NRCS vertical drain guidelines; implement   NRCS, PCCEEC, PCFB, PCR, PCS
 vertical drains.                 the MDC 2013 Perry County karst
                                  management plan.
Improper installation and        Provide new landowners with septic system   CP, PCCEEC, PCHD, PCFB
 maintenance of septic systems.   guidelines, monitor rural septic systems,
                                  enforce septic system regulations,
                                  outreach and education; implement Karst
                                  BMPs; implement the MDC 2013 Perry County
                                  karst management plan; Perryville
                                  ordinances.
Industrial, commercial, and      Develop and implement industrial,           CP, PCCEEC, PCFB, PCDA, PCEDA
 residential stormwater runoff.   commercial, and residential construction
                                  and maintenance guidelines for stormwater
                                  drains; implement karst BMPs; stormwater
                                  improvements; implement the MDC 2013
                                  Perry County karst management plan;
                                  Perryville ordinances.
Deposition of silt due to        Install and maintain vegetative buffers     MDC-PLD, NRCS, PCCEEC, PCFB, PCR,
 erosion from agricultural        around vertical drains; repair and          PCSW, PFW, UMES
 crops, overgrazing of            enhance erosion gullies; plant and
 livestock.                       maintain riparian corridors for surface
                                  streams; construct alternate water
                                  sources for livestock; outreach and
                                  education events; implement Karst BMPs;
                                  implement the MDC 2013 Perry County karst
                                  management plan.
Contamination and nitrification  Compost or remove dead animals; guidelines  PCCEEC, PCFB, PCR, UMES
 from livestock wastes.           to reduce animal concentrations at
                                  feeding stations.
Contamination from underground   Perryville and county ordinances and        CP, PCC, PCCEEC, PCDA, PCEDA
 storage tanks in Perryville.     guidelines; replace or repair leaking
                                  tanks.
Overall water quality            Implement karst BMPs; implement the MDC     CP, MDC-PLD; MODNR, NRCS, PCCEEC,
 degradation from silt,           2013 Perry County karst management plan;    PCDA, PCFB, PCHD, PPD, PCR, PCSW,
 persistent chemicals,            install vegetated buffers; technical        PFW
 application of toxic             assistance from Federal, State, local,
 herbicides and pesticides;       university extension service staff;
 improper disposal of drug        comply with pesticide and herbicide
 prescriptions or antibiotics,    labeling instructions; guidelines for
 fertilizers, overgrazing,        grazing, use of cover crops and strips;
 nitrification, contaminants in   cleanup of sinkholes, especially ones
 sinkholes from various sources.  containing debris; water testing;
                                  conservation covers; filter strips;
                                  install grade stabilization structures;
                                  terrace construction in agricultural
                                  fields; riparian buffers; alternative
                                  water sources for livestock; implement
                                  Conservation Reserve Program; nutrient
                                  and manure management; abandon well
                                  plugging program; sinkhole improvement
                                  programs; MODNR/PCSW Sensitive Areas
                                  Resource Concern Program; Perryville
                                  ordinances including Surface Water Runoff
                                  Policy; Perryville Police Department drug
                                  disposal program; investigate waste water
                                  complaints.
Address threats through public   Adult education classes; higher education   MDC-PLD; NRCS, PCCEEC, PCFB, PCHD,
 outreach and education.          classes; landowner workshops;               PCTC, PCS, PFW, UMES
                                  consultations and technical assistance to
                                  private land owners, developers; 4-H
                                  classes; local and regional newspapers;
                                  agricultural crop application training;
                                  water testing clinics; septic tank
                                  installers training; Stream Team
                                  Environmental Stewardship education and
                                  training; Missouri Ground Water Flow
                                  Program; Enviroscape Program; city and
                                  county recycling efforts; watershed
                                  location and education signage; East
                                  Perry County Fair; NRCS/MDC annual
                                  meetings; Perry County landowner
                                  meetings; implement the MDC 2013 Perry
                                  County karst management plan.
----------------------------------------------------------------------------------------------------------------
Legend:

[[Page 58935]]

 
CP = City of Perryville.
MDC-PLD = Missouri Department of Conservation-Private Lands Division.
MODNR = Missouri Department of Natural Resources.
NRCS = Natural Resources Conservation Service.
PCC = Perryville Chamber of Commerce.
PCCEEC = Perry County Community Economic and Environment Committee.
PCEDA = Perry County Economic Development Authority.
PCFB = Perry County Farm Bureau.
PCHD = Perry County Health Department.
PCDA = Perry County Development Authority.
PCTC = Perryville Career & Tech Center.
PCR = Perry County Residents.
PCS = Perry County Schools.
PCSW = Perry County Soil and Water District.
PFW = U.S. Fish and Wildlife Service's Partners for Fish and Wildlife Program.
PPD = Perryville Police Department.
UMES = University of Missouri Extension Service.

Benefits of Inclusion--Perry County Community Conservation Plan
    The principal benefit of designating critical habitat is that 
federally funded or authorized activities that adversely affect 
critical habitat must undergo consultation under section 7 of the Act. 
Consultations on Federal actions involving critical habitat ensure that 
habitat needed for the survival and recovery of a species is not 
destroyed or adversely modified, in addition to the jeopardy standard 
applied to all listed species.
Benefits of Exclusion--Perry County Community Conservation Plan
    Subsequent to the proposal to list and designate critical habitat 
for the grotto sculpin, a collaborative partnership was developed 
between multiple Federal, State, and private entities in the 
development of a conservation plan to address threats to the species. 
The Perry County Community Economic and Environment Committee (PCCEEC) 
was established to work closely with the University of Missouri Perry 
County Extension Service and the Service to develop the PCCCP. To date, 
at least 56 entities have joined the partnership in the development and 
implementation of the plan. Additionally, the Missouri Department of 
Conservation developed a Perry County karst management plan to further 
address threats to grotto sculpin habitat. Exclusion of critical 
habitat will further strengthen the partnership that has developed and 
foster implementation of conservation measures outlined for the species 
in management plans aimed to address threats to the grotto sculpin. In 
the case of grotto sculpin, we believe that the benefits derived from 
implementing actions outlined in the above-mentioned plans will exceed 
those that would be provided by the designation of critical habitat and 
will avoid added administrative costs to the Service, Federal agencies, 
and other entities. As a federally listed species, we anticipate there 
will be few projects on privately owned lands that will have a Federal 
nexus to trigger consultation under section 7. We believe that the 
plans outlined above: (1) Provide for sufficient habitat protection for 
recovery of the grotto sculpin, (2) provide for the conservation of the 
essential physical and biological features, (3) provide a reasonable 
expectation that the conservation management strategies will be 
implemented into the future, (4) provide conservation strategies that 
are likely to be effective, and (5) contain a monitoring program using 
an adaptive management approach to ensure that the conservation 
measures are effective and can be adapted in the future in response to 
new information.
    The benefits of excluding lands covered by the PCCCP from 
designated critical habitat include: Maintenance of effective working 
partnerships to promote the conservation of the grotto sculpin and its 
habitat; establishment of new partnerships; providing benefits from the 
conservation plan to the grotto sculpin and its habitat which exceed 
those that would be provided by the designation of critical habitat; 
and avoiding added administrative costs to the Service, Federal 
agencies, and applicants.
Benefits of Exclusion Outweigh the Benefits of Inclusion--Perry County 
Community Conservation Plan
    We believe that the benefits of excluding from critical habitat all 
of the areas we identified within the PCCCP and our proposed rule of 
September 27, 2012 (77 FR 59488), outweigh the benefits of including 
these areas; therefore, we are excluding these areas from this final 
critical habitat determination. Because a commitment by entities in 
Perry County to the PCCCP will ameliorate threats to the grotto 
sculpin, we conclude that the exclusion of critical habitat will not 
result in the extinction of this species.

Required Determinations

Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs (OIRA) in the Office of Management of Budget will 
review all significant rules. OIRA has determined that this rule is 
significant because it will raise novel legal or policy issues due to 
the exclusion of all critical habitat units proposed in the September 
27, 2012, proposed rule (77 FR 59488).
    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

[[Page 58936]]

analysis is required if the head of an 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 the grotto sculpin 
as proposed in our September 2012 proposed rule (77 FR 59488) 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 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 (e.g., 
administrative cost of considering adverse modification; costs 
associated with development and implementation of the Perry County 
Community Conservation Plan; and impacts to development, agriculture, 
grazing activities and transportation (Industrial Economics 
Incorporated 2013, p. 4-1)). 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 if critical habitat was designated. 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 grotto sculpin. Federal agencies also must 
consult with us if their activities may affect critical habitat if 
designated. 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 proposed critical habitat 
designation, we attempted to evaluate the potential economic effects on 
small business entities resulting from conservation actions related to 
the listing of the grotto sculpin and the proposed designation of 
critical habitat. Due to uncertainties associated with the Service's 
ability to quantify potential incremental conservation efforts 
resulting from the proposed designation of critical habitat, it was 
difficult to predict what projects would likely generate 
recommendations for additional conservation measures (Industrial 
Economics Incorporated 2013, p. 4-21). Nonetheless, the Service 
anticipated that the designation of critical habitat would not likely 
preclude development in Perry County. Consequently, any impacts 
associated with additional conservation efforts were not anticipated to 
have a substantial effect on the regional economy (Industrial Economics 
Incorporated 2013, p. 4-21). Therefore, no areas proposed for critical 
habitat designation would have been excluded based on economic impacts. 
The analysis is based on the estimated impacts associated with the 
rulemaking as described in the Executive Summary, chapters two through 
five, and Appendices A and B of the analysis and evaluates the 
potential for economic impacts related to: (1) Development, (2) 
agriculture and grazing, and (3) transportation.
    The only potential impacts on small entities associated with the 
proposed critical habitat rule of September 27, 2012, would be costs 
incurred by third-party participants related to the adverse 
modifications standard under section 7(a)(2) of the Act where a Federal 
nexus occurred. In some cases, the City of Perryville would incur some 
costs associated with section 7(a)(2) consultations, but this impact 
would represent less than 0.1 percent of the annual revenue for the 
City of Perryville (Industrial Economics Incorporated 2013, p. A-6). As 
many as 53 businesses engaged in residential, commercial, and 
industrial development could incur administrative costs associated with 
implementation of the Perry County Community Conservation Plan, and all 
of these entities have annual revenues at or below the relevant small 
business thresholds for their respective North American Industry 
Classification System Industries (Industrial Economics Incorporated 
2013, p. A-5). However, necessary third-party administrative costs 
would represent only between 0.01 and 0.03 percent of annual revenues 
(Industrial Economics Incorporated 2013, p. A-5). The only other 
potential third-party administrative cost was associated with 
transportation projects in the City of Perryville, but such costs would 
constitute less than 0.01 percent of the annual revenue for the city 
(Industrial Economics Incorporated 2013, p. A-6).
    In summary, we considered whether the proposed 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 
if proposed critical habitat was finalized. Therefore, we are 
certifying that the designation of critical habitat for the grotto 
sculpin would not have resulted in a significant economic impact on a 
substantial number of small entities, and a regulatory flexibility 
analysis is not required.

Energy Supply, Distribution, or Use--Executive Order 13211

    Executive Order 13211 (Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use) requires 
agencies to prepare Statements of Energy Effects when undertaking 
certain actions. OMB

[[Page 58937]]

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 an analysis involving critical habitat designation. 
Thus, based on information in the economic analysis, energy-related 
impacts associated with grotto sculpin conservation activities within 
proposed critical habitat was not anticipated (Industrial Economics 
Incorporated 2013, p. A-11). As such, the proposed designation of 
critical habitat was not expected to significantly affect energy 
supplies, distribution, or use. Therefore, this action is not a 
significant energy action, and no Statement of Energy Effects is 
required.

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

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we make the following findings:
    (1) This rule will not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute, or regulation 
that would impose an enforceable duty upon State, local, or tribal 
governments, or the private sector, and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or tribal governments'' with two 
exceptions. It excludes ``a condition of Federal assistance.'' It also 
excludes ``a duty arising from participation in a voluntary Federal 
program,'' unless the regulation ``relates to a then-existing Federal 
program under which $500,000,000 or more is provided annually to State, 
local, and tribal governments under entitlement authority,'' if the 
provision would ``increase the stringency of conditions of assistance'' 
or ``place caps upon, or otherwise decrease, the Federal Government's 
responsibility to provide funding,'' and the State, local, or tribal 
governments ``lack authority'' to adjust accordingly. At the time of 
enactment, these entitlement programs were: Medicaid; Aid to Families 
with Dependent Children work programs; Child Nutrition; Food Stamps; 
Social Services Block Grants; Vocational Rehabilitation State Grants; 
Foster Care, Adoption Assistance, and Independent Living; Family 
Support Welfare Services; and Child Support Enforcement. ``Federal 
private sector mandate'' includes a regulation that ``would impose an 
enforceable duty upon the private sector, except (i) a condition of 
Federal assistance or (ii) a duty arising from participation in a 
voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal Government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. While non-Federal entities that receive 
Federal funding, assistance, or permits, or that otherwise require 
approval or authorization from a Federal agency for an action, may be 
indirectly impacted by the designation of critical habitat, the legally 
binding duty to avoid destruction or adverse modification of critical 
habitat rests squarely on the Federal agency. Furthermore, to the 
extent that non-Federal entities are indirectly impacted because they 
receive Federal assistance or participate in a voluntary Federal aid 
program, the Unfunded Mandates Reform Act would not apply, nor would 
critical habitat shift the costs of the large entitlement programs 
listed above onto State governments.
    (2) We do not believe that this rule will significantly or uniquely 
affect small governments because it would not produce a Federal mandate 
of $100 million or greater in any year; that is, it is not a 
``significant regulatory action'' under the Unfunded Mandates Reform 
Act. The FEA concludes incremental impacts may occur due to 
administrative costs of section 7 consultations for development and 
transportation activities; however, these are not expected to 
significantly affect small governments. Incremental impacts stemming 
from various species conservation and development control activities 
are expected to be borne by the Federal Government, Missouri Department 
of Transportation, Perry County, Perry County Soil and Water 
Conservation District, and City of Perryville, which are not considered 
small governments. Consequently, we do not believe that the critical 
habitat designation would significantly or uniquely affect small 
government entities. As such, 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 the proposed 
designation of critical habitat for grotto sculpin in a takings 
implications assessment. As discussed above, the designation of 
critical habitat affects only Federal actions. Although private parties 
that receive Federal funding, assistance, or 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. The takings implications 
assessment concludes that the proposed designation of critical habitat 
for grotto sculpin would 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 rule 
does not have significant Federalism effects. A federalism impact 
summary 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 critical habitat designation 
with appropriate State resource agencies in Missouri. We received 
comments from the Missouri Department of Conservation and have 
addressed them in the Summary of Comments and Recommendations section 
of the rule. Had critical habitat been designated in areas currently 
occupied by the grotto sculpin, no additional restrictions to those 
currently in place would have been imposed other than administrative 
costs associated with implementation of actions outlined in the Perry 
County Community Conservation Plan and management recommendations 
provided in the Missouri Department of Conservation's Perry County 
karst management plan (Crites and Schubert 2013, pp. 16-20). Such costs 
are anticipated to be nominal and, therefore, would have little 
incremental impact on State and local governments and their activities. 
Critical habitat designation may have provided some benefit to these 
governments in that the areas that contain the physical or biological 
features essential to the conservation of the species would be more 
clearly defined, and the elements of the features of the habitat 
necessary to the conservation of the species would be specifically 
identified. This information does not alter where and what federally 
sponsored activities may have occurred had critical habitat been 
designated. However, it may have assisted local governments in long-
range

[[Page 58938]]

planning (rather than having them 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 would rest 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 
excluding 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 grotto sculpin. The areas 
of critical habitat in the September 27, 2012, proposed rule (77 FR 
59488) were presented on maps, and the rule provided 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 OMB 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 may not conduct or sponsor, and 
a person is not required to respond to, a collection of information 
unless it displays a currently valid OMB control number.

National Environmental Policy Act (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 or 
excluding 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 grotto sculpin 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 grotto sculpin 
that are essential for the conservation of the species. Therefore, we 
are not designating critical habitat for the grotto sculpin on tribal 
lands.

References Cited

    A complete list of all references cited is available on the 
Internet at https://www.regulations.gov and upon request from the 
Columbia, Missouri Ecological Services Field Office (see FOR FURTHER 
INFORMATION CONTACT).

Author(s)

    The primary authors of this rulemaking are the staff members of the 
Columbia, Missouri Ecological Services Field Office.

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

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

PART 17--[AMENDED]

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

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


0
2. In Sec.  17.95, amend paragraph (e) by adding an entry for ``Grotto 
Sculpin (Cottus specus)'' after the entry for ``Leon Springs Pupfish 
(Cyprindon bovinus)'', to read as follows:


Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *
    (e) Fishes.
* * * * *
    Grotto Sculpin (Cottus specus)
    Pursuant to section 4(b)(2) of the Act, we have excluded all areas 
determined to meet the definition of critical habitat under section 
3(5)(a) of the Act for the grotto sculpin. Therefore, no specific areas 
are designated as critical habitat for this species.
* * * * *

    Dated: September 17, 2013.
Michael J. Bean,
Acting Principal Deputy Assistant Secretary for Fish and Wildlife and 
Parks.
[FR Doc. 2013-23182 Filed 9-24-13; 8:45 am]
BILLING CODE 4310-55-P