Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Black Pinesnake, 12845-12874 [2015-05326]
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Vol. 80
Wednesday,
No. 47
March 11, 2015
Part II
Department of the Interior
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Fish and Wildlife Service
50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Designation of Critical
Habitat for Black Pinesnake; Proposed Rule
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Federal Register / Vol. 80, No. 47 / Wednesday, March 11, 2015 / Proposed Rules
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS–R4–ES–2014–0065;
4500030114]
RINs 1018–BA24; 1018–BA03
Endangered and Threatened Wildlife
and Plants; Designation of Critical
Habitat for Black Pinesnake
Fish and Wildlife Service,
Interior.
ACTION: Proposed rule; reopening of
comment period.
AGENCY:
We, the U.S. Fish and
Wildlife Service (Service), propose to
designate critical habitat for the black
pinesnake (Pituophis melanoleucus
lodingi) under the Endangered Species
Act (Act). In total, approximately
338,100 acres (136,824 hectares) in
Forrest, George, Greene, Harrison, Jones,
Marion, Perry, Stone, and Wayne
Counties, Mississippi, and in Clarke
County, Alabama, fall within the
boundaries of the proposed critical
habitat designation. We also announce
the availability of a draft economic
analysis (DEA) of the proposed critical
habitat designation. If we finalize this
rule as proposed, it would extend the
Act’s protections to this species’ critical
habitat. In addition, we announce the
reopening of the public comment period
on the October 7, 2014, proposed rule to
list the black pinesnake as a threatened
species under the Act. We are reopening
the comment period to allow all
interested parties an opportunity to
comment simultaneously on the
proposed listing rule as well as this
proposed critical habitat rule and its
associated DEA. Comments previously
submitted on the proposed listing rule
need not be resubmitted, as they will be
fully considered in preparation of that
final rule.
DATES: We will accept comments
received or postmarked on or before
May 11, 2015. Comments submitted
electronically using the Federal
eRulemaking Portal (see ADDRESSES,
below) must be received by 11:59 p.m.
Eastern Time on the closing date. We
must receive requests for public
hearings, in writing, at the address
shown in FOR FURTHER INFORMATION
CONTACT by April 27, 2015.
ADDRESSES: You may submit comments
by one of the following methods:
(1) Electronically: Go to the Federal
eRulemaking Portal: https://
www.regulations.gov. In the Search box,
enter Docket No. FWS–R4–ES–2014–
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SUMMARY:
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0065 for the proposed critical habitat
rule and its associated DEA or FWS–R4–
ES–2014–0046 for the proposed listing
rule. Then, in the Search panel on the
left side of the screen, under the
Document Type heading, click on the
Proposed Rules link to locate the correct
document. You may submit a comment
by clicking on ‘‘Comment Now!’’
(2) By hard copy: Submit by U.S. mail
or hand-delivery to: Public Comments
Processing, Attn: FWS–R4–ES–2014–
0065 [for the proposed critical habitat
rule and its associated DEA] or FWS–
R4–ES–2014–0046 [for the proposed
listing rule]; Division of Policy and
Directives Management; U.S. Fish and
Wildlife Service; 4401 N. Fairfax Drive,
MS 2042–PDM; Arlington, VA 22203.
We request that you send comments
only by the methods described above.
We will post all comments on https://
www.regulations.gov. This generally
means that we will post any personal
information you provide us (see the
Information Requested section, below,
for more information).
The coordinates or plot points or both
from which the maps are generated are
included in the administrative record
for the proposed critical habitat
designation and are available at https://
www.fws.gov/mississippiES/, at https://
www.regulations.gov at Docket No.
FWS–R4–ES–2014–0065, and at the
Mississippi Field Office (see FOR
FURTHER INFORMATION CONTACT). Any
additional tools or supporting
information that we may develop for
this critical habitat designation will also
be available at the Fish and Wildlife
Service Web site and Field Office listed
above, and may also be included in the
preamble and/or at https://
www.regulations.gov. The proposed
listing rule can be read, in its entirety,
at https://www.regulations.gov at Docket
No. FWS–R4–ES–2014–0046 or at the
Field Office listed above.
FOR FURTHER INFORMATION CONTACT:
Stephen Ricks, Field Supervisor, U.S.
Fish and Wildlife Service, Mississippi
Field Office, 6578 Dogwood View
Parkway, Jackson, MS 39213; telephone:
601–321–1122; facsimile: 601–965–
4340. If you use a telecommunications
device for the deaf (TDD), call the
Federal Information Relay Service
(FIRS) at 800–877–8339.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. Under
the Act, when we determine that a
species is endangered or threatened, we
must designate critical habitat to the
maximum extent prudent and
determinable. Designations of critical
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habitat can only be completed by
issuing a rule. On October 7, 2014, we
proposed to list the black pinesnake as
a threatened species under the Act (79
FR 60406).
This rule consists of a proposed rule
to designate critical habitat for the black
pinesnake, an announcement of the
availability of the associated draft
economic analysis (DEA), and an
announcement of the reopening of the
comment period for the proposed listing
rule for the black pinesnake.
The basis for our action. Under the
Act, if we determine that a species is
endangered or threatened, we must
designate critical habitat at to the
maximum extent prudent and
determinable. Section 4(b)(2) of the Act
states that the Secretary shall designate
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.
We prepared a draft economic
analysis of the proposed designation of
critical habitat. We are making available
for public comment the DEA of the
proposed designation of critical habitat
for the black pinesnake.
We will seek peer review. We are
seeking comments from independent
specialists to ensure that our critical
habitat proposal is based on
scientifically sound data and analyses.
We are inviting these peer reviewers to
comment on our specific assumptions
and conclusions in the critical habitat
proposal. Because we will consider all
comments and information we receive
during the comment period, our final
determination may differ from this
critical habitat proposal.
Information Requested
We intend that any final action
resulting from this proposed rule will be
based on the best scientific and
commercial data available and be as
accurate and as effective as possible.
Therefore, we request comments or
information from other concerned
government agencies, the scientific
community, industry, or any other
interested party concerning this
proposed rule. We particularly seek
comments concerning:
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(1) Additional information concerning
the historical and current status, range,
distribution, and population size of the
black pinesnake, including the locations
of any additional populations of this
subspecies.
(2) The black pinesnake’s biology,
range, and population trends, including:
(a) Biological or ecological
requirements of the subspecies,
including habitat requirements for
feeding, breeding, and sheltering;
(b) Genetics and taxonomy, including
interpretations of existing studies or
whether new information is available;
(c) Historical and current range,
including distribution patterns;
(d) Historical and current population
levels, and current and projected trends;
and
(e) Past and ongoing conservation
measures for the subspecies, its habitat,
or both.
(3) Factors that may affect the
continued existence of the subspecies,
which may include habitat modification
or destruction, overutilization,
collection for the pet trade, disease,
predation, the inadequacy of existing
regulatory mechanisms, or other natural
or manmade factors.
(4) Biological, commercial trade, or
other relevant data concerning any
threats (or lack thereof) to this
subspecies and existing regulations that
may be addressing those threats.
(5) Any information concerning the
appropriateness and scope of the
proposed section 4(d) rule provisions
for take of the black pinesnake (see the
proposed listing rule at 79 FR 60406,
October 7, 2014). We are particularly
interested in input regarding timber and
forest management and restoration
practices that would be appropriately
addressed through a section 4(d) rule,
including those that adjust the timing or
methods to minimize impacts to the
subspecies or its habitat.
(6) Any additional information on
current conservation activities or
partnerships benefitting the subspecies,
or opportunities for additional
partnerships or conservation activities
that could be undertaken in order to
address threats.
(7) Any information on specific
pesticides that could impact the black
pinesnake or its prey base either directly
or indirectly, which could cause further
mortality or decline of the subspecies.
(8) The reasons why we should or
should not designate habitat as ‘‘critical
habitat’’ under section 4 of the Act (16
U.S.C. 1531 et seq.), including whether
there are threats to the subspecies from
human activity, the degree of which can
be expected to increase due to the
designation, and whether that increase
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in threat outweighs the benefit of
designation such that the designation of
critical habitat may not be prudent.
(9) Specific information on:
(a) The amount and distribution of
black pinesnake habitat;
(b) What areas, that were occupied at
the time of listing (or are currently
occupied) and that contain features
essential to the conservation of the
subspecies, should be included in the
designation and why;
(c) Special management
considerations or protection that may be
needed in critical habitat areas we are
proposing, including managing for the
potential effects of climate change; and
(d) What areas not occupied at the
time of listing are essential for the
conservation of the subspecies and why.
(10) Land use designations and
current or planned activities in the
subject areas and their possible impacts
on proposed critical habitat.
(11) How the patch size of proposed
critical habitat was derived (i.e., how
much acreage a viable population of
black pinesnakes requires).
(12) Information on the projected and
reasonably likely impacts of climate
change on the black pinesnake and
proposed critical habitat.
(13) Any probable economic, national
security, or other relevant impacts of
designating any area that may be
included in the final designation; in
particular, we seek information on any
impacts on small entities or families,
and the benefits of including or
excluding areas that exhibit these
impacts.
(14) Information on the extent to
which the description of economic
impacts in the draft economic analysis
is a reasonable estimate of the likely
economic impacts and is complete and
accurate.
(15) The likelihood of adverse social
reactions to the designation of critical
habitat, as discussed in the associated
documents of the draft economic
analysis, and how the consequences of
such reactions, if likely to occur, would
relate to the conservation and regulatory
benefits of the proposed critical habitat
designation.
(16) Whether any specific areas we are
proposing for critical habitat
designation should be considered for
exclusion under section 4(b)(2) of the
Act, and whether the benefits of
potentially excluding any specific area
outweigh the benefits of including that
area under section 4(b)(2) of the Act.
(17) Whether we could improve or
modify our approach to designating
critical habitat in any way to provide for
greater public participation and
understanding, or to better
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accommodate public concerns and
comments.
If you submitted comments or
information on the proposed listing rule
(79 FR 60406) during the initial
comment period from October 7, 2014,
to December 8, 2014, please do not
resubmit them. We will incorporate
them into the public record and we will
fully consider them in the preparation
of that final determination.
You may submit your comments and
materials concerning this proposed rule
and/or the proposed listing rule by one
of the methods listed in ADDRESSES. We
request that you send comments only by
the methods described in the ADDRESSES
section.
We will post your entire comment—
including your personal identifying
information—on https://
www.regulations.gov. You may request
at the top of your document that we
withhold personal information such as
your street address, phone number, or
email address from public review;
however, we cannot guarantee that we
will be able to do so.
Comments and materials we receive,
as well as supporting documentation we
used in preparing this proposed rule,
will be available for public inspection
on https://www.regulations.gov, or by
appointment, during normal business
hours, at the U.S. Fish and Wildlife
Service, Mississippi Field Office (see
FOR FURTHER INFORMATION CONTACT).
Previous Federal Actions
All previous Federal actions are
described in the proposed rule to list the
black pinesnake as a threatened species
under the Act published in the Federal
Register on October 7, 2014 (79 FR
60406).
Critical Habitat
It is our intent to discuss below only
those topics directly relevant to the
designation of critical habitat for the
black pinesnake. For information related
to the listing of this subspecies, see the
proposed rule.
Background
Critical habitat is defined in section 3
of the Act as:
(1) The specific areas within the
geographical area occupied by the
species, at the time it is listed in
accordance with the Act, on which are
found those physical or biological
features
(a) Essential to the conservation of the
species, and
(b) Which may require special
management considerations or
protection; and
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(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 nonFederal landowners. Where a landowner
requests Federal agency funding or
authorization for an action that may
affect a listed species or critical habitat,
the consultation requirements of section
7(a)(2) of the Act would apply, but even
in the event of a destruction or adverse
modification finding, the obligation of
the Federal action agency and the
landowner is not to restore or recover
the species, but to implement
reasonable and prudent alternatives to
avoid destruction or adverse
modification of critical habitat.
Under the first prong of the Act’s
definition of critical habitat, areas
within the geographical area occupied
by the species at the time it was listed
are included in a critical habitat
designation if they contain physical or
biological features (PBFs) (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
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and commercial data available, those
PBFs that are essential to the
conservation of the species (such as
space, food, cover, and protected
habitat). In identifying those PBFs
within an area, we focus on the
principal biological or physical
constituent elements (primary
constituent elements, or PCEs, such as
roost sites, nesting grounds, seasonal
wetlands, water quality, tide, soil type)
that are essential to the conservation of
the species. PCEs are those specific
elements of PBFs that, when laid out in
the appropriate quantity and spatial
arrangement, provide for a species’ lifehistory processes and are essential to
the conservation of the species.
Under the second prong of the Act’s
definition of critical habitat, we can
designate critical habitat in areas
outside the geographical area occupied
by the species at the time it is listed,
upon a determination that such areas
are essential for the conservation of the
species. 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 data available.
Further, our Policy on Information
Standards under the Endangered
Species Act (published in the Federal
Register on July 1, 1994 (59 FR 34271)),
the Information Quality Act (section 515
of the Treasury and General
Government Appropriations Act for
Fiscal Year 2001 (Pub. L. 106–554; H.R.
5658)), and our associated Information
Quality Guidelines provide criteria,
establish procedures, and provide
guidance to ensure that our decisions
are based on the best scientific data
available. They require our biologists, to
the extent consistent with the Act and
with the use of the best scientific data
available, to use primary and original
sources of information as the basis for
recommendations to designate critical
habitat.
When we are determining which areas
should be designated as critical habitat,
our primary source of information is
generally the information developed
during the listing process for the
species. Additional information sources
may include the recovery plan for the
species, articles in peer-reviewed
journals, conservation plans developed
by States and counties, scientific status
surveys and studies, biological
assessments, other unpublished
materials, or experts’ opinions or
personal knowledge.
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Habitat is dynamic, and species may
move from one area to another over
time. We recognize that critical habitat
designated at a particular point in time
may not include all of the habitat areas
that we may later determine are
necessary for the recovery of the
species. For these reasons, a critical
habitat designation does not signal that
habitat outside the designated area is
unimportant or may not be needed for
recovery of the species. Areas that are
important to the conservation of the
species, both inside and outside the
critical habitat designation, will
continue to be subject to: (1)
Conservation actions implemented
under section 7(a)(1) of the Act, (2)
regulatory protections afforded by the
requirement in section 7(a)(2) of the Act
for Federal agencies to ensure their
actions are not likely to jeopardize the
continued existence of any endangered
or threatened species, and (3) 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 conservation of this
species. Similarly, critical habitat
designations made on the basis of the
best available information at the time of
designation will not control the
direction and substance of future
recovery plans, habitat conservation
plans (HCPs), or other species
conservation planning efforts if new
information available at the time of
these planning efforts calls for a
different outcome.
Prudency Determination
Section 4(a)(3) of the Act, as
amended, and implementing regulations
(50 CFR 424.12), require that, to the
maximum extent prudent and
determinable, the Secretary shall
designate critical habitat at the time the
species is determined to be an
endangered or threatened species. Our
regulations (50 CFR 424.12(a)(1)) state
that the designation of critical habitat is
not prudent when one or both of the
following situations exist:
(1) The species is threatened by taking
or other human activity, and
identification of critical habitat can be
expected to increase the degree of threat
to the species, or
(2) Such designation of critical habitat
would not be beneficial to the species.
There is currently no imminent threat
of take attributed to collection or
vandalism under Factor B for the black
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pinesnake (see the proposed listing rule
published on October 7, 2014 at 79 FR
60406), and identification and mapping
of critical habitat is not expected to
initiate any such threat. Therefore, in
the absence of finding that the
designation of critical habitat would
increase threats to a species, if there are
any benefits to a critical habitat
designation, a finding that designation
is prudent is warranted. Here, the
potential benefits of designation
include: (1) Triggering consultation
under section 7 of the Act, in new areas
for actions in which there may be a
Federal nexus where it would not
otherwise occur because, for example, it
is unoccupied; (2) focusing conservation
activities on the most essential features
and areas; (3) providing educational
benefits to State or county governments
or private entities; and (4) preventing
people from causing inadvertent harm
to the black pinesnake.
Because we have determined that the
designation of critical habitat will not
likely increase the degree of threat to the
subspecies and may provide some
measure of benefit, we determine that
designation of critical habitat is prudent
for the black pinesnake.
Critical Habitat Determinability
Having determined that designation is
prudent, under section 4(a)(3) of the Act
we must find whether critical habitat for
the black pinesnake is determinable.
Our regulations at 50 CFR 424.12(a)(2)
state that critical habitat is not
determinable when one or both of the
following situations exist:
(i) Information sufficient to perform
required analyses of the impacts of the
designation is lacking, or
(ii) The biological needs of the species
are not sufficiently well known to
permit identification of an area as
critical habitat.
At the time of our October 7, 2014,
proposed rule to list the subspecies, a
careful assessment of the economic
impacts was ongoing, leading us to find
that critical habitat was not
determinable. We have continued to
review the available information related
to the draft economic analysis as well as
newly acquired information necessary
to perform this assessment. This and
other information represent the best
scientific data available, and we now
believe the data are sufficient for us to
analyze the impacts of designation.
Accordingly, we conclude that the
designation of critical habitat is
determinable for the black pinesnake.
Physical or Biological Features
In accordance with section 3(5)(A)(i)
of the Act and regulations at 50 CFR
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424.12(b), 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 PBFs 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
historic geographical and ecological
distributions of a species.
We derive the specific PBFs essential
for the black pinesnake from studies of
the subspecies and other similar
species’ habitat, ecology, and life history
as described below. Additional
information can be found in the
proposed listing rule published in the
Federal Register on October 7, 2014 (79
FR 60406). We have determined that the
following PBFs are essential for the
black pinesnake:
Space for Individual and Population
Growth and for Normal Behavior
Telemetry studies and previous
records indicate that the black
pinesnake prefers an open canopy, a
reduced midstory, and a dense
herbaceous cover typical of a classic
longleaf pine forest (see the ‘‘Habitat’’
and ‘‘Life History’’ sections of our
proposed listing rule published in the
Federal Register on October 7, 2014 (79
FR 60406)). An abundant herbaceous
groundcover is typical of those areas
characterized by a more open-canopied
condition, as a by-product of the
increased amount of sunlight reaching
the forest floor. As an ectotherm (an
organism that regulates its body
temperature (i.e., thermoregulates)
primarily by exchanging heat with its
surroundings), the black pinesnake
requires this open condition to provide
thermoregulatory opportunities, and
possibly to provide proper incubation
temperatures for nests.
Studies of black pinesnakes have
supported this subspecies’ preference
for a relatively open canopy and
reduced mid-story shrub cover (Duran
1998b, pp. 4–8; Baxley et al. 2011, p.
154). Values for these landscape features
reflecting habitat structure have been
estimated for the black pinesnake by
looking to habitat conditions described
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for the threatened gopher tortoise
(Gopherus polyphemus), a species
sharing the same habitat within the
same geographic range in the longleaf
pine ecosystem. Management plans for
the tortoise include upland longleaf
pine forest desired conditions of ≤70
percent canopy cover, a shrub cover of
<10 percent, and a herbaceous
groundcover of at least 40 to 50 percent
(Florida Fish and Wildlife Conservation
Commission (FWCC) 2012, p. 42; U.S.
Forest Service 2014, p. 14; Service 2014,
p. 1). These same metrics are all
indicative of the forest structure in
suitable black pinesnake habitat as well.
Longleaf pine ecosystems have
historically been maintained with fire,
as it is necessary for exposing bare
mineral soil for seed germination,
increasing nutrient content in forage
species, and reducing competition of
hardwood species (DeBerry and Pashley
2008, pp. 20–21). Prescribed burning
during the growing season (late spring
to early summer) is more effective at
controlling mid-story hardwood
vegetation, thereby promoting a more
abundant herbaceous groundcover;
however, some understory plants
respond positively to fires in the
dormant season as well (Knapp et al.
2009, p. 2). Therefore, fire regimes
should optimally incorporate variability
in their seasonality and intensity, as a
heterogeneous fire regime is likely to
maximize plant biodiversity (Knapp et
al. 2009, p. 3). Management of upland
longleaf pine forests should include a
fire return interval of 1 to 3 years
(FWCC 2012, p. 42; U.S. Forest Service
2014, p. 14), with variable seasonality
and intensity in the fire regime to
promote the open-canopied condition
and abundant, diverse forage species
that sustain the prey base (small
mammals) for black pinesnakes.
A broad distribution of home ranges
have been estimated from various
telemetry studies, from a mean
Minimum Convex Polygon (MCP) (a
mathematical tool for determining home
range boundaries by connecting the
outer location points) value of 106 acres
(ac) (43 hectares (ha)) for adult female
pinesnakes (Duran 1998a, p. 19) to a
mean MCP value of 551 ac (223 ha) for
adult male pinesnakes (Baxley and
Qualls 2009, p. 287). The maximum
home range reported for a black
pinesnake in the literature is 979 ac (396
ha) for an adult male, and the maximum
distance between consecutive locations
in a telemetry study (reported as a
straight-line distance) was 1.3 miles (2.1
kilometers) (Baxley and Qualls 2009,
pp. 287–288). Examination of MCP areas
for black pinesnakes occupying the
same general area shows very little
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overlap of home ranges, providing some
evidence for territoriality (Duran 1998a,
p. 15). The minimum amount of habitat
necessary to support a viable black
pinesnake population (known as reserve
area requirements) has not previously
been determined, and estimating those
parameters can be quite challenging,
primarily based on the elusive nature of
the subspecies (Wilson et al. 2011, pp.
42–43). We estimated a minimum black
pinesnake reserve size by calculating
the total area covered by two partially
overlapping activity areas created from
location points buffered with a radius
equaling the maximum known
movement distance for the subspecies
(see discussion under Criteria Used To
Identify Critical Habitat). The resulting
area of 5,000 ac (2,023 ha) is considered
to be a minimum population reserve
size for the black pinesnake, as long as
the area is not highly fragmented (see
discussion under Criteria Used to
Identify Critical Habitat). Fragmentation
by roads, urbanization, or incompatible
habitat conversion continues to be a
major threat affecting the subspecies
(see Factor E. Other Natural or
Manmade Factors Affecting Its
Continued Existence in our proposed
listing rule published in the Federal
Register on October 7, 2014 (79 FR
60406)).
For comparison purposes we
investigated the population
requirements of another large-bodied,
wide-ranging snake with large home
ranges that is also a longleaf pine
ecosystem specialist, the threatened
eastern indigo snake (Drymarchon
couperi; listed as Drymarchon corais
couperi). Moler (1992, p. 185)
recommended that large tracts of land
(≥2,500 ac (1,012 ha)) should be
protected in order to have a high
probability of sustaining populations of
eastern indigo snakes long term. A
modeling study by Sytsma et al. (2012,
pp. 39–40) estimated a reserve size of
10,000 ac (4,047 ha) to be sufficiently
large to support a small population of
eastern indigo snakes. Although the
eastern indigo snake’s home ranges are
larger than the black pinesnake’s, these
studies do support the need for large
areas to support large, wide-ranging
snake species sensitive to landscape
fragmentation. Thus, based on these
estimates of eastern indigo snake reserve
size, the available long distance
movement data for the black pinesnake,
and data that describe non-overlapping
large home range sizes, we believe that
5,000 ac (2,023 ha) of suitable habitat is
an appropriate estimate of the minimum
reserve size for a population of black
pinesnakes.
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Therefore, based on the information
above, we identify open-canopied pine
forest habitat (≤70 percent canopy
coverage), historically dominated by
longleaf pine and maintained by
frequent fires, a reduced midstory (<10
percent), and a diverse and abundant
native herbaceous groundcover (>40
percent) to be the physical and
biological features necessary for the
conservation of the black pinesnake.
These pine forests should be primarily
unfragmented and occupy at least 5,000
ac (2,023 ha) in area.
Food, Water, Air, Light, Minerals, or
Other Nutritional or Physiological
Requirements
Black pinesnakes are known to
consume a variety of food, including
nestling rabbits (Sylvilagus aquaticus),
bobwhite quail (Colinus virginianus)
and their eggs, and eastern kingbirds
(Tyrannus tyrannus) (Vandeventer and
Young 1989, p. 34; Yager et al. 2005, p.
28); however, rodents represent the
most common type of prey. The
majority of documented prey items are
hispid cotton rats (Sigmodon hispidus),
various mice species (Peromyscus spp.),
and to a lesser extent eastern fox
squirrels (Sciurus niger) (Rudolph et al.
2002, p. 59; Yager et al. 2005, p. 28).
Through concurrent studies involving
both snake radio-telemetry and small
mammal trapping, it has been
documented that the hispid cotton rat
was the most frequently trapped small
mammal within black pinesnake home
ranges (Duran 1998a, p. 34), and that the
core home ranges of telemetered black
pinesnakes had higher mammal
abundance (especially hispid cotton
rats) compared with areas on the
periphery of the snakes’ home ranges
(Baxley and Qualls 2009, p. 291).
To provide the refugia and food
needed to support the rodent prey base
of black pinesnakes, the habitat must
have an abundant herbaceous
groundcover. Bluestem grasses
(Andropogon and Schizachyrium sp.)
typically represent the dominant
groundcover species of the opencanopied longleaf pine habitat within
the geographic range of the black
pinesnake, and bluestem grass stems are
a primary food of the hispid cotton rat
(Miller and Miller 2005, p. 202).
Research on black pinesnakes has
shown they more frequently occupy
forested habitats with significantly
higher cover of herbaceous understory
vegetation and avoid areas with
significantly higher percentages of leaf
litter (Duran 1998a, p. 11; Baxley et al.
2011, p. 161; Smith 2011, pp. 86 and
100). Therefore, we identify as a
physical and biological feature an
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abundant, diverse, native groundcover,
as described above under Space for
Individual and Population Growth and
for Normal Behavior.
Cover or Shelter
From radio-telemetry studies, it has
been shown that black pinesnakes
spend a majority of their time below
ground (Duran 1998a, p. 12; Yager et al.
2005, p. 27; Baxley and Qualls 2009, p.
288). The subterranean environments
most commonly utilized by black
pinesnakes are burned-out or rotted-out
stump holes (Duran 1998a, p. 12; Yager
et al. 2005, p. 27; Baxley and Qualls
2009, p. 288). Where pine stumps have
become limited, black pinesnakes may
utilize gopher tortoise and nine-banded
armadillo (Dasypus novemcinctus)
burrows more frequently; however, the
large diameters of these burrows might
allow access to a wide array of potential
predators (Rudolph et al. 2007, p. 563).
Rudolph et al. (2007, pp. 560–565)
excavated five black pinesnake winter
refugia (overwintering sites) utilized for
significant periods of time from late fall
through early spring. They were found
to be located exclusively in chambers
formed by the decay and burning of
longleaf pine stumps and root tunnels,
at depths of 3.5 to 14 inches (in) (9 to
35 centimeters (cm)) below the surface
(Rudolph et al. 2007, pp. 560–561).
There is also evidence for site fidelity
towards specific winter refugia sites in
the genus Pituophis, specifically for
northern pinesnakes. Burger et al. (2012,
p. 600) documented hibernacula use by
northern pinesnakes over a 26-year
period in New Jersey, and they
determined that even when known
hibernacula do not get used for a year,
those hibernacula have a 37 percent
chance of being used the following year.
Data on black pinesnake habitat use
document site fidelity in this subspecies
as well. During research studies, black
pinesnakes have been shown to return
to the same general location during
monitoring and to even return to the
same stump hole (Yager et al. 2006, pp.
34–36; Baxley and Qualls 2009, p. 288).
These data on microhabitat use
reinforce the importance of locating and
protecting known refugia, regardless of
the seasonality of their use.
In addition to requiring the presence
of stump holes, it is imperative that this
microhabitat be in areas where the black
pinesnakes’ subterranean refugia will
remain above the seasonal water table,
as flooding may increase the potential
for harm to the snakes. An examination
of elevation thresholds in the black
pinesnake locality data indicates that
the subspecies occurs most frequently
along upland ridges. We determined
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that 90 percent (329) of all black
pinesnake locations (post-1980)
occurred in areas ≥200 feet (ft) (61
meters (m)) elevation, and 96 percent of
these locations (349) were in areas ≥150
ft (46 m).
Therefore, based on the information
above, we identify the presence of
naturally burned-out or rotted-out pine
stumps and their associated root
systems in upland areas at an elevation
≥150 ft (46 m), within historically
longleaf-dominated pine forests, to be a
physical and biological feature needed
for the conservation of this subspecies.
Sites for Breeding, Reproduction, or
Rearing (or Development) of Offspring
Very little information on breeding
and egg-laying of wild black pinesnakes
is available. Lyman et al. (2007, pp. 40–
42) documented mating activities at the
entrance to armadillo burrows, and Lee
(2007, p. 93) described mating in a pair
of black pinesnakes above ground, but
in the vicinity of a rotted-out pine root
system that the pair subsequently
occupied. The only documented natural
nest for the subspecies is a clutch of 6
recently hatched black pinesnake eggs
found 29 in (74 cm) below the soil
surface at the end of a juvenile gopher
tortoise burrow (burrow width: 2.5 in (6
cm)) in Perry County, Mississippi (Lee
et al. 2011, p. 301). The microhabitat
within the tortoise burrow likely
provides a suitable microclimate for egg
incubation in warm climate areas (Lee et
al. 2011, p. 301). Female northern
pinesnakes are known to excavate
tunnels and nest chambers for egg
deposition (Burger and Zappalorti 1992,
p. 331), but it is unknown whether
female black pinesnakes excavate their
own nests or only utilize and modify
existing tunnels.
Since there is only one documented
natural black pinesnake nest, it is
unknown whether the subspecies
exhibits nest site fidelity; however, nest
site fidelity has been described for other
Pituophis species and subspecies.
Burger and Zappalorti (1992, pp. 333–
335) conducted an 11-year study of nest
site fidelity of northern pinesnakes in
New Jersey and documented the exact
same nest site being used for 11 years
in a row, evidence of old egg shells in
73 percent of new nests, and recapture
of 42 percent of female snakes at prior
nesting sites.
In addition to the stump holes and
associated root systems commonly used
by adult black pinesnakes (Duran 1998a,
p. 12; Yager et al. 2005, p. 27; Baxley
and Qualls 2009, p. 288), radiotelemetry data have shown that yearling
and young juvenile black pinesnakes
frequently use small mammal burrows,
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specifically eastern mole (Scalopus
aquaticus) tunnels, as retreat sites
(Lyman et al. 2007, pp. 39–41). Because
of this documented utilization and
modification of existing burrow and
tunnel systems, it is necessary for black
pinesnakes to have access to areas with
sandy soils for ease of excavation.
Appropriate soils have been described
for the gopher tortoise, and are
recognized as one of their key habitat
requirements, as they allow for burrow
excavation and nest development (Ernst
et al. 1994, p. 466). Gopher tortoises
typically occur where soils have high
sand content, low clay content, and
little to no stones or gravel; the soils are
often well-drained and are deep to a
water table (Service 2012, p. 3). When
sufficient sunlight reaches the forest
floor, sandy soils also promote
herbaceous ground cover (component of
PCE 1) as food for rodents (primary prey
of the black pinesnake), and provide the
appropriate environment for egg
incubation and hatching (Service 2012,
p. 3). Because black pinesnakes share a
requirement for sandy soils with the
gopher tortoise, and the two occur
within the same habitat, characteristics
of suitable gopher tortoise soils can also
be used to describe appropriate black
pinesnake soils. These soil
characteristics include: (1) No flooding
or ponding; (2) <15 percent medium and
coarse gravel fragments; (3) >60 in (152
cm) depth to seasonal high water table
(elevation to which the ground or
surface water can be expected to rise
due to a normal or wet season); (4) >60
in (152 cm) depth to the hardpan (dense
layer of soil impervious to plant roots
and water); (5) textural components
equaling >30 percent sand and <35
percent clay; and (6) a slope <15 percent
(Service 2012, p. 6). The association of
black pinesnakes utilizing these soil
types is corroborated in telemetry work
by Duran (1998b, p. 15), which showed
that snakes in his study spent most of
their time on well-drained soils
determined to be appropriate for gopher
tortoises.
Therefore, based on the information
above, we identify sandy, well-drained
soils characteristic of historically
longleaf-dominated upland pine forest
to be a physical and biological feature
for this subspecies. These specific soil
series and related soil associations have
the following characteristics: No
flooding or ponding; < 15 percent
medium and coarse gravel fragments;
>60 in (152 cm) depth to seasonal high
water table; >60 in (152 cm) depth to the
hardpan; textural components equaling
>30 percent sand and <35 percent clay;
and a slope <15 percent.
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Primary Constituent Elements for the
Black Pinesnake
According to 50 CFR 424.12(b), we are
required to identify the PBFs essential
to the conservation of the black
pinesnake in areas occupied at the time
of listing, focusing on the features’
primary constituent elements (PCEs).
We consider PCEs to be those specific
elements of PBFs that provide for a
species’ life-history processes and are
essential to the conservation of the
species.
(1) Primary Constituent Element 1:
Tract size and habitat structure. A
longleaf pine-dominated forest
maintained by frequent fire, and
primarily having the following
characteristics:
(a) Open canopy (≤70 percent);
(b) Reduced woody mid-story (<10
percent cover);
(c) Abundant, diverse, native
groundcover (at least 40 percent cover);
and
(d) Minimum of 5,000 ac (2,023 ha) of
mostly unfragmented habitat.
(2) Primary Constituent Element 2:
Refugia sites and topographic features.
Naturally burned-out or rotted-out pine
stumps and their associated root
systems, in longleaf pine forests on
ridges with elevation of 150 ft (46 m) or
greater.
(3) Primary Constituent Element 3:
Soils. Deep, sandy, well-drained soils of
longleaf pine forest, characterized by:
(a) No flooding or ponding;
(b) <15 percent medium and coarse
gravel fragments;
(c) >60 in (152 cm) depth to seasonal
high water table;
(d) >60 in (152 cm) depth to the
hardpan;
(e) Textural components equaling
>30 percent sand and <35 percent clay;
and
(f) A slope <15 percent.
Special Management Considerations or
Protection
When designating critical habitat, we
assess whether the specific areas within
the geographical area occupied by the
species at the time of listing contain
features which are essential to the
conservation of the species and which
may require special management
considerations or protection.
All areas proposed as critical habitat
would require some level of
management to address the current and
future threats to the black pinesnake
and to maintain the PCEs. Special
management of the upland longleaf pine
forest would be needed to ensure an
open canopy, reduced mid-story, and
abundant herbaceous ground cover (PCE
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1); underground refugia for snakes to
occupy (PCE 2); and relatively
unfragmented tracts of pine forests (PCE
1).
A detailed discussion of activities
affecting the black pinesnake and its
habitat can be found in the proposed
listing rule published in the Federal
Register on October 7, 2014 (79 FR
60406). The features essential to the
conservation of this subspecies may
require special management
considerations or protection to reduce
threats posed by: Land use conversion,
primarily urban development and
conversion to agriculture and pine
plantations; timber management
practices, including clear-cutting, stump
removal, or other ground-disturbing
activities; fire suppression and low fire
frequencies; random effects of drought
or floods; encroachment of invasive
species; fragmentation from new roads
or development; road mortality; and
creation of utility pipelines and
powerlines.
Management activities that could
ameliorate these threats include (but are
not limited to): Maintaining critical
habitat areas as open pine habitat
(preferably longleaf pine); conducting
forestry management using frequent
prescribed burning (1 to 3 years) with
seasonal variability, avoiding intensive
site preparation that would disturb or
destroy pine stumps, avoiding the
practice of bedding when planting trees,
and reducing planting densities to
create or maintain an open canopied
forest with abundant herbaceous ground
cover; maintaining forest underground
structure such as gopher tortoise
burrows, small mammal burrows, and
stump holes; and retaining large tracts
of pine forest unfragmented by
protecting sites from development and
new road construction. More
information on the special management
considerations for each critical habitat
unit is provided in the individual unit
descriptions below.
Criteria Used To Identify Critical
Habitat
As required by section 4(b)(2) of the
Act, we use the best scientific data
available to designate critical habitat. In
accordance with the Act and our
implementing regulations at 50 CFR
424.12(b) we review available
information pertaining to the habitat
requirements of the species and identify
occupied areas at the time of listing that
contain the features essential to the
conservation of the species. If after
identifying currently occupied areas, a
determination is made that those areas
are inadequate to ensure conservation of
the species, in accordance with the Act
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and our implementing regulations at 50
CFR 424.12(e) we then consider whether
designating additional areas—outside
those currently occupied—are essential
for the conservation of the species. Here,
as discussed below, we are not currently
proposing to designate any areas outside
the geographical area occupied by the
black pinesnake because we have
determined that occupied areas are
sufficient for the conservation of the
subspecies.
We began our determination of which
areas to designate as critical habitat for
the black pinesnake with an assessment
of the critical life-history components of
the subspecies, as they relate to habitat.
We reviewed the available information
pertaining to historical and current
distributions, life histories, and habitat
requirements of this subspecies. We
focused on the identification of large
tracts of remaining unfragmented open
pine habitat in our analysis because
they are requisite sites for population
survival and conservation and their
disappearance in the environment is
one of the primary reasons that the
black pinesnake is declining. Our
sources included surveys, unpublished
reports, and peer-reviewed scientific
literature prepared by the Alabama
Department of Conservation and Natural
Resources; Alabama Natural Heritage
Program; Mississippi Department of
Wildlife, Fisheries, and Parks Natural
Heritage Program; and black pinesnake
researchers. Other sources are Service
data and Geographic Information
System (GIS) data (such as species
occurrence data, elevation contours,
soils, transportation, urban areas,
National Wetland Inventory, 2011
National Land Cover Database, aerial
imagery, ownership maps, and U.S.
Geological Survey (USGS) Terrestrial
Ecosystems data).
For estimation of activity ranges of
black pinesnakes, we utilized the
process of establishing species
occurrence areas (SOAs), which the
New Jersey Department of
Environmental Protection (NJDEP) uses
for northern pinesnakes. These areas are
derived by placing circular buffers
around documented locations, in order
to approximate typical activity ranges
(NJDFW 2009, p. 17). There are
unproven assumptions that underlie
this method, such as that pinesnakes
have circular activity ranges, and that
the occurrence location represents the
center of that individual’s range;
however, given the lack of
representative telemetry data for many
areas, this is a suitable approach to
estimate activity ranges. We placed
circular buffers around recent black
pinesnake location points (post-1990)
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from the sources listed above, with a
radius equaling the maximum known
movement distance (1.3 miles (2.1 km))
to approximate the SOA of each snake
(3,400 ac (1,376 ha)). The 1990 date was
used as it coincides with dates chosen
by black pinesnake researchers who
conducted habitat assessments at what
were considered recently and
historically occupied locations (Duran
and Givens 2001, pp. 5–9). By utilizing
GIS, we looked for areas of overlap
between activity ranges, and calculated
that the total area covered by two
partially overlapping SOA estimates
(5,000 ac (2,023 ha)) would be
considered a minimum population
reserve size, as long as the area was not
highly fragmented. This is not to say
that two snakes are considered a viable
population, but that this area estimate
should be considered a minimum value.
To examine the possibility of an
elevation threshold from the locality
data, recent black pinesnake records
were obtained from the sources listed
above. By overlapping these locality
data with GIS elevation contour data,
we determined that 90 percent (329) of
all black pinesnake locations occurred
in areas ≥200 ft (61 m) elevation, and 96
percent of these locations (349) were in
areas ≥150 ft (46 m) elevation.
Soils determined to be suitable habitat
for the gopher tortoise were used as a
surrogate to determine suitable soils for
the black pinesnake, as these both
occupy deep, sandy soils of upland
longleaf pine forest. A team of biologists
and soil scientists from the Service and
the Natural Resources Conservation
Service, with input from staff from the
U.S. Forest Service, developed a model
to classify soils throughout the gopher
tortoise’s federally listed range (Service
2012, pp. 1–37). These specific soil
characteristics are detailed in the
Primary Constituent Elements for the
Black Pinesnake section, above.
Using GIS, we located all areas where
at least two black pinesnake activity
ranges overlapped, and identified those
as potential populations. Areas within
and directly adjacent to these black
pinesnake activity ranges that met the
soils and elevation criteria were
considered contiguous habitat and were
included in potential population
boundaries. There were 11 populations
identified using this method: 6 in
Mississippi and 5 in Alabama. These
populations were then assessed in
regards to impacts from nearby
fragmentation sources such as major
roads, wetlands and open water,
incompatible land use (such as
agricultural conversion), and urban
development.
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To analyze potential impacts from
roads, a transportation layer was used
with GIS, specifically examining Class 1
and 2 roads. Class 1 roads are hard
surface highways including Interstate
and U.S. numbered highways, primary
State routes, and all controlled access
highways; Class 2 roads include
secondary State routes, primary county
routes, and other highways that connect
principal cities and towns. Both of these
road classifications have a high
probability of causing permanent black
pinesnake population fragmentation and
were excluded. Population boundaries
were buffered at least 100 meters from
all Class 1 and 2 roads. Major wetland
areas and streams were avoided in
determining population boundaries,
although these generally were consistent
with changes in elevation. To analyze
the fragmentation effects from
incompatible land uses (including but
not limited to urbanization), recent
aerial imagery and the 2011 National
Land Cover Database (NLCD) were
utilized. By selecting the evergreen
forest layers from NLCD, it was possible
to delineate large tracts of remaining
pine forested habitat, and concurrent
analysis from the aerial imagery further
removed areas with agricultural fields,
housing developments, and urban areas.
Once all the above analyses were
complete, the level of fragmentation in
each population was assessed. If
fragmentation within a population
boundary limited the suitable habitat to
the point where less than 5,000 ac
(2,023 ha) was available, that population
was no longer considered viable and
was removed from critical habitat
consideration.
Using the above-described process,
eight of the 11 populations examined
met the criteria for consideration as
critical habitat: All six of the
populations in Mississippi and two of
the five in Alabama. Five of the six
Mississippi populations occur at least
partially on the De Soto National Forest,
the largest of which is located almost
exclusively on the Camp Shelby Special
Use Permit area, and the sixth
population occurs primarily on the
Marion County Wildlife Management
Area (WMA). All six populations meet
the criteria of appropriate size;
contiguous, pine-dominated, forested
habitat; elevation; soils; and minimal
fragmentation. The Service has
determined that these sites contain the
PCEs that are essential for the
conservation of the black pinesnake,
and therefore we are proposing to
designate them as critical habitat.
Both of the Alabama populations that
met the criteria to be considered critical
habitat are located in Clarke County and
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Areas Occupied at the Time of Listing
The proposed critical habitat
designation does not include all forested
areas known to have been occupied by
the subspecies historically; instead, it
focuses on occupied areas within the
current range that have retained the
necessary PCEs that will allow for the
maintenance and expansion of existing
populations.
In summary, for areas within the
geographic area occupied by the
subspecies at the time of listing, we
delineated critical habitat unit
boundaries using the following
criterion: Evaluate habitat suitability of
forested parcels within the geographic
area occupied at the time of listing (post
1990), and retain those segments that
contain some or all of the PCEs to
support life-history functions essential
for conservation of the subspecies.
When determining proposed critical
habitat boundaries, we made every
effort to avoid including developed
areas such as lands covered by
buildings, pavement, and other
structures because such lands lack
physical or biological features necessary
for the black pinesnake. The scale of the
maps we prepared under the parameters
for publication within the Code of
Federal Regulations may not reflect the
exclusion of such developed lands nor
all lands covered under the Camp
Shelby integrated natural resources
management plan (INRMP), which are
exempted from proposed critical habitat
designation (see Application of Section
4(a)(3) of the Act under Exemptions,
below). Thus, any such lands
inadvertently left inside critical habitat
boundaries shown on the maps of this
proposed rule have been excluded by
text in the proposed rule and are not
proposed for designation as critical
habitat. Therefore, if the critical habitat
is finalized as proposed, a Federal
action involving these lands would not
trigger section 7 consultation with
respect to critical habitat and the
requirement of no adverse modification
unless the specific action would affect
the PBFs in the adjacent critical habitat.
The proposed critical habitat
designation is defined by the map or
maps, as modified by any accompanying
regulatory text, presented at the end of
this document in the Proposed
Regulation Promulgation section. We
include more detailed information on
the boundaries of the critical habitat
designation in the preamble of this
document. We will make the
coordinates or plot points or both on
which each map is based available to
the public on https://
www.regulations.gov at Docket No.
FWS–R4–ES–2014–0065, on our
Internet site at https://www.fws.gov/
mississippiES/, and at the field office
responsible for the designation (see FOR
FURTHER INFORMATION CONTACT, above).
Areas Not Occupied at the Time of
Listing
We are not proposing any areas
outside the geographical areas occupied
by the black pinesnake at the time of
listing for critical habitat designation.
The proposed units within the area
occupied by the subspecies at the time
of listing are representative of the
current geographical range and include
both the core population areas of black
pinesnakes, as well as remaining
peripheral population areas. We
determined that there was sufficient
area for the conservation of the
subspecies within the occupied areas
determined above.
Proposed Critical Habitat Designation
We are proposing to designate
approximately 338,100 ac (136,824 ha)
in eight units, one of which is divided
into two subunits, as critical habitat for
the black pinesnake. The critical habitat
areas we describe below constitute our
current best assessment of areas that
meet the definition of critical habitat for
the black pinesnake. The areas we
propose as critical habitat are all
occupied at the time of listing and
contain all elements of the physical or
biological features of the black
pinesnake to support life-history
functions essential to the conservation
of the subspecies including:
include a population primarily located
on the Scotch WMA and a population
located at the Fred T. Stimpson WMA.
Three other populations, in Washington
and Mobile Counties, each have two
black pinesnake records from the last 25
years, but due to fragmentation do not
meet the criteria for critical habitat and
therefore are not proposed for
designation.
We have determined that the areas we
are proposing for designation as critical
habitat contain the PCEs that are
essential for the conservation of the
black pinesnake based on our current
understanding of the subspecies’
requirements. However, as discussed in
the Critical Habitat section above, we
recognize that designation of critical
habitat might not include all habitat
areas that we may eventually determine
are necessary for the recovery of the
subspecies and that for this reason, a
critical habitat designation does not
signal that habitat outside the
designated area is unimportant or may
not promote the recovery of the
subspecies.
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Unfragmented tracts of pine forest of
sufficient size and structure (PCE 1);
suitable underground refugia sites at
appropriate elevation (PCE 2); and deep,
sandy soils (PCE 3).
The areas we propose as critical
habitat are: Unit 1—Ovett; Unit 2—
Piney Woods Creek; Unit 3—Cypress
Creek; Unit 4A—Maxie; Unit 4B—
Maxie; Unit 5—Howison; Unit 6—
Marion County WMA; Unit 7—Scotch
WMA; and Unit 8—Fred T. Stimpson
WMA.
Table 1 provides the location,
approximate area, and ownership of
each critical habitat unit.
TABLE 1—PROPOSED CRITICAL HABITAT UNITS FOR BLACK PINESNAKE
[Area estimates reflect all land within critical habitat unit boundaries]
Ownership
Unit
County
Total area
Federal
State
Local
Private
MISSISSIPPI
1—Ovett ...................................
Jones, Wayne
2—Piney Woods Creek ............
Perry, Wayne
3—Cypress Creek ....................
Perry, Greene,
George, Forrest.
Forrest, Stone
4A—Maxie ................................
4B—Maxie ................................
40,637 ac
(16,445 ha).
17,744 ac
(7,181 ha).
131,045 ac
(53,032 ha).
5—Howison ..............................
Forrest, Perry,
Stone.
Stone, Harrison
6—Marion County WMA ..........
Marion ............
.........................
.........................
.........................
1,768 ac (715
ha).
8,883 ac
(3,595 ha).
28,233 ac
(11,425 ha).
9,371 ac
(3,792 ha).
.........................
.........................
41 ac (16 ha) ..
.........................
.........................
.........................
.........................
.........................
640 ac (259
ha).
.........................
5,587 ac
(2,261 ha).
6,540 ac
(2,647 ha).
4,645 ac
(1,880 ha).
12,289 ac
(4,973 ha).
47,177 ac (19,092
ha).
22,389 ac (9,061 ha).
145,143 ac (58,737
ha).
6,334 ac
(2,563 ha).
16,078 ac
(6,507 ha).
2,938 ac
(1,189 ha).
6,270 ac
(2,537 ha).
15,217 ac (6,158 ha).
44,311 ac (17,932
ha).
12,949 ac (5,240 ha).
11,857 ac (4,798 ha).
ALABAMA
7—Scotch WMA .......................
Clarke .............
.........................
.........................
.........................
33,395 ac
(13,514 ha).
33,395 ac (13,514
ha).
8—Fred T. Stimpson WMA ......
Clarke .............
.........................
2,547 ac
(1,031 ha).
.........................
3,114 ac
(1,260 ha).
5,661 ac (2,291 ha).
Total Area .........................
.........................
235,915 ac
(95,471 ha).
9,902 ac
(4,007 ha).
681 ac (276
ha).
91,603 ac
(37,070 ha).
338,100 ac (136,824
ha).
Note: Area sizing may not sum due to rounding.
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We present brief descriptions of all
units, and reasons why they meet the
definition of critical habitat for the black
pinesnake, below.
Unit 1: Ovett—Jones and Wayne
Counties, Mississippi
Unit 1 encompasses approximately
47,177 ac (19,092 ha) on Federal and
private land in Jones and Wayne
Counties, Mississippi. This unit is
located between the Bogue Homo River
and Thompson Creek, is approximately
2.0 mi (3.2 km) northeast of Ovett, and
is mostly within the boundary of the
Chickasawhay Ranger District of the De
Soto National Forest (DNF). It is located
just east of State Highway 15, west of
Salem Road, north of the intersection of
State Highway 15 and County Road 205,
and approximately 1.3 mi (2.1 km)
south of the intersection of Freedom
Road and Forest Road.
The majority of this unit (40,637 ac
(16,445 ha)) is on Federal lands within
the DNF, with the remainder of the unit
(6,540 ac (2,647 ha)) on private land.
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Unit 1 contains all elements of the
physical or biological features of the
black pinesnake to support life-history
functions essential to the conservation
of the subspecies.
There are records of eight black
pinesnakes located within Unit 1 since
1990. Many of these are located on the
higher ridges within the unit boundary,
but are within close enough proximity
to each other (with contiguous habitat
between) for all of them to belong to the
same breeding population. Habitat
management on the section of this unit
owned by the U.S. Forest Service (86
percent) is performed under the Revised
Land and Resource Management Plan
for National Forests in Mississippi (U.S.
Forest Service 2014, 207 pp.). The other
14 percent is privately owned. This
forest plan contains objectives for the
threatened gopher tortoise and
endangered red-cockaded woodpecker
(Picoides borealis), both of which occur
on Unit 1. These objectives include
restoring and opening up canopy
conditions in areas with sandy soils and
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in mature and old-growth pine forests
and woodlands, with 1- to 3-year fire
intervals; however, there are no
management practices outlined in this
plan that specifically target all of the
habitat requirements of the black
pinesnake.
Threats to the black pinesnake and its
habitat in Unit 1 that may require
special management considerations or
protection of the physical or biological
features include: Fire suppression and
low fire frequencies; detrimental
alterations in forestry practices that
could destroy belowground soil
structures such as clear-cutting, disking,
or stump removal; land use conversion
and fragmentation, primarily urban
development, new roads, and
conversion to agriculture and pine
plantations; utility easements; road
mortality; and encroachment of invasive
species.
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Unit 2: Piney Woods Creek—Wayne and
Perry Counties, Mississippi
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Unit 2 encompasses approximately
22,389 ac (9,061 ha) on Federal and
private land located primarily in Wayne
County, Mississippi, with a small
portion extending into Perry County,
Mississippi. This unit is located
between Thompson Creek and Piney
Woods Creek, is approximately 4.0 mi
(6.4 km) west of Clara, and is mostly
within the boundary of the
Chickasawhay Ranger District of the
DNF. It is located 2.3 mi (3.7 km) north
of the intersection of Camp Eight Road
and Will Best Road, and 0.4 mi (0.6 km)
southeast of the intersection of ClaraStrengthford Road and ClaraStrengthford Reservoir Road.
The majority of this unit (17,744 ac
(7,181 ha)) is on Federal lands within
the DNF, with the remainder of the Unit
(4,645 ac (1,880 ha)) on private land.
Unit 2 contains all elements of the
physical or biological features of the
black pinesnake to support life-history
functions essential to the conservation
of the subspecies.
There are records of five black
pinesnakes located within Unit 2 since
1990. Many of these are located on the
higher ridges within the unit boundary,
but are within close enough proximity
to each other (with contiguous habitat
between) for all of them to belong to the
same breeding population. Habitat
management on the section of this unit
owned by the U.S. Forest Service (79
percent) is performed under the Revised
Land and Resource Management Plan
for National Forests in Mississippi (U.S.
Forest Service 2014, 207 pp.) (see
discussion under Unit 1, above).
Threats to the black pinesnake and its
habitat in Unit 2 that may require
special management considerations or
protection of the physical or biological
features include: Fire suppression and
low fire frequencies; detrimental
alterations in forestry practices that
could destroy belowground soil
structures such as clear-cutting, disking,
or stump removal; land use conversion
and fragmentation, primarily urban
development, new roads, and
conversion to agriculture and pine
plantations; gas, water, electrical power,
and sewer easements; road mortality;
and encroachment of invasive species.
Unit 3: Cypress Creek—Forrest, Perry,
George, and Greene Counties,
Mississippi
Unit 3 is the largest of all the units,
encompassing approximately 145,143 ac
(58,737 ha) on Federal, State, local, and
private land in Forrest, Perry, George,
and Greene Counties, Mississippi. This
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unit is located north of Black Creek
(Cypress Creek runs into part of the
unit, but is not a barrier to gene flow),
and is approximately 3.0 mi (4.8 km)
east of McLaurin, 1.8 mi (2.9 km) south
of New Augusta, and 4.6 mi (7.4 km)
northwest of Benndale. Unit 3 is mostly
within the installation boundary of
Camp Shelby on the De Soto Ranger
District of the DNF, and is bordered by
State Highways 26 and 57 and U.S.
Highways 49 and 98.
The majority of this unit (131,045 ac
(53,032 ha)) is on Federal lands, with
another 1,768 ac (715 ha) on State lands;
41 ac (16 ha) on local, county-owned
lands; and the remainder (12,289 ac
(4,973 ha)) on private land. This unit
contains 5,735 ac (2,321 ha) of Stateand Department of Defense (DoD)owned lands that are covered under the
Camp Shelby INRMP, which are
exempted from proposed critical habitat
designation (see Application of Section
4(a)(3) of the Act under Exemptions,
below). Unit 3 contains all elements of
the physical or biological features of the
black pinesnake to support life-history
functions essential to the conservation
of the subspecies.
There are over 100 records of black
pinesnakes located within Unit 3 since
2004, as compiled by The Nature
Conservancy’s Camp Shelby Field
Office. Many of these are located on the
higher ridges within the unit boundary,
but are within close enough proximity
to each other (with contiguous habitat
between) for all of them to belong to the
same breeding population. Habitat
management on the section of this unit
owned by the U.S. Forest Service is
performed under the Revised Land and
Resource Management Plan for National
Forests in Mississippi (U.S. Forest
Service 2014, 207 pp.). In addition to
containing objectives for the threatened
gopher tortoise and endangered redcockaded woodpecker, both of which
occur on Unit 3 (see discussion under
Unit 1, above), it also includes
objectives for the endangered dusky
gopher frog (Rana sevosa), which has
three critical habitat units totaling 961.8
ac (389.2 ha), also located within Unit
3. Forest plan objectives for the dusky
gopher frog include upland forest
management to restore and improve
open-canopied conditions compatible
with black pinesnake habitat
requirements.
Threats to the black pinesnake and its
habitat in Unit 3 that may require
special management considerations or
protection of the physical or biological
features include: Fire suppression and
low fire frequencies; detrimental
alterations in forestry practices that
could destroy belowground soil
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12855
structures such as clear-cutting, disking,
or stump removal; land use conversion
and fragmentation, primarily urban
development, new roads, and
conversion to agriculture and pine
plantations; gas, water, electrical power,
and sewer easements; road mortality;
and encroachment of invasive species.
Unit 4: Maxie—Forrest, Perry, and Stone
Counties, Mississippi
Unit 4 encompasses a total of
approximately 59,527 ac (24,090 ha) on
Federal and private land in Forrest,
Perry, and Stone Counties, Mississippi.
Located south of Black Creek and 3.0 mi
(4.8 km) north of Wiggins, this unit is
bisected into two subunits (4A and 4B)
by U.S. Highway 49. Both subunits are
buffered from U.S. Highway 49 by at
least 328 ft (100 m). The close proximity
of black pinesnake records with
adjacent suitable habitat would have
made Unit 4 a single unit following the
criteria for designation of critical
habitat, if not for the presence of U.S.
Highway 49, which is a significant
source of fragmentation and is
potentially restricting gene flow
between the two subunits.
Subunit 4A is located between Double
Branch and U.S. Highway 49 in Forrest
and Stone Counties, Mississippi. It is
0.3 mi (4.8 km) northwest of Bond and
0.5 mi (0.8 km) southwest of Maxie, and
is located mostly within the boundary of
the De Soto Ranger District of the DNF.
Most of this subunit (8,883 ac (3,595
ha)) is on Federal lands within the DNF,
with the remainder of the subunit (6,334
ac (2,563 ha)) on private land. There are
records of two black pinesnakes located
within subunit 4A since 1990. These are
located on the eastern edge of the
subunit, but have contiguous habitat
with the rest of the area.
Subunit 4B is located between Black
Creek and U.S. Highway 49 in Forrest,
Perry, and Stone Counties, Mississippi.
It is directly adjacent to Maxie on the
western border, and is located mostly
within the boundary of the De Soto
Ranger District of the DNF. Most of this
subunit (28,233 ac (11,425 ha)) is on
Federal lands within the DNF, with the
remainder of the subunit (16,078 ac
(6,507 ha)) on private land. There are
records of four black pinesnakes located
within subunit 4B since 1990. These are
located on the higher ridges of the
subunit, but have contiguous habitat
with the rest of the area.
Both subunits of Unit 4 are within the
geographic area of the subspecies
occupied at the time of listing. They
contain all elements of the physical or
biological features of the black
pinesnake to support life-history
functions essential to the conservation
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of the subspecies. Habitat management
on the section of these subunits owned
by the U.S. Forest Service (86 percent)
is performed under the Revised Land
and Resource Management Plan for
National Forests in Mississippi (U.S.
Forest Service 2014, 207 pp.). This
forest plan contains objectives for the
threatened gopher tortoise, which
occurs on both subunits of Unit 4. These
objectives include restoring and opening
up canopy conditions in areas with
sandy soils with 1- to 3-year fire
intervals; however, there are no
management practices outlined in this
plan that specifically target the habitat
requirements of the black pinesnake.
Subunit 4B also contains two units
designated as critical habitat for the
endangered dusky gopher frog, totaling
598.6 ac (242.2 ha) (see discussion of
Unit 3, above, for more about forest plan
objectives for the gopher frog).
Threats to the black pinesnake and its
habitat in Unit 4 that may require
special management considerations or
protection of the physical or biological
features include: Fire suppression and
low fire frequencies; detrimental
alterations in forestry practices that
could destroy belowground soil
structures such as clear-cutting, disking,
or stump removal; land use conversion
and fragmentation, primarily urban
development, new roads, and
conversion to agriculture and pine
plantations; gas, water, electrical power,
and sewer easements; road mortality;
and encroachment of invasive species.
Unit 5: Howison—Stone and Harrison
Counties, Mississippi
Unit 5 encompasses approximately
12,949 ac (5,240 ha) on Federal, local,
and private land in Harrison and Stone
Counties, Mississippi. This unit is
located between Tuxachanie Creek and
U.S. Highway 49, approximately 0.4 mi
(0.6 km) east of Howison and 1.3 mi (2
km) southeast of McHenry, and this unit
is mostly within the boundary of the De
Soto Ranger District of the DNF. The
unit is bordered on the northern edge by
E. McHenry Road and on the western
edge by U.S. Highway 49 (buffered from
the highway by at least 328 ft (100 m)).
The majority of this unit (9,371 ac
(3,792 ha)) is on Federal lands within
the DNF, with the remainder of the unit
on local (640 ac (259 ha)) and private
(2,938 ac (1,189 ha)) lands. Unit 5
contains all elements of the physical or
biological features of the black
pinesnake to support life-history
functions essential to the conservation
of the subspecies.
There are records of seven black
pinesnakes located within Unit 5 since
1990. Many of these are located on the
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higher ridges within the unit boundary,
but are within close enough proximity
of each other (with contiguous habitat
between) for all of them to belong to the
same breeding population. Habitat
management on the section of this unit
owned by the U.S. Forest Service is
performed under the Revised Land and
Resource Management Plan for National
Forests in Mississippi (U.S. Forest
Service 2014, 207 pp.). This forest plan
contains objectives for the threatened
gopher tortoise, which occurs on Unit 5
(see discussion for Unit 4, above).
Threats to the black pinesnake and its
habitat in Unit 5 that may require
special management considerations or
protection of the physical or biological
features include: Fire suppression and
low fire frequencies; detrimental
alterations in forestry practices that
could destroy belowground soil
structures such as clear-cutting, disking,
or stump removal; land use conversion
and fragmentation, primarily urban
development, new roads, and
conversion to agriculture and pine
plantations; gas, water, electrical power,
and sewer easements; road mortality;
and encroachment of invasive species.
Unit 6: Marion County WMA—Marion
County, Mississippi
Unit 6 encompasses approximately
11,857 ac (4,798 ha) on State and private
land in Marion County, Mississippi.
This unit is located between the Upper
Little Creek and Lower Little Creek, 7.0
mi (11 km) southeast of Columbia. It is
located 0.8 mi (1.3 km) north of State
Highway 13, and 2.6 mi (4.2 km) south
of U.S. Highway 98. Approximately half
of Unit 6 is within the Marion County
WMA.
The unit is divided between State
lands (5,587 ac (2,261 ha)) and private
lands (6,270 ac (2,537 ha)). Unit 6
contains all elements of the physical or
biological features of the black
pinesnake to support life-history
functions essential to the conservation
of the subspecies.
There are records of two black
pinesnakes located within Unit 6 since
1990. These are both located on the
WMA, although there is contiguous
suitable habitat across the remainder of
the unit. Regulations on the WMA
include prohibitions of wildlife
harassment; however, there are no
habitat management activities occurring
at the WMA that specifically target the
habitat requirements of the black
pinesnake.
Threats to the black pinesnake and its
habitat in Unit 6 that may require
special management considerations or
protection of the physical or biological
features include: Fire suppression and
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low fire frequencies; detrimental
alterations in forestry practices that
could destroy belowground soil
structures such as clear-cutting, disking,
or stump removal; land use conversion
and fragmentation, primarily urban
development, new roads, and
conversion to agriculture and pine
plantations; gas, water, electrical power,
and sewer easements; road mortality;
and encroachment of invasive species.
Unit 7: Scotch WMA—Clarke County,
Alabama
Unit 7 encompasses approximately
33,395 ac (13,514 ha) of private land in
Clarke County, Alabama. This unit is
bordered by Salitpa Creek to the south,
Tallahatta Creek to the north, and Harris
Creek to the west. It is located
approximately 2.7 mi (4.3 km) southeast
of Campbell, and approximately half of
the unit is on the Scotch WMA. Unit 7
is located 1.1 mi (1.8 km) north of the
intersection of Old Mill Pond Road and
Reedy Branch Road.
This unit contains all elements of the
physical or biological features of the
black pinesnake to support life-history
functions essential to the conservation
of the subspecies.
There are records of four black
pinesnakes located within Unit 7 since
1990. Many of these are located on the
higher ridges within the unit boundary,
but are within close enough proximity
to each other (with contiguous habitat
between) for all of them to belong to the
same breeding population. Most of this
unit is managed by Scotch Land
Management, LLC; however, there are
no management practices on this unit
that specifically target the habitat
requirements of the black pinesnake.
Threats to the black pinesnake and its
habitat in Unit 7 that may require
special management considerations or
protection of the physical or biological
features include: Fire suppression and
low fire frequencies; detrimental
alterations in forestry practices that
could destroy belowground soil
structures such as clear-cutting, disking,
or stump removal; land use conversion
and fragmentation, primarily urban
development, new roads, and
conversion to agriculture and pine
plantations; gas, water, electrical power,
and sewer easements; road mortality;
and encroachment of invasive species.
Unit 8: Fred T. Stimpson WMA—Clarke
County, Alabama
Unit 8 encompasses approximately
5,661 ac (2,291 ha) on State and private
land in Clarke County, Alabama. This
unit is located between Sand Hill Creek
and the Tombigbee River, is
approximately 2.5 mi (4 km) north of
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Carlton, and is 1.0 mi (1.6 km) south of
the intersection of County Road 15 and
Christian Vall Road. The southern half
of this unit is on the Fred T. Stimpson
WMA.
Approximately half of the unit (2,547
ac (1,031 ha)) is on State lands, with the
remainder of the unit (3,114 ac (1,260
ha)) on private land. Unit 8 contains all
elements of the physical or biological
features of the black pinesnake to
support life-history functions essential
to the conservation of the subspecies.
There are records of two black
pinesnakes located within Unit 8 since
1990. These are both located on the
WMA, although there is contiguous
suitable habitat across the remainder of
the unit. There are no habitat
management practices outlined at the
site that specifically target the habitat
requirements of the black pinesnake.
Threats to the black pinesnake and its
habitat in Unit 8 that may require
special management considerations or
protection of the physical or biological
features include: Fire suppression and
low fire frequencies; detrimental
alterations in forestry practices that
could destroy belowground soil
structures such as clear-cutting, disking,
or stump removal; land use conversion
and fragmentation, primarily urban
development, new roads, and
conversion to agriculture and pine
plantations; gas, water, electrical power,
and sewer easements; road mortality;
and encroachment of invasive species.
Effects of Critical Habitat Designation
Rmajette on DSK2VPTVN1PROD with PROPOSALS2
Section 7
Consultation
Section 7(a)(2) of the Act requires
Federal agencies, including the Service,
to ensure that any action they fund,
authorize, or carry out is not likely to
jeopardize the continued existence of
any endangered species or threatened
species or result in the destruction or
adverse modification of designated
critical habitat of such species. In
addition, section 7(a)(4) of the Act
requires Federal agencies to confer with
the Service on any agency action that is
likely to jeopardize the continued
existence of any species proposed to be
listed under the Act or result in the
destruction or adverse modification of
proposed critical habitat.
Decisions by the 5th and 9th Circuit
Courts of Appeals have invalidated our
regulatory definition of ‘‘destruction or
adverse modification’’ (50 CFR 402.02)
(see Gifford Pinchot Task Force v. U.S.
Fish and Wildlife Service, 378 F. 3d
1059 (9th Cir. 2004) and Sierra Club v.
U.S. Fish and Wildlife Service, 245 F.3d
434 (5th Cir. 2001)), and we do not rely
on this regulatory definition when
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analyzing whether an action is likely to
destroy or adversely modify critical
habitat. Under the statutory provisions
of the Act, we determine destruction or
adverse modification on the basis of
whether, with implementation of the
proposed Federal action, the affected
critical habitat would continue to serve
its intended conservation role for the
species.
If a Federal action may affect a listed
species or its critical habitat, the
responsible Federal agency (action
agency) must enter into consultation
with us. Examples of actions that are
subject to the section 7 consultation
process are actions on State, tribal,
local, or private lands that require a
Federal permit (such as a permit from
the U.S. Army Corps of Engineers under
section 404 of the Clean Water Act (33
U.S.C. 1251 et seq.) or a permit from the
Service under section 10 of the Act) or
that involve some other Federal action
(such as funding from the Federal
Highway Administration, Federal
Aviation Administration, or the Federal
Emergency Management Agency).
Federal actions not affecting listed
species or critical habitat, and actions
on State, tribal, local, or private lands
that are not federally funded or
authorized, do not require section 7
consultation.
As a result of section 7 consultation,
we document compliance with the
requirements of section 7(a)(2) through
our issuance of:
(1) A concurrence letter for Federal
actions that may affect, but are not
likely to adversely affect, listed species
or critical habitat; or
(2) A biological opinion for Federal
actions that may affect and are likely to
adversely affect, listed species or critical
habitat.
When we issue a biological opinion
concluding that a project is likely to
jeopardize the continued existence of a
listed species and/or destroy or
adversely modify critical habitat, we
provide reasonable and prudent
alternatives to the project, if any are
identifiable, that would avoid the
likelihood of jeopardy and/or
destruction or adverse modification of
critical habitat. We define ‘‘reasonable
and prudent alternatives’’ (at 50 CFR
402.02) as alternative actions identified
during consultation that:
(1) Can be implemented in a manner
consistent with the intended purpose of
the action,
(2) Can be implemented consistent
with the scope of the Federal agency’s
legal authority and jurisdiction,
(3) Are economically and
technologically feasible, and
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12857
(4) Would, in the Director’s opinion,
avoid the likelihood of jeopardizing the
continued existence of the listed species
and/or avoid the likelihood of
destroying or adversely modifying
critical habitat.
Reasonable and prudent alternatives
can vary from slight project
modifications to extensive redesign or
relocation of the project. Costs
associated with implementing a
reasonable and prudent alternative are
similarly variable.
Regulations at 50 CFR 402.16 require
Federal agencies to reinitiate
consultation on previously reviewed
actions in instances where we have
listed a new species or subsequently
designated critical habitat that may be
affected and the Federal agency has
retained discretionary involvement or
control over the action (or the agency’s
discretionary involvement or control is
authorized by law). Consequently,
Federal agencies sometimes may need to
request reinitiation of consultation with
us on actions for which formal
consultation has been completed, if
those actions with discretionary
involvement or control may affect
subsequently listed species or
designated critical habitat.
Application of the ‘‘Adverse
Modification’’ Standard
The key factor related to the adverse
modification determination is whether,
with implementation of the proposed
Federal action, the affected critical
habitat would continue to serve its
intended conservation role for the
species. Activities that may destroy or
adversely modify critical habitat are
those that alter the PBFs to an extent
that appreciably reduces the
conservation value of critical habitat for
the black pinesnake. As discussed
above, the role of critical habitat is to
support life-history needs of the species
and provide for the conservation of the
species.
Section 4(b)(8) of the Act requires us
to briefly evaluate and describe, in any
proposed or final regulation that
designates critical habitat, activities
involving a Federal action that may
destroy or adversely modify such
habitat, or that may be affected by such
designation.
Activities that may affect critical
habitat, when carried out, funded, or
authorized by a Federal agency, should
result in consultation for the black
pinesnake. These activities include, but
are not limited to:
(1) Forestry management actions in
pine habitat that would significantly
alter the suitability of black pinesnake
habitat. Such activities could include,
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but are not limited to: Silvicultural
activites such as disking, bedding, and
clear-cutting that involve ground
disturbance; conversion to densely
stocked pine plantations; and chemical
applications (pesticides or herbicides)
that are either unlawful or that are not
directly aimed at hazardous fuels
reduction, mid-story hardwood control,
or noxious weed control. These
activities could destroy or alter the pine
forest habitats and refugia necessary for
the growth and development of black
pinesnakes, and may reduce
populations of the snake’s primary prey
(rodents), either through direct
extermination or through loss of the
forage necessary to sustain the prey
base.
(2) Actions that would significantly
fragment black pinesnake populations.
Such activities could include, but are
not limited to: Conversion of timber
land to other uses (agricultural, urban/
residential development) and
construction of new structures or roads.
These activities could lead to
degradation or elimination of forest
habitat, limit or prevent breeding
opportunities between black
pinesnakes, limit access to familiar
refugia or nesting sites within
individual home ranges, and increase
the frequency of road mortality from
road crossings.
Exemptions
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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
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protection, enhancement, and
restoration where necessary to support
fish and wildlife; and enforcement of
applicable natural resource laws.
Section 4(a)(3)(B)(i) of the Act (16
U.S.C. 1533(a)(3)(B)(i)) provides that:
‘‘The Secretary shall not designate as
critical habitat any lands or other
geographic areas owned or controlled by
the Department of Defense, or
designated for its use, that are subject to
an Integrated Natural Resources
Management Plan prepared under
section 101 of the Sikes Act (16 U.S.C.
670a), if the Secretary determines in
writing that such plan provides a benefit
to the species for which critical habitat
is proposed for designation.’’
We consult with the military on the
development and implementation of
INRMPs for installations with listed
species. We analyzed one INRMP
developed by military installations
located within the range of the proposed
critical habitat designation for the black
pinesnake to determine if it met the
criteria for exemption from critical
habitat under section 4(a)(3) of the Act.
Approved INRMP
Camp Shelby Joint Forces Training
Center (Camp Shelby), 5,735 ac (2,321
ha)
Camp Shelby is located in Forrest,
George, and Perry Counties, near the
town of Hattiesburg, Mississippi, and
contains habitat with features essential
to the conservation of the black
pinesnake. The primary mission of
Camp Shelby is to train U.S. Army
soldiers (National Guard and Reserve)
for combat and combat-related missions.
Training activities at Camp Shelby
primarily include troop bivouacking,
wheeled vehicle maneuvers, artillery
firing exercises, and tank training
maneuvers.
Camp Shelby is composed of property
belonging in four different categories:
Department of Defense (DoD), State,
United States Forest Service (USFS),
and private land. The main part of
Camp Shelby’s training area belongs to
the USFS and is operated under a
special use permit from the USFS
granted in 2007 for 20 years (see
discussion under Exclusions Based on
National Security Impacts, below). The
DoD and State lands are managed by the
Mississippi Army National Guard
(MSARNG) in support of the military
mission, and the Camp Shelby INRMP
addresses integrative management on
these lands only (MSARNG 2014, p. 13).
These DoD and State lands, included in
the INRMP, with habitat features
essential to the conservation of the black
pinesnake, total approximately 5,558 ac
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(2,249 ha). We have examined the
INRMP and determined that it does
outline conservation measures for the
black pinesnake, as well as management
plans for important upland habitats at
Camp Shelby. Conservation measures
outlined in the INRMP for the black
pine snake at Camp Shelby include:
Research on life history, habitat
requirements, and habitat use;
monitoring; prescribed burning and
longleaf pine restoration programs,
including increasing the frequency of
growing season burns, reducing canopy
closure and basal area, and restoring the
natural fire regime; protecting and
maintaining downed deadwood and
pine stumps (when not identified as a
safety hazard); and implementation of
education programs for users of Camp
Shelby (geared towards minimizing the
negative impacts of vehicular mortality
on the black pine snake and other
species) (MSARNG 2014, pp. 92–94).
The INRMP will continue to be
reviewed annually to monitor the
effectiveness of the plan, and be
reviewed every 5 years to develop
revisions and updates as necessary.
Based on the above considerations,
and in accordance with section
4(a)(3)(B)(i) of the Act, we have
determined that the identified lands are
subject to the Camp Shelby INRMP and
that conservation efforts identified in
the INRMP will provide a benefit to the
black pinesnake. Therefore, DoD and
State lands within this installation,
which are covered under the INRMP,
are exempt from critical habitat
designation under section 4(a)(3) of the
Act. We are not including
approximately 5,558 ac (2,249 ha) of
habitat in this proposed critical habitat
designation because of this exemption.
Exclusions
Section 4(b)(2) of the Act states that
the Secretary shall designate and make
revisions to critical habitat on the basis
of the best available scientific data after
taking into consideration the economic
impact, national security impact, and
any other relevant impact of specifying
any particular area as critical habitat.
The Secretary may exclude an area from
critical habitat if 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
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which factor(s) to use and how much
weight to give to any factor.
Under section 4(b)(2) of the Act, we
may exclude an area from designated
critical habitat based on economic
impacts, impacts on national security,
or any other relevant impacts. In
considering whether to exclude a
particular area from the designation, we
identify the benefits of including the
area in the designation, identify the
benefits of excluding the area from the
designation, and evaluate whether the
benefits of exclusion outweigh the
benefits of inclusion. If the analysis
indicates that the benefits of exclusion
outweigh the benefits of inclusion, the
Secretary may exercise her discretion to
exclude the area only if such exclusion
would not result in the extinction of the
species.
When considering 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.
In the case of the black pinesnake, the
benefits of critical habitat include
public awareness of the presence of the
black pinesnake and the importance of
habitat protection, and, where a Federal
nexus exists, increased habitat
protection for the black pinesnake due
to protection from adverse modification
or destruction of critical habitat. In
practice, situations with a Federal nexus
exist primarily on Federal lands or for
projects undertaken by Federal agencies.
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
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 we receive
during the public comment period, we
will evaluate whether certain lands in
the proposed critical habitat in a portion
of Unit 3 are appropriate for exclusion
from the final designation under section
4(b)(2) of the Act (see discussion under
Exclusions Based on National Security
Impacts, below). If the analysis
indicates that the benefits of excluding
lands from the final designation
outweigh the benefits of designating
those lands as critical habitat, then the
Secretary may exercise her discretion to
exclude the lands from the final
designation.
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The final decision on whether to
exclude any areas will be based on the
best scientific data available at the time
of the final designation, including
information obtained during the
comment period.
Exclusion Based on Economic Impacts
Section 4(b)(2) of the Act and its
implementing regulations require that
we consider the economic impact that
may result from a designation of critical
habitat. To assess the probable
economic impacts of a designation, we
must first evaluate specific land uses or
activities and projects that may occur in
the area of the critical habitat. We then
must evaluate the impacts that a specific
critical habitat designation may have on
restricting or modifying specific land
uses or activities for the benefit of the
species and its habitat within the areas
proposed. We then identify which
conservation efforts may be the result of
the species being listed under the Act
versus those attributed solely to the
designation of critical habitat for this
particular species. The probable
economic impact of a proposed critical
habitat designation is analyzed by
comparing scenarios both ‘‘with critical
habitat’’ and ‘‘without critical habitat.’’
The ‘‘without critical habitat’’ scenario
represents the baseline for the analysis,
which includes the existing regulatory
and socio-economic burden imposed on
landowners, managers, or other resource
users potentially affected by the
designation of critical habitat (e.g.,
under the Federal listing as well as
other Federal, State, and local
regulations). The baseline, therefore,
represents the costs of all efforts
attributable to the listing of the species
under the Act (i.e., conservation of the
species and its habitat incurred
regardless of whether critical habitat is
designated). The ‘‘with critical habitat’’
scenario describes the incremental
impacts associated specifically with the
designation of critical habitat for the
species. The incremental conservation
efforts and associated impacts would
not be expected without the designation
of critical habitat for the species. In
other words, the incremental costs are
those attributable solely to the
designation of critical habitat, above and
beyond the baseline costs. These are the
costs we use when evaluating the
benefits of inclusion and exclusion of
particular areas from the final
designation of critical habitat should we
choose to conduct an optional section
4(b)(2) exclusion analysis.
For this designation, we developed an
incremental effects memorandum (IEM)
considering the probable incremental
economic impacts that may result from
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this proposed designation of critical
habitat. The information contained in
our IEM was then used to develop a
screening analysis of the probable
effects of the designation of critical
habitat for the black pinesnake (IEc
2014). The screening analysis focuses on
the key factors that are likely to result
in incremental economic impacts. The
purpose of the screening analysis is to
filter out the geographic areas in which
the critical habitat designation is
unlikely to result in probable
incremental economic impacts. In
particular, the screening analysis
considers baseline costs (i.e., absent
critical habitat designation) and
includes probable economic impacts
where land and water use may be
subject to conservation plans, land
management plans, best management
practices, or regulations that protect the
habitat area as a result of the Federal
listing status of the subspecies. The
screening analysis filters out particular
areas of critical habitat that are already
subject to such protections and are
therefore, unlikely to incur incremental
economic impacts. Ultimately, the
screening analysis allows us to focus
our analysis on evaluating the specific
areas or sectors that may incur probable
incremental economic impacts as a
result of the designation. The screening
analysis also assesses whether units are
unoccupied by the subspecies and may
require additional management or
conservation efforts as a result of the
critical habitat designation for the
subspecies which may incur
incremental economic impacts. This
screening analysis, combined with the
information contained in our IEM,
constitutes our draft economic analysis
(DEA) of the proposed critical habitat
designation for the black pinesnake and
is summarized in the narrative below.
Executive Orders (E.O.s) 12866 and
13563 direct Federal agencies to assess
the costs and benefits of available
regulatory alternatives in quantitative
(to the extent feasible) and qualitative
terms. Consistent with the E.O.
regulatory analysis requirements, our
effects analysis under the Act may take
into consideration impacts to both
directly and indirectly impacted
entities, where practicable and
reasonable. We assess, to the extent
practicable, the probable impacts, if
sufficient data are available, to both
directly and indirectly impacted
entities. As part of our screening
analysis, we considered the types of
economic activities that are likely to
occur within the areas likely affected by
the critical habitat designation, if
adopted as proposed. In our evaluation
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of the probable incremental economic
impacts that may result from the
proposed designation of critical habitat
for the black pinesnake, first we
identified, in the IEM dated May 2,
2014, probable incremental economic
impacts associated with the following
categories of activities: (1) Federal lands
management (U.S. Forest Service); (2)
forest management; (3) agriculture; (4)
development; (5) silviculture/timber; (6)
transportation activities; and (7)
utilities. We considered each industry
or category individually. Additionally,
we considered whether the activities
have any Federal involvement. Critical
habitat designation would not affect
activities that do not have any Federal
involvement; designation of critical
habitat only affects activities conducted,
funded, permitted, or authorized by
Federal agencies. In areas where the
black pinesnake is present, if we finalize
the listing of the subspecies, Federal
agencies would be required to consult
with the Service under section 7 of the
Act on activities they fund, permit, or
implement that may affect the
subspecies. If we finalize this proposed
critical habitat designation,
consultations to avoid the destruction or
adverse modification of critical habitat
would be incorporated into that
consultation process. Therefore,
disproportionate impacts to any
geographic area or sector would not be
likely as a result of this critical habitat
designation.
In our IEM, we attempted to clarify
the distinction between the effects that
would result from the subspecies being
listed and those attributable to the
critical habitat designation (i.e.,
difference between the jeopardy and
adverse modification standards) for the
black pinesnake’s critical habitat.
Because we are proposing the
designation of critical habitat for black
pinesnake before finalizing (if
appropriate) the subspecies’ listing, it
has been our experience that it is more
difficult to discern which conservation
efforts are attributable to the species
being listed and those which will result
solely from the designation of critical
habitat. However, the following specific
circumstances in this case help to
inform our evaluation: (1) The essential
PBFs identified for critical habitat are
the same features essential for the life
requisites of the subspecies, and (2) any
actions that would result in sufficient
harm or harassment to constitute
jeopardy to the black pinesnake would
also likely adversely affect the essential
physical and biological features of
critical habitat. The IEM outlines our
rationale concerning this limited
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distinction between baseline
conservation efforts and incremental
impacts of the designation of critical
habitat for this subspecies. This
evaluation of the incremental effects has
been used as the basis to evaluate the
probable incremental economic impacts
of this proposed designation of critical
habitat.
The proposed critical habitat
designation for the black pinesnake
consists of eight units, one of which is
divided into two subunits,
encompassing approximately 338,100 ac
(136,824 ha) in Mississippi and
Alabama. Included lands are under
Federal, State, local, and private
ownership, and all are within the area
occupied by the black pinesnake at the
time of listing. Federal land is
predominant in Units 1 through 5. In
these units, Federal lands make up from
58 to 90 percent of the acreage, which
accounts for approximately 70 percent
of the total proposed critical habitat
acreage. Privately owned land is present
in all eight units and ranges from 8
percent to a high of 100 percent in one
unit. Private lands account for
approximately 27 percent of the total
proposed critical habitat acreage.
Approximately 4,647 ac (1,880 ha) of
the proposed designation in one unit
have been identified for potential
exclusion under section 4(b)(2) of the
Act due to a national security concern
(see Exclusions Based on National
Security Impacts, below).
All lands in the proposed critical
habitat designation for the black
pinesnake are currently occupied by the
subspecies. In these areas any actions
that may affect the subspecies or its
habitat would also affect designated
critical habitat, and it is unlikely that
any additional conservation efforts
would be recommended to address the
adverse modification standard over and
above those recommended as necessary
to avoid jeopardizing the continued
existence of the black pinesnake.
Therefore, only administrative costs are
expected in the proposed critical habitat
designation. While this additional
analysis will require time and resources
by both the Federal action agency and
the Service, it is believed that, in most
circumstances, these costs would
predominantly be administrative in
nature and would not be significant.
The entities most likely to incur
incremental costs are parties to section
7 consultations, including Federal
action agencies and, in some cases, third
parties, most frequently State agencies
or municipalities. Activities we expect
will be subject to consultations that may
involve private entities as third parties
are residential and commercial
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development that may occur on private
lands; however, cost to private entities
within these sectors is expected to be
minor as most of the proposed critical
habitat is in Federal ownership (70
percent) and only 27 percent of the
lands are privately owned. According to
a review of consultation records, the
additional administrative cost of
addressing adverse modification during
the section 7 consultation process
ranges from approximately $410 to
$9,000 per consultation. Based on the
project activity identified by relevant
action agencies and comparison to the
consultation history for species that cooccur or share habitat with the black
pinesnake, the number of future formal
consultations is likely to be five or fewer
in the year immediately following the
final designation. In addition, up to 60
informal consultations and five
technical assists could occur annually
following the designation. Thus, the
incremental administrative burden
resulting from the designation is likely
to be less than $190,000 in this first
year, the year with the highest
anticipated costs; therefore, the costs
would not be significant.
In summary, the probable incremental
economic impacts of the black
pinesnake critical habitat designation
are expected to be limited to additional
administrative efforts as well as minor
costs of conservation efforts resulting
from a small number of future section 7
consultations. This finding is based on
the following factors: (1) All proposed
critical habitat is occupied by the
subspecies; thus, the presence of the
subspecies, once it is listed, would
result in significant baseline protection
under the Act; (2) project modifications
requested by the Service to avoid
jeopardy to the subspecies would be the
same as those likely to avoid adverse
modification of critical habitat; (3)
critical habitat would be unlikely to
increase the number of consultations as
a result of the awareness by Federal
agencies of the need to consult if the
subspecies is listed, as well as the past
involvement of key action agencies in
consultations for co-occurring species;
(4) the proposed designation also
receives baseline protection from the
presence of two federally-listed species
(gopher tortoise and red-cockaded
woodpecker) that have habitat needs
similar to those of the pinesnake; and
(5) the proposed designation also
receives baseline protection from
overlap with designated critical habitat
for the dusky gopher frog.
As we stated earlier, we are soliciting
data and comments from the public on
the DEA, as well as all aspects of this
proposed rule. We may revise the
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proposed rule or supporting documents
to incorporate or address information
we receive during the public comment
period. In particular, we may exclude an
area from critical habitat if we
determine that the benefits of excluding
the area outweigh the benefits of
including the area, provided that the
exclusion will not result in the
extinction of the species.
Benefits of Inclusion: Camp Shelby
Impact Area
Under section 4(b)(2) of the Act, we
consider whether there are lands where
a national security impact might exist.
This portion of the Act allows the
Secretary to exercise her discretion to
exclude areas from critical habitat for
reasons of national security if she
determines the benefits of such
exclusion exceed the benefits of
designating the area as critical habitat.
However, this exclusion cannot occur if
it will result in the extinction of the
species.
We are not able to demonstrate any
benefit to including this area in the
critical habitat designation for the black
pinesnake. Access into this area is
prohibited for human safety. The
educational benefit associated with
identifying specific areas as critical
habitat as a means to provide public
with notice of areas of potential
conservation value is realized in that
this area is embedded in currently
proposed critical habitat. Furthermore,
because access into this area is
prohibited, there are likely no habitataltering activities taking place in this
area at the scale that would affect the
physical and biological features
essential to the conservation of this
subspecies. To the contrary, due to the
nature of use of this area, this area
experiences frequent fires, a natural
component of the longleaf pine
ecosystem that promotes optimal forest
conditions for the black pinesnake.
Camp Shelby Joint Forces Training
Center Impact Area
Benefits of Exclusion: Camp Shelby
Impact Area
After considering the Camp Shelby
Joint Forces Training Center Impact
Area occupying a portion (4,647 ac
(1,880 ha)) of Unit 3 in Perry County,
Mississippi, under section 4(b)(2) of the
Act, we are considering excluding it
from the critical habitat designation for
the black pinesnake.
However, we specifically solicit
comments on the inclusion or exclusion
of this area. In the paragraphs below, we
provide a detailed analysis of our
consideration to exclude this land under
section 4(b)(2) of the Act.
The Impact Area of Camp Shelby Joint
Forces Training Center (Camp Shelby) is
a 4,647–ac (1,880–ha) area operated by
the MSARNG for training and maneuver
exercises in an area of the De Soto
National Forest within Unit 3 located in
Perry County, Mississippi. The
MSARNG utilizes this area under a
special use permit from the U.S. Forest
Service, who is the primary landowner
and manager within the installation
boundary. The Impact Area, which is
located in the center of Camp Shelby
and in the northern portion of Unit 3,
has been utilized for artillery training
for decades. As a result, access of any
kind is prohibited in this impact area
due to the high risk of encountering
unexploded ordnance. None of the
acreage within the Impact Area is
covered under the Camp Shelby INRMP;
thus, none of this acreage was
considered for exemption under section
4(a)(3) of the Act (see Approved INRMP
under the Exemptions section, above).
The benefits of excluding
approximately 4,647 ac (1,880 ha) of
U.S. Forest Service lands that
encompasses the Impact Area of Camp
Shelby (which the Mississippi Army
National Guard uses for training
purposes) are significant. Foremost, as a
human safety issue, access of any kind
is prohibited into this area due to the
high risk of encountering unexploded
ordnance; thus, there is no opportunity
to implement management. However, as
stated above, the area experiences
frequent fires due to the nature of its
use, which is the preferred management
technique for maintaining optimal
habitat conditions for the black
pinesnake. In addition, the black
pinesnake receives secondary
conservation benefits from management
of adjacent lands for the threatened
gopher tortoise. Lands within the
Impact Area of Camp Shelby are used
for artillery training that provides
soldiers with essential combat skills that
they use on the battlefield. We believe
that excluding these U.S. Forest Service
lands from critical habitat designation
would remove the potential impact that
a designation of critical habitat could
have on MSARNG and the military’s
ability to maintain national security.
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Benefits of Exclusion Outweigh the
Benefits of Inclusion: Camp Shelby
Impact Area
Though access to the Camp Shelby
Impact Area is prohibited, an analysis of
GIS and aerial imagery determined that
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the Impact Area (4,647 ac (1,880 ha)) of
the Camp Shelby Joint Forces Training
Center contains the physical and
biological features essential to the
conservation of the black pinesnake,
thereby meeting the definition of critical
habitat under the Act. This area is also
contiguous with other proposed critical
habitat with known occurrences for the
black pinesnake. In making our
recommendation to exclude the Camp
Shelby Impact area, we considered
several factors: Prohibited access due to
a human safety issue; the apparent
maintenance of physical and biological
factors essential to the conservation of
the subspecies from frequent burning
due to the nature of use of the area;
protection from habitat loss associated
with land conversion; and potential
impacts to national security associated
with a critical habitat designation. We
believe there are significant benefits to
excluding these lands from critical
habitat designation and are unable to
demonstrate a benefit to including these
lands in the designation. Access is
prohibited into the area; thus, there is
no opportunity for surveying,
monitoring, or management. Therefore,
we have preliminarily determined that
the benefits of exclusion of
approximately 4,647 ac (1,880 ha) of the
Impact Area of Camp Shelby from the
critical habitat designation outweigh the
benefits of including these lands.
Exclusion Will Not Result in Extinction
of the Subspecies: Camp Shelby Impact
Area
The exclusion of this small portion
(4,647 ac (1,880 ha)) from the total
proposed critical habitat designation in
Unit 3 (145,143 ac (58,737 ha)) will have
minimal to no adverse effect on the
subspecies. Adjacent lands contain
habitat for the black pinesnake and are
part of proposed designation.
Maintenance of appropriate habitat for
the black pinesnake with frequent fires
is likely to continue in this area due to
the use of this area for artillery training.
The jeopardy standard of section 7 of
the Act and routine implementation of
conservation measures through the
section 7 process on lands provide
additional assurances that the
subspecies will not become extinct as a
result of this exclusion. Thus, it is our
assessment that the exclusion of the
Camp Shelby Impact Area lands from
the final designation of critical habitat
for the black pinesnake will not result
in the extinction of the subspecies.
Based on this analysis, under section
4(b)(2) of the Act, the Secretary is
considering exercising her discretion to
exclude the Camp Shelby Impact Area
within Unit 3 from the final critical
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habitat designation as a result of
impacts to national security.
Exclusions Based on Other Relevant
Impacts
Under section 4(b)(2) of the Act, we
consider any other relevant impacts, in
addition to economic impacts and
impacts on national security. We
consider a number of factors, including
whether the landowners have developed
any HCPs or other management plans
for the area, or whether there are
conservation partnerships that would be
encouraged by designation of, or
exclusion from, critical habitat. In
addition, we look at any tribal issues,
and consider the government-togovernment relationship of the United
States with tribal entities. We also
consider any social impacts that might
occur because of the designation.
In preparing this proposal, we have
determined that there are currently no
HCPs or other management plans for the
black pinesnake, and the proposed
designation does not include any tribal
lands or trust resources. Therefore, we
anticipate no impact on tribal lands or
HCPs from this proposed critical habitat
designation. Accordingly, the Secretary
does not plan to exercise her discretion
to exclude any areas from the final
designation based on other relevant
impacts.
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Peer Review
In accordance with our joint policy on
peer review published in the Federal
Register on July 1, 1994 (59 FR 34270),
we will seek the expert opinions of at
least three appropriate and independent
specialists regarding this proposed rule.
The purpose of peer review is to ensure
that our critical habitat designation is
based on scientifically sound data and
analyses. We will invite these peer
reviewers to comment during this
public comment period.
We will consider all comments and
information we receive during the
comment period on this proposed rule
during our preparation of a final
determination. Accordingly, the final
decision may differ from this proposal.
Public Hearings
Section 4(b)(5) of the Act provides for
one or more public hearings on this
proposal, if requested. Requests must be
received within 45 days after the date of
publication of this proposed rule in the
Federal Register. Such requests must be
sent to the address shown in the FOR
FURTHER INFORMATION CONTACT section.
We will schedule public hearings on
this proposal, if any are requested, and
announce the dates, times, and places of
those hearings, as well as how to obtain
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reasonable accommodations, in the
Federal Register and local newspapers
at least 15 days before the hearing.
Required Determinations
Regulatory Planning and Review
(Executive Orders 12866 and 13563)
Executive Order 12866 provides that
the Office of Information and Regulatory
Affairs (OIRA) will review all significant
rules. The Office of Information and
Regulatory Affairs has determined that
this rule is not significant.
Executive Order 13563 reaffirms the
principles of E.O. 12866 while calling
for improvements in the nation’s
regulatory system to promote
predictability, to reduce uncertainty,
and to use the best, most innovative,
and least burdensome tools for
achieving regulatory ends. The
executive order directs agencies to
consider regulatory approaches that
reduce burdens and maintain flexibility
and freedom of choice for the public
where these approaches are relevant,
feasible, and consistent with regulatory
objectives. E.O. 13563 emphasizes
further that regulations must be based
on the best available science and that
the rulemaking process must allow for
public participation and an open
exchange of ideas. We have developed
this rule in a manner consistent with
these requirements.
Regulatory Flexibility Act (5 U.S.C. 601
et seq.)
Under the Regulatory Flexibility Act
(RFA; 5 U.S.C. 601 et seq.), as amended
by the Small Business Regulatory
Enforcement Fairness Act of 1996
(SBREFA; 5 U.S.C. 801 et seq.),
whenever an agency is required to
publish a notice of rulemaking for any
proposed or final rule, it must prepare
and make available for public comment
a regulatory flexibility analysis that
describes the effects of the rule on small
entities (i.e., small businesses, small
organizations, and small government
jurisdictions). However, no regulatory
flexibility analysis is required if the
head of the agency certifies the rule will
not have a significant economic impact
on a substantial number of small
entities. The SBREFA amended the RFA
to require Federal agencies to provide a
certification statement of the factual
basis for certifying that the rule will not
have a significant economic impact on
a substantial number of small entities.
According to the Small Business
Administration, small entities include
small organizations such as
independent nonprofit organizations;
small governmental jurisdictions,
including school boards and city and
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town governments that serve fewer than
50,000 residents; and small businesses
(13 CFR 121.201). Small businesses
include manufacturing and mining
concerns with fewer than 500
employees, wholesale trade entities
with fewer than 100 employees, retail
and service businesses with less than $5
million in annual sales, general and
heavy construction businesses with less
than $27.5 million in annual business,
special trade contractors doing less than
$11.5 million in annual business, and
agricultural businesses with annual
sales less than $750,000. To determine
if potential economic impacts to these
small entities are significant, we
considered the types of activities that
might trigger regulatory impacts under
this designation as well as types of
project modifications that may result. In
general, the term ‘‘significant economic
impact’’ is meant to apply to a typical
small business firm’s business
operations.
The Service’s current understanding
of the requirements under the RFA, as
amended, and following recent court
decisions, is that Federal agencies are
only required to evaluate the potential
incremental impacts of rulemaking on
those entities directly regulated by the
rulemaking itself, and therefore, not
required to evaluate the potential
impacts to indirectly regulated entities.
The regulatory mechanism through
which critical habitat protections are
realized is section 7 of the Act, which
requires Federal agencies, in
consultation with the Service, to ensure
that any action authorized, funded, or
carried by the agency is not likely to
adversely modify critical habitat.
Therefore, under these circumstances
only Federal action agencies are directly
subject to the specific regulatory
requirement (avoiding destruction and
adverse modification) imposed by
critical habitat designation. Under these
circumstances, it is our position that
only Federal action agencies will be
directly regulated by this designation.
Federal agencies are not small entities,
and to this end, there is no requirement
under RFA to evaluate the potential
impacts to entities not directly
regulated. Therefore, because no small
entities are directly regulated by this
rulemaking, the Service certifies that, if
promulgated, the proposed critical
habitat designation will not have a
significant economic impact on a
substantial number of small entities.
In summary, we have considered
whether the proposed designation
would result in a significant economic
impact on a substantial number of small
entities. For the above reasons and
based on currently available
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information, we certify that, if
promulgated, the proposed critical
habitat designation would not have a
significant economic impact on a
substantial number of small business
entities. Therefore, an initial regulatory
flexibility analysis is not required.
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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. Based
on an analysis of areas included in this
proposal, we do not expect that the
designation of critical habitat as
proposed would significantly affect
energy supplies, distribution, or use.
Therefore, this action is not a significant
energy action, and no Statement of
Energy Effects is required. However, we
will further evaluate this issue as we
conduct our economic analysis, and
review and revise this assessment as
warranted.
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 would not produce a
Federal mandate. In general, a Federal
mandate is a provision in legislation,
statute, or regulation that would impose
an enforceable duty upon State, local, or
tribal governments, or the private sector,
and includes both ‘‘Federal
intergovernmental mandates’’ and
‘‘Federal private sector mandates.’’
These terms are defined in 2 U.S.C.
658(5)–(7). ‘‘Federal intergovernmental
mandate’’ includes a regulation that
‘‘would impose an enforceable duty
upon State, local, or tribal governments’’
with two exceptions. It excludes ‘‘a
condition of Federal assistance.’’ It also
excludes ‘‘a duty arising from
participation in a voluntary Federal
program,’’ unless the regulation ‘‘relates
to a then-existing Federal program
under which $500,000,000 or more is
provided annually to State, local, and
tribal governments under entitlement
authority,’’ if the provision would
‘‘increase the stringency of conditions of
assistance’’ or ‘‘place caps upon, or
otherwise decrease, the Federal
Government’s responsibility to provide
funding,’’ and the State, local, or tribal
governments ‘‘lack authority’’ to adjust
accordingly. At the time of enactment,
these entitlement programs were:
Medicaid; Aid to Families with
Dependent Children work programs;
Child Nutrition; Food Stamps; Social
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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 nonFederal entities that receive Federal
funding, assistance, or permits, or that
otherwise require approval or
authorization from a Federal agency for
an action, may be indirectly impacted
by the designation of critical habitat, the
legally binding duty to avoid
destruction or adverse modification of
critical habitat rests squarely on the
Federal agency. Furthermore, to the
extent that non-Federal entities are
indirectly impacted because they
receive Federal assistance or participate
in a voluntary Federal aid program, the
Unfunded Mandates Reform Act would
not apply, nor would critical habitat
shift the costs of the large entitlement
programs listed above onto State
governments.
(2) We do not believe that this rule
would significantly or uniquely affect
small governments because the black
pinesnake occurs primarily on Federal
and privately owned lands. None of
these government entities fit the
definition of ‘‘small governmental
jurisdiction.’’ Therefore, a Small
Government Agency Plan is not
required. However, we will further
evaluate this issue as we conduct our
economic analysis, and review and
revise this assessment if appropriate.
Takings—Executive Order 12630
In accordance with Executive Order
12630 (‘‘Government Actions and
Interference with Constitutionally
Protected Private Property Rights’’), we
have analyzed the potential takings
implications of designating critical
habitat for the black pinesnake in a
takings implications assessment. Based
on the best available information, the
takings implications assessment
concludes that this designation of
critical habitat the black pinesnake
would not pose significant takings
implications. However, we will further
evaluate this issue as we develop our
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12863
final designation, and review and revise
this assessment as warranted.
Federalism—Executive Order 13132
In accordance with E.O. 13132
(Federalism), this proposed rule does
not have significant Federalism effects.
A federalism summary impact statement
is not required. In keeping with
Department of the Interior and
Department of Commerce policy, we
requested information from, and
coordinated development of this
proposed critical habitat designation
with appropriate State resource agencies
in Alabama, Louisiana, and Mississippi.
From a federalism perspective, the
designation of critical habitat directly
affects only the responsibilities of
Federal agencies. The Act imposes no
other duties with respect to critical
habitat, either for States and local
governments, or for anyone else. As a
result, the rule does not have substantial
direct effects either on the States, or on
the relationship between the national
government and the States, or on the
distribution of powers and
responsibilities among the various
levels of government. The designation
may have some benefit to these
governments because the areas that
contain the features essential to the
conservation of the subspecies are more
clearly defined, and the PBFs of the
habitat necessary to the conservation of
the subspecies are specifically
identified. This information does not
alter where and what federally
sponsored activities may occur.
However, it may assist these local
governments in long-range planning
(because these local governments no
longer have to wait for case-by-case
section 7 consultations to occur).
Where State and local governments
require approval or authorization from a
Federal agency for actions that may
affect critical habitat, consultation
under section 7(a)(2) would be required.
While non-Federal entities that receive
Federal funding, assistance, or permits,
or that otherwise require approval or
authorization from a Federal agency for
an action, may be indirectly impacted
by the designation of critical habitat, the
legally binding duty to avoid
destruction or adverse modification of
critical habitat rests squarely on the
Federal agency.
Civil Justice Reform—Executive Order
12988
In accordance with Executive Order
12988 (Civil Justice Reform), the Office
of the Solicitor has determined that the
rule does not unduly burden the judicial
system and that it meets the
requirements of sections 3(a) and 3(b)(2)
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of the Order. We are proposing to
designate critical habitat in accordance
with the provisions of the Act. To assist
the public in understanding the habitat
needs of the black pinesnake, this
proposed rule identifies the elements of
PBFs essential to the conservation of the
subspecies. The proposed critical
habitat units are presented on maps, and
the rule provides several options for the
interested public to obtain more
detailed location information, if desired.
Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.)
This rule does not contain any new
collections of information that require
approval by the Office of Management
and Budget (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.
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National Environmental Policy Act (42
U.S.C. 4321 et seq.)
It is our position that, outside the
jurisdiction of the U.S. Court of Appeals
for the Tenth Circuit, we do not need to
prepare environmental analyses
pursuant to the National Environmental
Policy Act in connection with
designating critical habitat under the
Act. We published a notice outlining
our reasons for this determination in the
Federal Register on October 25, 1983
(48 FR 49244). This position was upheld
by the U.S. Court of Appeals for the
Ninth Circuit (Douglas County v.
Babbitt, 48 F.3d 1495 (9th Cir. 1995),
cert. denied 516 U.S. 1042 (1996)).
Government-to-Government
Relationship With Tribes
In accordance with the President’s
memorandum of April 29, 1994
(Government-to-Government Relations
with Native American Tribal
Governments; 59 FR 22951), Executive
Order 13175 (Consultation and
Coordination with Indian Tribal
Governments), and the Department of
the Interior’s manual at 512 DM 2, we
readily acknowledge our responsibility
to communicate meaningfully with
recognized Federal Tribes on a
government-to-government basis. In
accordance with Secretarial Order 3206
of June 5, 1997 (American Indian Tribal
Rights, Federal-Tribal Trust
Responsibilities, and the Endangered
Species Act), we readily acknowledge
our responsibilities to work directly
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with tribes in developing programs for
healthy ecosystems, to acknowledge that
tribal lands are not subject to the same
controls as Federal public lands, to
remain sensitive to Indian culture, and
to make information available to tribes.
We have determined that there are no
tribal lands that are occupied by the
black pinesnake at the time of listing
that contain the features essential for
conservation of the subspecies, and no
tribal lands unoccupied by the black
pinesnake that are essential for the
conservation of the subspecies.
Therefore, we are not proposing to
designate critical habitat for the black
pinesnake on tribal lands.
50 of the Code of Federal Regulations,
as set forth below:
PART 17—ENDANGERED AND
THREATENED WILDLIFE AND PLANTS
1. The authority citation for part 17
continues to read as follows:
■
Authority: 16 U.S.C. 1361–1407; 16 U.S.C.
1531–1544; 16 U.S.C. 4201–4245, unless
otherwise noted.
2. In § 17.95, amend paragraph (c) by
adding an entry for ‘‘Black Pinesnake
(Pituophis melanoleucus lodingi),’’ in
the same alphabetical order that the
species appears in the table at
§ 17.11(h), to read as follows:
■
Clarity of the Rule
§ 17.95
We are required by Executive Orders
12866 and 12988 and by the
Presidential Memorandum of June 1,
1998, to write all rules in plain
language. This means that each rule we
publish must:
(1) Be logically organized;
(2) Use the active voice to address
readers directly;
(3) Use clear language rather than
jargon;
(4) Be divided into short sections and
sentences; and
(5) Use lists and tables wherever
possible.
If you feel that we have not met these
requirements, send us comments by one
of the methods listed in the ADDRESSES
section. To better help us revise the
rule, your comments should be as
specific as possible. For example, you
should tell us the numbers of the
sections or paragraphs that are unclearly
written, which sections or sentences are
too long, the sections where you feel
lists or tables would be useful, etc.
*
References Cited
A complete list of references cited in
this rulemaking is available on the
Internet at https://www.regulations.gov
under Docket No. FWS–R4–ES–2014–
0065 and upon request from the
Mississippi Field Office (see FOR
FURTHER INFORMATION CONTACT).
Authors
The primary authors of this proposed
rule are the staff members of the
Mississippi Field Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species,
Exports, Imports, Reporting and
recordkeeping requirements,
Transportation.
Proposed Regulation Promulgation
Accordingly, we propose to amend
part 17, subchapter B of chapter I, title
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Critical habitat—fish and wildlife.
*
*
(c) Reptiles.
*
*
*
*
*
*
*
Black Pinesnake (Pituophis
melanoleucus lodingi)
(1) Critical habitat units are depicted
for Forrest, George, Greene, Harrison,
Jones, Marion, Perry, Stone, and Wayne
Counties, Mississippi, and Clarke
County, Alabama, on the maps below.
(2) Within these areas, the primary
constituent elements of the physical and
biological features essential to the
conservation of the black pinesnake
consist of three components:
(i) Tract size and habitat structure. A
longleaf pine-dominated forest
maintained by frequent fire, and
primarily having the following
characteristics:
(A) Open canopy (≤ 70 percent);
(B) Reduced woody mid-story (< 10
percent cover);
(C) Abundant, diverse, native
groundcover (at least 40 percent cover);
and
(D) Minimum of 5,000 acres (2,023
hectares) of mostly unfragmented
habitat.
(ii) Refugia sites and topographic
features. Naturally burned-out or rottedout pine stumps and their associated
root systems, in longleaf pine forests on
ridges with elevation of 150 feet (46
meters) or greater.
(iii) Soils. Deep, sandy, well-drained
soils of longleaf pine forest,
characterized by:
(A) No flooding or ponding;
(B) < 15 percent medium and coarse
gravel fragments;
(C) > 60 inches (152 centimeters)
depth to seasonal high water table;
(D) > 60 inches (152 centimeters)
depth to the hardpan;
(E) Textural components equaling >
30 percent sand and < 35 percent clay;
and
(F) A slope < 15 percent.
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(3) Critical habitat does not include
manmade structures (such as buildings,
aqueducts, runways, roads, and other
paved areas) and the land on which they
are located existing within the legal
boundaries on the effective date of this
rule. In addition, State and Department
of Defense lands, covered under the
Camp Shelby INRMP, are also not
considered critical habitat in Unit 3.
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(4) Critical habitat map units. Data
layers defining map units were
developed from USGS 7.5’quadrangles,
and critical habitat units were then
using Universal Transverse Mercator
(UTM) Zone 15N coordinates. The maps
in this entry, as modified by any
accompanying regulatory text, establish
the boundaries of the critical habitat
designation. The coordinates or plot
points or both on which each map is
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12865
based are available to the public at the
Service’s Internet site at https://
www.fws.gov/mississippiES/, at https://
www.regulations.gov at Docket No.
FWS–R4–ES–2014–0065, and at the
field office responsible for this
designation. You may obtain field office
location information by contacting one
of the Service regional offices, the
addresses of which are listed at 50 CFR
2.2.
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Federal Register / Vol. 80, No. 47 / Wednesday, March 11, 2015 / Proposed Rules
BILLING CODE 4310–55–P
(5) NOTE: Index map follows:
Index Map of Critical Habitat Units for the Black Pine Snake
Alabama and Missi
Unit#1
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Harrison
(6) Unit 1: Ovett—Jones and Wayne
Counties, Mississippi.
(i) This unit is located between the
Bogue Homo River and Thompson
Creek, is approximately 2.0 mi (3.2 km)
northeast of Ovett, and is mostly within
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the boundary of the Chickasawhay
Ranger District of the De Soto National
Forest. It is located just east of State
Highway 15, west of Salem Road, north
of the intersection of State Highway 15
and County Road 205, and
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approximately 1.3 mi (2.1 km) south of
the intersection of Freedom Road and
Forest Road.
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Federal Register / Vol. 80, No. 47 / Wednesday, March 11, 2015 / Proposed Rules
12867
(ii) Map of Units 1 (Ovett) and 2
(Piney Woods Creek) follows:
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Units 1 and 2 Critical Habitat for the Black Pine Snake
Jones, Perry and Wayne Counties, Mississippi
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(7) Unit 2: Piney Woods Creek—Perry
and Wayne Counties, Mississippi.
(i) This unit is located between
Thompson Creek and Piney Woods
Creek, is approximately 4.0 mi (6.4 km)
west of Clara, and is mostly within the
boundary of the Chickasawhay Ranger
District of the De Soto National Forest.
It is located 2.3 mi (3.7 km) north of the
intersection of Camp Eight Road and
Will Best Road, and 0.4 mi (0.6 km)
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southeast of the intersection of ClaraStrengthford Road and ClaraStrengthford Reservoir Road.
(ii) Map of Unit 2 (Piney Woods
Creek) is provided at paragraph (6)(ii) of
this entry.
(8) Unit 3: Cypress Creek—Greene,
George, Forrest, and Perry Counties,
Mississippi.
(i) This unit is located north of Black
Creek (Cypress Creek runs into part of
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the unit, but is not a barrier to gene
flow), and is approximately 3.0 mi (4.8
km) east of McLaurin, 1.8 mi (2.9 km)
south of New Augusta, and 4.6 mi (7.4
km) northwest of Benndale. Unit 3 is
mostly within the installation boundary
of Camp Shelby on the De Soto Ranger
District of the De Soto National Forest,
and is bordered by State Highways 26
and 57 and U.S. Highways 49 and 98.
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12869
(ii) Map of Units 3 (Cypress Creek)
and 4 (Maxie) follows:
Units 3, 4A and 48 Critical Habitat for the Black Pine Snake
Forrest,
Greene,
and Stone Counties,
N
W+E
s
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10. 5
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14 Kilometers
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(9) Unit 4: Maxie—Forrest, Perry, and
Stone Counties, Mississippi.
(i) Subunit 4A—Forrest and Stone
Counties, Mississippi. Subunit 4A is
located between Double Branch and
U.S. Highway 49 in Forrest and Stone
Counties, Mississippi. It is 0.3 mi (4.8
km) northwest of Bond and 0.5 mi (0.8
km) southwest of Maxie, and is located
mostly within the boundary of the De
Soto Ranger District of the De Soto
National Forest.
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(ii) Subunit 4B—Forrest, Perry, and
Stone Counties, Mississippi. Subunit 4B
is located between Black Creek and U.S.
Highway 49 in Forrest, Perry, and Stone
Counties, Mississippi. It is directly
adjacent to Maxie on the western
border, and is located mostly within the
boundary of the De Soto Ranger District
of the De Soto National Forest.
(iii) Map of Unit 4 (Maxie) is provided
at paragraph (8)(ii) of this entry.
(10) Unit 5: Howison—Harrison and
Stone Counties, Mississippi.
PO 00000
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(i) This unit is located between
Tuxachanie Creek and U.S. Highway 49,
approximately 0.4 mi (0.6 km) east of
Howison and 1.3 mi (2 km) southeast of
McHenry, and is mostly within the
boundary of the De Soto Ranger District
of the De Soto National Forest. The unit
is bordered on the northern edge by E.
McHenry Road and on the western edge
by U.S. Highway 49 (buffered from the
highway by at least 328 ft (100 m)).
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(ii) Map of Unit 5 (Howison) follows:
Unit 5 Critical Habitat for the Black Pine Snake
Harrison and Stone Counties, Mississippi
McHenry
(11) Unit 6: Marion County WMA—
Marion County, Mississippi.
(i) This unit is located between the
Upper Little Creek and Lower Little
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Creek, 7.0 mi (11 km) southeast of
Columbia. It is located 0.8 mi (1.3 km)
north of State Highway 13, and 2.6 mi
(4.2 km) south of U.S. Highway 98.
PO 00000
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Approximately half of Unit 6 is within
the Marion County Wildlife
Management Area (WMA).
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(ii) Map of Unit 6 (Marion County
WMA) follows:
Unit 6 Critical Habitat for the Black Pine Snake
Marion County, Mississippi
Critical Habitat
Marlon County WMA
County """n""'"
Rivers/Streams/Lakes
(12) Unit 7: Scotch WMA—Clarke
County, Alabama.
(i) This unit is bordered by Salitpa
Creek to the south, Tallahatta Creek to
the north, and Harris Creek to the west.
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It is located approximately 2.7 mi (4.3
km) southeast of Campbell, and
approximately half of the unit is on the
Scotch Wildlife Management Area
(WMA). Unit 7 is located 1.1 mi (1.8
PO 00000
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km) north of the intersection of Old Mill
Pond Road and Reedy Branch Road.
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(ii) Map of Unit 7 (Scotch WMA)
follows:
Unit 7 Critical Habitat for the Black Pine Snake
Clarke County, Alabama
Grove Hill
(13) Unit 8: Fred T. Stimpson WMA—
Clarke County, Alabama.
(i) This unit is located between Sand
Hill Creek and the Tombigbee River, is
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approximately 2.5 mi (4 km) north of
Carlton, and is 1.0 mi (1.6 km) south of
the intersection of County Road 15 and
Christian Vall Road. The southern half
PO 00000
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of this unit is on the Fred T. Stimpson
Wildlife Management Area (WMA).
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(ii) Map of Unit 8 (Fred T. Stimpson
WMA) follows:
Unit 6 Critical Habitat for the Black Pine Snake
Clarke County, Alabama
Critical Habitat
Fred T. Stimpson WMA
Rivers/Streams/Lakes
0
0.75
*
*
*
0.75
*
15
6 Kilometers
4.5
=Roads
3
SMiles
Dated: January 14, 2015.
Michael J. Bean,
Principal Deputy Assistant Secretary for Fish
and Wildlife and Parks.
*
[FR Doc. 2015–05326 Filed 3–10–15; 8:45 am]
BILLING CODE 4310–55–C
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3
1.5
Agencies
[Federal Register Volume 80, Number 47 (Wednesday, March 11, 2015)]
[Proposed Rules]
[Pages 12845-12874]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2015-05326]
[[Page 12845]]
Vol. 80
Wednesday,
No. 47
March 11, 2015
Part II
Department of the Interior
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Fish and Wildlife Service
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50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Designation of Critical
Habitat for Black Pinesnake; Proposed Rule
Federal Register / Vol. 80 , No. 47 / Wednesday, March 11, 2015 /
Proposed Rules
[[Page 12846]]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R4-ES-2014-0065; 4500030114]
RINs 1018-BA24; 1018-BA03
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for Black Pinesnake
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule; reopening of comment period.
-----------------------------------------------------------------------
SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
designate critical habitat for the black pinesnake (Pituophis
melanoleucus lodingi) under the Endangered Species Act (Act). In total,
approximately 338,100 acres (136,824 hectares) in Forrest, George,
Greene, Harrison, Jones, Marion, Perry, Stone, and Wayne Counties,
Mississippi, and in Clarke County, Alabama, fall within the boundaries
of the proposed critical habitat designation. We also announce the
availability of a draft economic analysis (DEA) of the proposed
critical habitat designation. If we finalize this rule as proposed, it
would extend the Act's protections to this species' critical habitat.
In addition, we announce the reopening of the public comment period on
the October 7, 2014, proposed rule to list the black pinesnake as a
threatened species under the Act. We are reopening the comment period
to allow all interested parties an opportunity to comment
simultaneously on the proposed listing rule as well as this proposed
critical habitat rule and its associated DEA. Comments previously
submitted on the proposed listing rule need not be resubmitted, as they
will be fully considered in preparation of that final rule.
DATES: We will accept comments received or postmarked on or before May
11, 2015. Comments submitted electronically using the Federal
eRulemaking Portal (see ADDRESSES, below) must be received by 11:59
p.m. Eastern Time on the closing date. We must receive requests for
public hearings, in writing, at the address shown in FOR FURTHER
INFORMATION CONTACT by April 27, 2015.
ADDRESSES: You may submit comments by one of the following methods:
(1) Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov. In the Search box, enter Docket No. FWS-R4-ES-
2014-0065 for the proposed critical habitat rule and its associated DEA
or FWS-R4-ES-2014-0046 for the proposed listing rule. Then, in the
Search panel on the left side of the screen, under the Document Type
heading, click on the Proposed Rules link to locate the correct
document. You may submit a comment by clicking on ``Comment Now!''
(2) By hard copy: Submit by U.S. mail or hand-delivery to: Public
Comments Processing, Attn: FWS-R4-ES-2014-0065 [for the proposed
critical habitat rule and its associated DEA] or FWS-R4-ES-2014-0046
[for the proposed listing rule]; Division of Policy and Directives
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, MS
2042-PDM; Arlington, VA 22203.
We request that you send comments only by the methods described
above. We will post all comments on https://www.regulations.gov. This
generally means that we will post any personal information you provide
us (see the Information Requested section, below, for more
information).
The coordinates or plot points or both from which the maps are
generated are included in the administrative record for the proposed
critical habitat designation and are available at https://www.fws.gov/mississippiES/, at https://www.regulations.gov at Docket No. FWS-R4-ES-
2014-0065, and at the Mississippi Field Office (see FOR FURTHER
INFORMATION CONTACT). Any additional tools or supporting information
that we may develop for this critical habitat designation will also be
available at the Fish and Wildlife Service Web site and Field Office
listed above, and may also be included in the preamble and/or at https://www.regulations.gov. The proposed listing rule can be read, in its
entirety, at https://www.regulations.gov at Docket No. FWS-R4-ES-2014-
0046 or at the Field Office listed above.
FOR FURTHER INFORMATION CONTACT: Stephen Ricks, Field Supervisor, U.S.
Fish and Wildlife Service, Mississippi Field Office, 6578 Dogwood View
Parkway, Jackson, MS 39213; telephone: 601-321-1122; facsimile: 601-
965-4340. If you use a telecommunications device for the deaf (TDD),
call the Federal Information Relay Service (FIRS) at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. Under the Act, when we determine
that a species is endangered or threatened, we must designate critical
habitat to the maximum extent prudent and determinable. Designations of
critical habitat can only be completed by issuing a rule. On October 7,
2014, we proposed to list the black pinesnake as a threatened species
under the Act (79 FR 60406).
This rule consists of a proposed rule to designate critical habitat
for the black pinesnake, an announcement of the availability of the
associated draft economic analysis (DEA), and an announcement of the
reopening of the comment period for the proposed listing rule for the
black pinesnake.
The basis for our action. Under the Act, if we determine that a
species is endangered or threatened, we must designate critical habitat
at to the maximum extent prudent and determinable. Section 4(b)(2) of
the Act states that the Secretary shall designate 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.
We prepared a draft economic analysis of the proposed designation
of critical habitat. We are making available for public comment the DEA
of the proposed designation of critical habitat for the black
pinesnake.
We will seek peer review. We are seeking comments from independent
specialists to ensure that our critical habitat proposal is based on
scientifically sound data and analyses. We are inviting these peer
reviewers to comment on our specific assumptions and conclusions in the
critical habitat proposal. Because we will consider all comments and
information we receive during the comment period, our final
determination may differ from this critical habitat proposal.
Information Requested
We intend that any final action resulting from this proposed rule
will be based on the best scientific and commercial data available and
be as accurate and as effective as possible. Therefore, we request
comments or information from other concerned government agencies, the
scientific community, industry, or any other interested party
concerning this proposed rule. We particularly seek comments
concerning:
[[Page 12847]]
(1) Additional information concerning the historical and current
status, range, distribution, and population size of the black
pinesnake, including the locations of any additional populations of
this subspecies.
(2) The black pinesnake's biology, range, and population trends,
including:
(a) Biological or ecological requirements of the subspecies,
including habitat requirements for feeding, breeding, and sheltering;
(b) Genetics and taxonomy, including interpretations of existing
studies or whether new information is available;
(c) Historical and current range, including distribution patterns;
(d) Historical and current population levels, and current and
projected trends; and
(e) Past and ongoing conservation measures for the subspecies, its
habitat, or both.
(3) Factors that may affect the continued existence of the
subspecies, which may include habitat modification or destruction,
overutilization, collection for the pet trade, disease, predation, the
inadequacy of existing regulatory mechanisms, or other natural or
manmade factors.
(4) Biological, commercial trade, or other relevant data concerning
any threats (or lack thereof) to this subspecies and existing
regulations that may be addressing those threats.
(5) Any information concerning the appropriateness and scope of the
proposed section 4(d) rule provisions for take of the black pinesnake
(see the proposed listing rule at 79 FR 60406, October 7, 2014). We are
particularly interested in input regarding timber and forest management
and restoration practices that would be appropriately addressed through
a section 4(d) rule, including those that adjust the timing or methods
to minimize impacts to the subspecies or its habitat.
(6) Any additional information on current conservation activities
or partnerships benefitting the subspecies, or opportunities for
additional partnerships or conservation activities that could be
undertaken in order to address threats.
(7) Any information on specific pesticides that could impact the
black pinesnake or its prey base either directly or indirectly, which
could cause further mortality or decline of the subspecies.
(8) The reasons why we should or should not designate habitat as
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et
seq.), including whether there are threats to the subspecies from human
activity, the degree of which can be expected to increase due to the
designation, and whether that increase in threat outweighs the benefit
of designation such that the designation of critical habitat may not be
prudent.
(9) Specific information on:
(a) The amount and distribution of black pinesnake habitat;
(b) What areas, that were occupied at the time of listing (or are
currently occupied) and that contain features essential to the
conservation of the subspecies, should be included in the designation
and why;
(c) Special management considerations or protection that may be
needed in critical habitat areas we are proposing, including managing
for the potential effects of climate change; and
(d) What areas not occupied at the time of listing are essential
for the conservation of the subspecies and why.
(10) Land use designations and current or planned activities in the
subject areas and their possible impacts on proposed critical habitat.
(11) How the patch size of proposed critical habitat was derived
(i.e., how much acreage a viable population of black pinesnakes
requires).
(12) Information on the projected and reasonably likely impacts of
climate change on the black pinesnake and proposed critical habitat.
(13) Any probable economic, national security, or other relevant
impacts of designating any area that may be included in the final
designation; in particular, we seek information on any impacts on small
entities or families, and the benefits of including or excluding areas
that exhibit these impacts.
(14) Information on the extent to which the description of economic
impacts in the draft economic analysis is a reasonable estimate of the
likely economic impacts and is complete and accurate.
(15) The likelihood of adverse social reactions to the designation
of critical habitat, as discussed in the associated documents of the
draft economic analysis, and how the consequences of such reactions, if
likely to occur, would relate to the conservation and regulatory
benefits of the proposed critical habitat designation.
(16) Whether any specific areas we are proposing for critical
habitat designation should be considered for exclusion under section
4(b)(2) of the Act, and whether the benefits of potentially excluding
any specific area outweigh the benefits of including that area under
section 4(b)(2) of the Act.
(17) Whether we could improve or modify our approach to designating
critical habitat in any way to provide for greater public participation
and understanding, or to better accommodate public concerns and
comments.
If you submitted comments or information on the proposed listing
rule (79 FR 60406) during the initial comment period from October 7,
2014, to December 8, 2014, please do not resubmit them. We will
incorporate them into the public record and we will fully consider them
in the preparation of that final determination.
You may submit your comments and materials concerning this proposed
rule and/or the proposed listing rule by one of the methods listed in
ADDRESSES. We request that you send comments only by the methods
described in the ADDRESSES section.
We will post your entire comment--including your personal
identifying information--on https://www.regulations.gov. You may request
at the top of your document that we withhold personal information such
as your street address, phone number, or email address from public
review; however, we cannot guarantee that we will be able to do so.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection on https://www.regulations.gov, or by
appointment, during normal business hours, at the U.S. Fish and
Wildlife Service, Mississippi Field Office (see FOR FURTHER INFORMATION
CONTACT).
Previous Federal Actions
All previous Federal actions are described in the proposed rule to
list the black pinesnake as a threatened species under the Act
published in the Federal Register on October 7, 2014 (79 FR 60406).
Critical Habitat
It is our intent to discuss below only those topics directly
relevant to the designation of critical habitat for the black
pinesnake. For information related to the listing of this subspecies,
see the proposed rule.
Background
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or
protection; and
[[Page 12848]]
(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 (PBFs) (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 PBFs that are essential
to the conservation of the species (such as space, food, cover, and
protected habitat). In identifying those PBFs within an area, we focus
on the principal biological or physical constituent elements (primary
constituent elements, or PCEs, such as roost sites, nesting grounds,
seasonal wetlands, water quality, tide, soil type) that are essential
to the conservation of the species. PCEs are those specific elements of
PBFs that, when laid out in the appropriate quantity and spatial
arrangement, 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. 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 data available. Further, our Policy on
Information Standards under the Endangered Species Act (published in
the Federal Register on July 1, 1994 (59 FR 34271)), the Information
Quality Act (section 515 of the Treasury and General Government
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)),
and our associated Information Quality Guidelines provide criteria,
establish procedures, and provide guidance to ensure that our decisions
are based on the best scientific data available. They require our
biologists, to the extent consistent with the Act and with the use of
the best scientific data available, to use primary and original sources
of information as the basis for recommendations to designate critical
habitat.
When we are determining which areas should be designated as
critical habitat, our primary source of information is generally the
information developed during the listing process for the species.
Additional information sources may include the recovery plan for the
species, articles in peer-reviewed journals, conservation plans
developed by States and counties, scientific status surveys and
studies, biological assessments, other unpublished materials, or
experts' opinions or personal knowledge.
Habitat is dynamic, and species may move from one area to another
over time. We recognize that critical habitat designated at a
particular point in time may not include all of the habitat areas that
we may later determine are necessary for the recovery of the species.
For these reasons, a critical habitat designation does not signal that
habitat outside the designated area is unimportant or may not be needed
for recovery of the species. Areas that are important to the
conservation of the species, both inside and outside the critical
habitat designation, will continue to be subject to: (1) Conservation
actions implemented under section 7(a)(1) of the Act, (2) regulatory
protections afforded by the requirement in section 7(a)(2) of the Act
for Federal agencies to ensure 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 conservation of this
species. Similarly, critical habitat designations made on the basis of
the best available information at the time of designation will not
control the direction and substance of future recovery plans, habitat
conservation plans (HCPs), or other species conservation planning
efforts if new information available at the time of these planning
efforts calls for a different outcome.
Prudency Determination
Section 4(a)(3) of the Act, as amended, and implementing
regulations (50 CFR 424.12), require that, to the maximum extent
prudent and determinable, the Secretary shall designate critical
habitat at the time the species is determined to be an endangered or
threatened species. Our regulations (50 CFR 424.12(a)(1)) state that
the designation of critical habitat is not prudent when one or both of
the following situations exist:
(1) The species is threatened by taking or other human activity,
and identification of critical habitat can be expected to increase the
degree of threat to the species, or
(2) Such designation of critical habitat would not be beneficial to
the species.
There is currently no imminent threat of take attributed to
collection or vandalism under Factor B for the black
[[Page 12849]]
pinesnake (see the proposed listing rule published on October 7, 2014
at 79 FR 60406), and identification and mapping of critical habitat is
not expected to initiate any such threat. Therefore, in the absence of
finding that the designation of critical habitat would increase threats
to a species, if there are any benefits to a critical habitat
designation, a finding that designation is prudent is warranted. Here,
the potential benefits of designation include: (1) Triggering
consultation under section 7 of the Act, in new areas for actions in
which there may be a Federal nexus where it would not otherwise occur
because, for example, it is unoccupied; (2) focusing conservation
activities on the most essential features and areas; (3) providing
educational benefits to State or county governments or private
entities; and (4) preventing people from causing inadvertent harm to
the black pinesnake.
Because we have determined that the designation of critical habitat
will not likely increase the degree of threat to the subspecies and may
provide some measure of benefit, we determine that designation of
critical habitat is prudent for the black pinesnake.
Critical Habitat Determinability
Having determined that designation is prudent, under section
4(a)(3) of the Act we must find whether critical habitat for the black
pinesnake is determinable. Our regulations at 50 CFR 424.12(a)(2) state
that critical habitat is not determinable when one or both of the
following situations exist:
(i) Information sufficient to perform required analyses of the
impacts of the designation is lacking, or
(ii) The biological needs of the species are not sufficiently well
known to permit identification of an area as critical habitat.
At the time of our October 7, 2014, proposed rule to list the
subspecies, a careful assessment of the economic impacts was ongoing,
leading us to find that critical habitat was not determinable. We have
continued to review the available information related to the draft
economic analysis as well as newly acquired information necessary to
perform this assessment. This and other information represent the best
scientific data available, and we now believe the data are sufficient
for us to analyze the impacts of designation. Accordingly, we conclude
that the designation of critical habitat is determinable for the black
pinesnake.
Physical or Biological Features
In accordance with section 3(5)(A)(i) of the Act and regulations at
50 CFR 424.12(b), 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 PBFs 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 historic geographical and ecological
distributions of a species.
We derive the specific PBFs essential for the black pinesnake from
studies of the subspecies and other similar species' habitat, ecology,
and life history as described below. Additional information can be
found in the proposed listing rule published in the Federal Register on
October 7, 2014 (79 FR 60406). We have determined that the following
PBFs are essential for the black pinesnake:
Space for Individual and Population Growth and for Normal Behavior
Telemetry studies and previous records indicate that the black
pinesnake prefers an open canopy, a reduced midstory, and a dense
herbaceous cover typical of a classic longleaf pine forest (see the
``Habitat'' and ``Life History'' sections of our proposed listing rule
published in the Federal Register on October 7, 2014 (79 FR 60406)). An
abundant herbaceous groundcover is typical of those areas characterized
by a more open-canopied condition, as a by-product of the increased
amount of sunlight reaching the forest floor. As an ectotherm (an
organism that regulates its body temperature (i.e., thermoregulates)
primarily by exchanging heat with its surroundings), the black
pinesnake requires this open condition to provide thermoregulatory
opportunities, and possibly to provide proper incubation temperatures
for nests.
Studies of black pinesnakes have supported this subspecies'
preference for a relatively open canopy and reduced mid-story shrub
cover (Duran 1998b, pp. 4-8; Baxley et al. 2011, p. 154). Values for
these landscape features reflecting habitat structure have been
estimated for the black pinesnake by looking to habitat conditions
described for the threatened gopher tortoise (Gopherus polyphemus), a
species sharing the same habitat within the same geographic range in
the longleaf pine ecosystem. Management plans for the tortoise include
upland longleaf pine forest desired conditions of <=70 percent canopy
cover, a shrub cover of <10 percent, and a herbaceous groundcover of at
least 40 to 50 percent (Florida Fish and Wildlife Conservation
Commission (FWCC) 2012, p. 42; U.S. Forest Service 2014, p. 14; Service
2014, p. 1). These same metrics are all indicative of the forest
structure in suitable black pinesnake habitat as well.
Longleaf pine ecosystems have historically been maintained with
fire, as it is necessary for exposing bare mineral soil for seed
germination, increasing nutrient content in forage species, and
reducing competition of hardwood species (DeBerry and Pashley 2008, pp.
20-21). Prescribed burning during the growing season (late spring to
early summer) is more effective at controlling mid-story hardwood
vegetation, thereby promoting a more abundant herbaceous groundcover;
however, some understory plants respond positively to fires in the
dormant season as well (Knapp et al. 2009, p. 2). Therefore, fire
regimes should optimally incorporate variability in their seasonality
and intensity, as a heterogeneous fire regime is likely to maximize
plant biodiversity (Knapp et al. 2009, p. 3). Management of upland
longleaf pine forests should include a fire return interval of 1 to 3
years (FWCC 2012, p. 42; U.S. Forest Service 2014, p. 14), with
variable seasonality and intensity in the fire regime to promote the
open-canopied condition and abundant, diverse forage species that
sustain the prey base (small mammals) for black pinesnakes.
A broad distribution of home ranges have been estimated from
various telemetry studies, from a mean Minimum Convex Polygon (MCP) (a
mathematical tool for determining home range boundaries by connecting
the outer location points) value of 106 acres (ac) (43 hectares (ha))
for adult female pinesnakes (Duran 1998a, p. 19) to a mean MCP value of
551 ac (223 ha) for adult male pinesnakes (Baxley and Qualls 2009, p.
287). The maximum home range reported for a black pinesnake in the
literature is 979 ac (396 ha) for an adult male, and the maximum
distance between consecutive locations in a telemetry study (reported
as a straight-line distance) was 1.3 miles (2.1 kilometers) (Baxley and
Qualls 2009, pp. 287-288). Examination of MCP areas for black
pinesnakes occupying the same general area shows very little
[[Page 12850]]
overlap of home ranges, providing some evidence for territoriality
(Duran 1998a, p. 15). The minimum amount of habitat necessary to
support a viable black pinesnake population (known as reserve area
requirements) has not previously been determined, and estimating those
parameters can be quite challenging, primarily based on the elusive
nature of the subspecies (Wilson et al. 2011, pp. 42-43). We estimated
a minimum black pinesnake reserve size by calculating the total area
covered by two partially overlapping activity areas created from
location points buffered with a radius equaling the maximum known
movement distance for the subspecies (see discussion under Criteria
Used To Identify Critical Habitat). The resulting area of 5,000 ac
(2,023 ha) is considered to be a minimum population reserve size for
the black pinesnake, as long as the area is not highly fragmented (see
discussion under Criteria Used to Identify Critical Habitat).
Fragmentation by roads, urbanization, or incompatible habitat
conversion continues to be a major threat affecting the subspecies (see
Factor E. Other Natural or Manmade Factors Affecting Its Continued
Existence in our proposed listing rule published in the Federal
Register on October 7, 2014 (79 FR 60406)).
For comparison purposes we investigated the population requirements
of another large-bodied, wide-ranging snake with large home ranges that
is also a longleaf pine ecosystem specialist, the threatened eastern
indigo snake (Drymarchon couperi; listed as Drymarchon corais couperi).
Moler (1992, p. 185) recommended that large tracts of land (>=2,500 ac
(1,012 ha)) should be protected in order to have a high probability of
sustaining populations of eastern indigo snakes long term. A modeling
study by Sytsma et al. (2012, pp. 39-40) estimated a reserve size of
10,000 ac (4,047 ha) to be sufficiently large to support a small
population of eastern indigo snakes. Although the eastern indigo
snake's home ranges are larger than the black pinesnake's, these
studies do support the need for large areas to support large, wide-
ranging snake species sensitive to landscape fragmentation. Thus, based
on these estimates of eastern indigo snake reserve size, the available
long distance movement data for the black pinesnake, and data that
describe non-overlapping large home range sizes, we believe that 5,000
ac (2,023 ha) of suitable habitat is an appropriate estimate of the
minimum reserve size for a population of black pinesnakes.
Therefore, based on the information above, we identify open-
canopied pine forest habitat (<=70 percent canopy coverage),
historically dominated by longleaf pine and maintained by frequent
fires, a reduced midstory (<10 percent), and a diverse and abundant
native herbaceous groundcover (>40 percent) to be the physical and
biological features necessary for the conservation of the black
pinesnake. These pine forests should be primarily unfragmented and
occupy at least 5,000 ac (2,023 ha) in area.
Food, Water, Air, Light, Minerals, or Other Nutritional or
Physiological Requirements
Black pinesnakes are known to consume a variety of food, including
nestling rabbits (Sylvilagus aquaticus), bobwhite quail (Colinus
virginianus) and their eggs, and eastern kingbirds (Tyrannus tyrannus)
(Vandeventer and Young 1989, p. 34; Yager et al. 2005, p. 28); however,
rodents represent the most common type of prey. The majority of
documented prey items are hispid cotton rats (Sigmodon hispidus),
various mice species (Peromyscus spp.), and to a lesser extent eastern
fox squirrels (Sciurus niger) (Rudolph et al. 2002, p. 59; Yager et al.
2005, p. 28). Through concurrent studies involving both snake radio-
telemetry and small mammal trapping, it has been documented that the
hispid cotton rat was the most frequently trapped small mammal within
black pinesnake home ranges (Duran 1998a, p. 34), and that the core
home ranges of telemetered black pinesnakes had higher mammal abundance
(especially hispid cotton rats) compared with areas on the periphery of
the snakes' home ranges (Baxley and Qualls 2009, p. 291).
To provide the refugia and food needed to support the rodent prey
base of black pinesnakes, the habitat must have an abundant herbaceous
groundcover. Bluestem grasses (Andropogon and Schizachyrium sp.)
typically represent the dominant groundcover species of the open-
canopied longleaf pine habitat within the geographic range of the black
pinesnake, and bluestem grass stems are a primary food of the hispid
cotton rat (Miller and Miller 2005, p. 202). Research on black
pinesnakes has shown they more frequently occupy forested habitats with
significantly higher cover of herbaceous understory vegetation and
avoid areas with significantly higher percentages of leaf litter (Duran
1998a, p. 11; Baxley et al. 2011, p. 161; Smith 2011, pp. 86 and 100).
Therefore, we identify as a physical and biological feature an
abundant, diverse, native groundcover, as described above under Space
for Individual and Population Growth and for Normal Behavior.
Cover or Shelter
From radio-telemetry studies, it has been shown that black
pinesnakes spend a majority of their time below ground (Duran 1998a, p.
12; Yager et al. 2005, p. 27; Baxley and Qualls 2009, p. 288). The
subterranean environments most commonly utilized by black pinesnakes
are burned-out or rotted-out stump holes (Duran 1998a, p. 12; Yager et
al. 2005, p. 27; Baxley and Qualls 2009, p. 288). Where pine stumps
have become limited, black pinesnakes may utilize gopher tortoise and
nine-banded armadillo (Dasypus novemcinctus) burrows more frequently;
however, the large diameters of these burrows might allow access to a
wide array of potential predators (Rudolph et al. 2007, p. 563).
Rudolph et al. (2007, pp. 560-565) excavated five black pinesnake
winter refugia (overwintering sites) utilized for significant periods
of time from late fall through early spring. They were found to be
located exclusively in chambers formed by the decay and burning of
longleaf pine stumps and root tunnels, at depths of 3.5 to 14 inches
(in) (9 to 35 centimeters (cm)) below the surface (Rudolph et al. 2007,
pp. 560-561). There is also evidence for site fidelity towards specific
winter refugia sites in the genus Pituophis, specifically for northern
pinesnakes. Burger et al. (2012, p. 600) documented hibernacula use by
northern pinesnakes over a 26-year period in New Jersey, and they
determined that even when known hibernacula do not get used for a year,
those hibernacula have a 37 percent chance of being used the following
year. Data on black pinesnake habitat use document site fidelity in
this subspecies as well. During research studies, black pinesnakes have
been shown to return to the same general location during monitoring and
to even return to the same stump hole (Yager et al. 2006, pp. 34-36;
Baxley and Qualls 2009, p. 288). These data on microhabitat use
reinforce the importance of locating and protecting known refugia,
regardless of the seasonality of their use.
In addition to requiring the presence of stump holes, it is
imperative that this microhabitat be in areas where the black
pinesnakes' subterranean refugia will remain above the seasonal water
table, as flooding may increase the potential for harm to the snakes.
An examination of elevation thresholds in the black pinesnake locality
data indicates that the subspecies occurs most frequently along upland
ridges. We determined
[[Page 12851]]
that 90 percent (329) of all black pinesnake locations (post-1980)
occurred in areas >=200 feet (ft) (61 meters (m)) elevation, and 96
percent of these locations (349) were in areas >=150 ft (46 m).
Therefore, based on the information above, we identify the presence
of naturally burned-out or rotted-out pine stumps and their associated
root systems in upland areas at an elevation >=150 ft (46 m), within
historically longleaf-dominated pine forests, to be a physical and
biological feature needed for the conservation of this subspecies.
Sites for Breeding, Reproduction, or Rearing (or Development) of
Offspring
Very little information on breeding and egg-laying of wild black
pinesnakes is available. Lyman et al. (2007, pp. 40-42) documented
mating activities at the entrance to armadillo burrows, and Lee (2007,
p. 93) described mating in a pair of black pinesnakes above ground, but
in the vicinity of a rotted-out pine root system that the pair
subsequently occupied. The only documented natural nest for the
subspecies is a clutch of 6 recently hatched black pinesnake eggs found
29 in (74 cm) below the soil surface at the end of a juvenile gopher
tortoise burrow (burrow width: 2.5 in (6 cm)) in Perry County,
Mississippi (Lee et al. 2011, p. 301). The microhabitat within the
tortoise burrow likely provides a suitable microclimate for egg
incubation in warm climate areas (Lee et al. 2011, p. 301). Female
northern pinesnakes are known to excavate tunnels and nest chambers for
egg deposition (Burger and Zappalorti 1992, p. 331), but it is unknown
whether female black pinesnakes excavate their own nests or only
utilize and modify existing tunnels.
Since there is only one documented natural black pinesnake nest, it
is unknown whether the subspecies exhibits nest site fidelity; however,
nest site fidelity has been described for other Pituophis species and
subspecies. Burger and Zappalorti (1992, pp. 333-335) conducted an 11-
year study of nest site fidelity of northern pinesnakes in New Jersey
and documented the exact same nest site being used for 11 years in a
row, evidence of old egg shells in 73 percent of new nests, and
recapture of 42 percent of female snakes at prior nesting sites.
In addition to the stump holes and associated root systems commonly
used by adult black pinesnakes (Duran 1998a, p. 12; Yager et al. 2005,
p. 27; Baxley and Qualls 2009, p. 288), radio-telemetry data have shown
that yearling and young juvenile black pinesnakes frequently use small
mammal burrows, specifically eastern mole (Scalopus aquaticus) tunnels,
as retreat sites (Lyman et al. 2007, pp. 39-41). Because of this
documented utilization and modification of existing burrow and tunnel
systems, it is necessary for black pinesnakes to have access to areas
with sandy soils for ease of excavation.
Appropriate soils have been described for the gopher tortoise, and
are recognized as one of their key habitat requirements, as they allow
for burrow excavation and nest development (Ernst et al. 1994, p. 466).
Gopher tortoises typically occur where soils have high sand content,
low clay content, and little to no stones or gravel; the soils are
often well-drained and are deep to a water table (Service 2012, p. 3).
When sufficient sunlight reaches the forest floor, sandy soils also
promote herbaceous ground cover (component of PCE 1) as food for
rodents (primary prey of the black pinesnake), and provide the
appropriate environment for egg incubation and hatching (Service 2012,
p. 3). Because black pinesnakes share a requirement for sandy soils
with the gopher tortoise, and the two occur within the same habitat,
characteristics of suitable gopher tortoise soils can also be used to
describe appropriate black pinesnake soils. These soil characteristics
include: (1) No flooding or ponding; (2) <15 percent medium and coarse
gravel fragments; (3) >60 in (152 cm) depth to seasonal high water
table (elevation to which the ground or surface water can be expected
to rise due to a normal or wet season); (4) >60 in (152 cm) depth to
the hardpan (dense layer of soil impervious to plant roots and water);
(5) textural components equaling >30 percent sand and <35 percent clay;
and (6) a slope <15 percent (Service 2012, p. 6). The association of
black pinesnakes utilizing these soil types is corroborated in
telemetry work by Duran (1998b, p. 15), which showed that snakes in his
study spent most of their time on well-drained soils determined to be
appropriate for gopher tortoises.
Therefore, based on the information above, we identify sandy, well-
drained soils characteristic of historically longleaf-dominated upland
pine forest to be a physical and biological feature for this
subspecies. These specific soil series and related soil associations
have the following characteristics: No flooding or ponding; < 15
percent medium and coarse gravel fragments; >60 in (152 cm) depth to
seasonal high water table; >60 in (152 cm) depth to the hardpan;
textural components equaling >30 percent sand and <35 percent clay; and
a slope <15 percent.
Primary Constituent Elements for the Black Pinesnake
According to 50 CFR 424.12(b), we are required to identify the PBFs
essential to the conservation of the black pinesnake in areas occupied
at the time of listing, focusing on the features' primary constituent
elements (PCEs). We consider PCEs to be those specific elements of PBFs
that provide for a species' life-history processes and are essential to
the conservation of the species.
(1) Primary Constituent Element 1: Tract size and habitat
structure. A longleaf pine-dominated forest maintained by frequent
fire, and primarily having the following characteristics:
(a) Open canopy (<=70 percent);
(b) Reduced woody mid-story (<10 percent cover);
(c) Abundant, diverse, native groundcover (at least 40 percent
cover); and
(d) Minimum of 5,000 ac (2,023 ha) of mostly unfragmented habitat.
(2) Primary Constituent Element 2: Refugia sites and topographic
features. Naturally burned-out or rotted-out pine stumps and their
associated root systems, in longleaf pine forests on ridges with
elevation of 150 ft (46 m) or greater.
(3) Primary Constituent Element 3: Soils. Deep, sandy, well-drained
soils of longleaf pine forest, characterized by:
(a) No flooding or ponding;
(b) <15 percent medium and coarse gravel fragments;
(c) >60 in (152 cm) depth to seasonal high water table;
(d) >60 in (152 cm) depth to the hardpan;
(e) Textural components equaling >30 percent sand and <35 percent
clay; and
(f) A slope <15 percent.
Special Management Considerations or Protection
When designating critical habitat, we assess whether the specific
areas within the geographical area occupied by the species at the time
of listing contain features which are essential to the conservation of
the species and which may require special management considerations or
protection.
All areas proposed as critical habitat would require some level of
management to address the current and future threats to the black
pinesnake and to maintain the PCEs. Special management of the upland
longleaf pine forest would be needed to ensure an open canopy, reduced
mid-story, and abundant herbaceous ground cover (PCE
[[Page 12852]]
1); underground refugia for snakes to occupy (PCE 2); and relatively
unfragmented tracts of pine forests (PCE 1).
A detailed discussion of activities affecting the black pinesnake
and its habitat can be found in the proposed listing rule published in
the Federal Register on October 7, 2014 (79 FR 60406). The features
essential to the conservation of this subspecies may require special
management considerations or protection to reduce threats posed by:
Land use conversion, primarily urban development and conversion to
agriculture and pine plantations; timber management practices,
including clear-cutting, stump removal, or other ground-disturbing
activities; fire suppression and low fire frequencies; random effects
of drought or floods; encroachment of invasive species; fragmentation
from new roads or development; road mortality; and creation of utility
pipelines and powerlines.
Management activities that could ameliorate these threats include
(but are not limited to): Maintaining critical habitat areas as open
pine habitat (preferably longleaf pine); conducting forestry management
using frequent prescribed burning (1 to 3 years) with seasonal
variability, avoiding intensive site preparation that would disturb or
destroy pine stumps, avoiding the practice of bedding when planting
trees, and reducing planting densities to create or maintain an open
canopied forest with abundant herbaceous ground cover; maintaining
forest underground structure such as gopher tortoise burrows, small
mammal burrows, and stump holes; and retaining large tracts of pine
forest unfragmented by protecting sites from development and new road
construction. More information on the special management considerations
for each critical habitat unit is provided in the individual unit
descriptions below.
Criteria Used To Identify Critical Habitat
As required by section 4(b)(2) of the Act, we use the best
scientific data available to designate critical habitat. In accordance
with the Act and our implementing regulations at 50 CFR 424.12(b) we
review available information pertaining to the habitat requirements of
the species and identify occupied areas at the time of listing that
contain the features essential to the conservation of the species. If
after identifying currently occupied areas, a determination is made
that those areas are inadequate to ensure conservation of the species,
in accordance with the Act and our implementing regulations at 50 CFR
424.12(e) we then consider whether designating additional areas--
outside those currently occupied--are essential for the conservation of
the species. Here, as discussed below, we are not currently proposing
to designate any areas outside the geographical area occupied by the
black pinesnake because we have determined that occupied areas are
sufficient for the conservation of the subspecies.
We began our determination of which areas to designate as critical
habitat for the black pinesnake with an assessment of the critical
life-history components of the subspecies, as they relate to habitat.
We reviewed the available information pertaining to historical and
current distributions, life histories, and habitat requirements of this
subspecies. We focused on the identification of large tracts of
remaining unfragmented open pine habitat in our analysis because they
are requisite sites for population survival and conservation and their
disappearance in the environment is one of the primary reasons that the
black pinesnake is declining. Our sources included surveys, unpublished
reports, and peer-reviewed scientific literature prepared by the
Alabama Department of Conservation and Natural Resources; Alabama
Natural Heritage Program; Mississippi Department of Wildlife,
Fisheries, and Parks Natural Heritage Program; and black pinesnake
researchers. Other sources are Service data and Geographic Information
System (GIS) data (such as species occurrence data, elevation contours,
soils, transportation, urban areas, National Wetland Inventory, 2011
National Land Cover Database, aerial imagery, ownership maps, and U.S.
Geological Survey (USGS) Terrestrial Ecosystems data).
For estimation of activity ranges of black pinesnakes, we utilized
the process of establishing species occurrence areas (SOAs), which the
New Jersey Department of Environmental Protection (NJDEP) uses for
northern pinesnakes. These areas are derived by placing circular
buffers around documented locations, in order to approximate typical
activity ranges (NJDFW 2009, p. 17). There are unproven assumptions
that underlie this method, such as that pinesnakes have circular
activity ranges, and that the occurrence location represents the center
of that individual's range; however, given the lack of representative
telemetry data for many areas, this is a suitable approach to estimate
activity ranges. We placed circular buffers around recent black
pinesnake location points (post-1990) from the sources listed above,
with a radius equaling the maximum known movement distance (1.3 miles
(2.1 km)) to approximate the SOA of each snake (3,400 ac (1,376 ha)).
The 1990 date was used as it coincides with dates chosen by black
pinesnake researchers who conducted habitat assessments at what were
considered recently and historically occupied locations (Duran and
Givens 2001, pp. 5-9). By utilizing GIS, we looked for areas of overlap
between activity ranges, and calculated that the total area covered by
two partially overlapping SOA estimates (5,000 ac (2,023 ha)) would be
considered a minimum population reserve size, as long as the area was
not highly fragmented. This is not to say that two snakes are
considered a viable population, but that this area estimate should be
considered a minimum value.
To examine the possibility of an elevation threshold from the
locality data, recent black pinesnake records were obtained from the
sources listed above. By overlapping these locality data with GIS
elevation contour data, we determined that 90 percent (329) of all
black pinesnake locations occurred in areas >=200 ft (61 m) elevation,
and 96 percent of these locations (349) were in areas >=150 ft (46 m)
elevation.
Soils determined to be suitable habitat for the gopher tortoise
were used as a surrogate to determine suitable soils for the black
pinesnake, as these both occupy deep, sandy soils of upland longleaf
pine forest. A team of biologists and soil scientists from the Service
and the Natural Resources Conservation Service, with input from staff
from the U.S. Forest Service, developed a model to classify soils
throughout the gopher tortoise's federally listed range (Service 2012,
pp. 1-37). These specific soil characteristics are detailed in the
Primary Constituent Elements for the Black Pinesnake section, above.
Using GIS, we located all areas where at least two black pinesnake
activity ranges overlapped, and identified those as potential
populations. Areas within and directly adjacent to these black
pinesnake activity ranges that met the soils and elevation criteria
were considered contiguous habitat and were included in potential
population boundaries. There were 11 populations identified using this
method: 6 in Mississippi and 5 in Alabama. These populations were then
assessed in regards to impacts from nearby fragmentation sources such
as major roads, wetlands and open water, incompatible land use (such as
agricultural conversion), and urban development.
[[Page 12853]]
To analyze potential impacts from roads, a transportation layer was
used with GIS, specifically examining Class 1 and 2 roads. Class 1
roads are hard surface highways including Interstate and U.S. numbered
highways, primary State routes, and all controlled access highways;
Class 2 roads include secondary State routes, primary county routes,
and other highways that connect principal cities and towns. Both of
these road classifications have a high probability of causing permanent
black pinesnake population fragmentation and were excluded. Population
boundaries were buffered at least 100 meters from all Class 1 and 2
roads. Major wetland areas and streams were avoided in determining
population boundaries, although these generally were consistent with
changes in elevation. To analyze the fragmentation effects from
incompatible land uses (including but not limited to urbanization),
recent aerial imagery and the 2011 National Land Cover Database (NLCD)
were utilized. By selecting the evergreen forest layers from NLCD, it
was possible to delineate large tracts of remaining pine forested
habitat, and concurrent analysis from the aerial imagery further
removed areas with agricultural fields, housing developments, and urban
areas.
Once all the above analyses were complete, the level of
fragmentation in each population was assessed. If fragmentation within
a population boundary limited the suitable habitat to the point where
less than 5,000 ac (2,023 ha) was available, that population was no
longer considered viable and was removed from critical habitat
consideration.
Using the above-described process, eight of the 11 populations
examined met the criteria for consideration as critical habitat: All
six of the populations in Mississippi and two of the five in Alabama.
Five of the six Mississippi populations occur at least partially on the
De Soto National Forest, the largest of which is located almost
exclusively on the Camp Shelby Special Use Permit area, and the sixth
population occurs primarily on the Marion County Wildlife Management
Area (WMA). All six populations meet the criteria of appropriate size;
contiguous, pine-dominated, forested habitat; elevation; soils; and
minimal fragmentation. The Service has determined that these sites
contain the PCEs that are essential for the conservation of the black
pinesnake, and therefore we are proposing to designate them as critical
habitat.
Both of the Alabama populations that met the criteria to be
considered critical habitat are located in Clarke County and include a
population primarily located on the Scotch WMA and a population located
at the Fred T. Stimpson WMA. Three other populations, in Washington and
Mobile Counties, each have two black pinesnake records from the last 25
years, but due to fragmentation do not meet the criteria for critical
habitat and therefore are not proposed for designation.
We have determined that the areas we are proposing for designation
as critical habitat contain the PCEs that are essential for the
conservation of the black pinesnake based on our current understanding
of the subspecies' requirements. However, as discussed in the Critical
Habitat section above, we recognize that designation of critical
habitat might not include all habitat areas that we may eventually
determine are necessary for the recovery of the subspecies and that for
this reason, a critical habitat designation does not signal that
habitat outside the designated area is unimportant or may not promote
the recovery of the subspecies.
Areas Occupied at the Time of Listing
The proposed critical habitat designation does not include all
forested areas known to have been occupied by the subspecies
historically; instead, it focuses on occupied areas within the current
range that have retained the necessary PCEs that will allow for the
maintenance and expansion of existing populations.
In summary, for areas within the geographic area occupied by the
subspecies at the time of listing, we delineated critical habitat unit
boundaries using the following criterion: Evaluate habitat suitability
of forested parcels within the geographic area occupied at the time of
listing (post 1990), and retain those segments that contain some or all
of the PCEs to support life-history functions essential for
conservation of the subspecies.
Areas Not Occupied at the Time of Listing
We are not proposing any areas outside the geographical areas
occupied by the black pinesnake at the time of listing for critical
habitat designation. The proposed units within the area occupied by the
subspecies at the time of listing are representative of the current
geographical range and include both the core population areas of black
pinesnakes, as well as remaining peripheral population areas. We
determined that there was sufficient area for the conservation of the
subspecies within the occupied areas determined above.
When determining proposed critical habitat boundaries, we made
every effort to avoid including developed areas such as lands covered
by buildings, pavement, and other structures because such lands lack
physical or biological features necessary for the black pinesnake. The
scale of the maps we prepared under the parameters for publication
within the Code of Federal Regulations may not reflect the exclusion of
such developed lands nor all lands covered under the Camp Shelby
integrated natural resources management plan (INRMP), which are
exempted from proposed critical habitat designation (see Application of
Section 4(a)(3) of the Act under Exemptions, below). Thus, any such
lands inadvertently left inside critical habitat boundaries shown on
the maps of this proposed rule have been excluded by text in the
proposed rule and are not proposed for designation as critical habitat.
Therefore, if the critical habitat is finalized as proposed, a Federal
action involving these lands would not trigger section 7 consultation
with respect to critical habitat and the requirement of no adverse
modification unless the specific action would affect the PBFs in the
adjacent critical habitat.
The proposed critical habitat designation is defined by the map or
maps, as modified by any accompanying regulatory text, presented at the
end of this document in the Proposed Regulation Promulgation section.
We include more detailed information on the boundaries of the critical
habitat designation in the preamble of this document. We will make the
coordinates or plot points or both on which each map is based available
to the public on https://www.regulations.gov at Docket No. FWS-R4-ES-
2014-0065, on our Internet site at https://www.fws.gov/mississippiES/,
and at the field office responsible for the designation (see FOR
FURTHER INFORMATION CONTACT, above).
Proposed Critical Habitat Designation
We are proposing to designate approximately 338,100 ac (136,824 ha)
in eight units, one of which is divided into two subunits, as critical
habitat for the black pinesnake. The critical habitat areas we describe
below constitute our current best assessment of areas that meet the
definition of critical habitat for the black pinesnake. The areas we
propose as critical habitat are all occupied at the time of listing and
contain all elements of the physical or biological features of the
black pinesnake to support life-history functions essential to the
conservation of the subspecies including:
[[Page 12854]]
Unfragmented tracts of pine forest of sufficient size and structure
(PCE 1); suitable underground refugia sites at appropriate elevation
(PCE 2); and deep, sandy soils (PCE 3).
The areas we propose as critical habitat are: Unit 1--Ovett; Unit
2--Piney Woods Creek; Unit 3--Cypress Creek; Unit 4A--Maxie; Unit 4B--
Maxie; Unit 5--Howison; Unit 6--Marion County WMA; Unit 7--Scotch WMA;
and Unit 8--Fred T. Stimpson WMA.
Table 1 provides the location, approximate area, and ownership of
each critical habitat unit.
Table 1--Proposed Critical Habitat Units for Black Pinesnake
[Area estimates reflect all land within critical habitat unit boundaries]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Ownership
Unit County -------------------------------------------------------------------------------- Total area
Federal State Local Private
--------------------------------------------------------------------------------------------------------------------------------------------------------
MISSISSIPPI
--------------------------------------------------------------------------------------------------------------------------------------------------------
1--Ovett........................ Jones, Wayne...... 40,637 ac (16,445 .................. .................. 6,540 ac (2,647 47,177 ac (19,092
ha). ha). ha).
2--Piney Woods Creek............ Perry, Wayne...... 17,744 ac (7,181 .................. .................. 4,645 ac (1,880 22,389 ac (9,061
ha). ha). ha).
3--Cypress Creek................ Perry, Greene, 131,045 ac (53,032 1,768 ac (715 ha). 41 ac (16 ha)..... 12,289 ac (4,973 145,143 ac (58,737
George, Forrest. ha). ha). ha).
4A--Maxie....................... Forrest, Stone.... 8,883 ac (3,595 .................. .................. 6,334 ac (2,563 15,217 ac (6,158
ha). ha). ha).
4B--Maxie....................... Forrest, Perry, 28,233 ac (11,425 .................. .................. 16,078 ac (6,507 44,311 ac (17,932
Stone. ha). ha). ha).
5--Howison...................... Stone, Harrison... 9,371 ac (3,792 .................. 640 ac (259 ha)... 2,938 ac (1,189 12,949 ac (5,240
ha). ha). ha).
6--Marion County WMA............ Marion............ .................. 5,587 ac (2,261 .................. 6,270 ac (2,537 11,857 ac (4,798
ha). ha). ha).
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ALABAMA
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7--Scotch WMA................... Clarke............ .................. .................. .................. 33,395 ac (13,514 33,395 ac (13,514
ha). ha).
--------------------------------------------------------------------------------------------------------------------------------------------------------
8--Fred T. Stimpson WMA......... Clarke............ .................. 2,547 ac (1,031 .................. 3,114 ac (1,260 5,661 ac (2,291
ha). ha). ha).
---------------------------------------------------------------------------------------------------
Total Area.................. .................. 235,915 ac (95,471 9,902 ac (4,007 681 ac (276 ha)... 91,603 ac (37,070 338,100 ac
ha). ha). ha). (136,824 ha).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Area sizing may not sum due to rounding.
We present brief descriptions of all units, and reasons why they
meet the definition of critical habitat for the black pinesnake, below.
Unit 1: Ovett--Jones and Wayne Counties, Mississippi
Unit 1 encompasses approximately 47,177 ac (19,092 ha) on Federal
and private land in Jones and Wayne Counties, Mississippi. This unit is
located between the Bogue Homo River and Thompson Creek, is
approximately 2.0 mi (3.2 km) northeast of Ovett, and is mostly within
the boundary of the Chickasawhay Ranger District of the De Soto
National Forest (DNF). It is located just east of State Highway 15,
west of Salem Road, north of the intersection of State Highway 15 and
County Road 205, and approximately 1.3 mi (2.1 km) south of the
intersection of Freedom Road and Forest Road.
The majority of this unit (40,637 ac (16,445 ha)) is on Federal
lands within the DNF, with the remainder of the unit (6,540 ac (2,647
ha)) on private land. Unit 1 contains all elements of the physical or
biological features of the black pinesnake to support life-history
functions essential to the conservation of the subspecies.
There are records of eight black pinesnakes located within Unit 1
since 1990. Many of these are located on the higher ridges within the
unit boundary, but are within close enough proximity to each other
(with contiguous habitat between) for all of them to belong to the same
breeding population. Habitat management on the section of this unit
owned by the U.S. Forest Service (86 percent) is performed under the
Revised Land and Resource Management Plan for National Forests in
Mississippi (U.S. Forest Service 2014, 207 pp.). The other 14 percent
is privately owned. This forest plan contains objectives for the
threatened gopher tortoise and endangered red-cockaded woodpecker
(Picoides borealis), both of which occur on Unit 1. These objectives
include restoring and opening up canopy conditions in areas with sandy
soils and in mature and old-growth pine forests and woodlands, with 1-
to 3-year fire intervals; however, there are no management practices
outlined in this plan that specifically target all of the habitat
requirements of the black pinesnake.
Threats to the black pinesnake and its habitat in Unit 1 that may
require special management considerations or protection of the physical
or biological features include: Fire suppression and low fire
frequencies; detrimental alterations in forestry practices that could
destroy belowground soil structures such as clear-cutting, disking, or
stump removal; land use conversion and fragmentation, primarily urban
development, new roads, and conversion to agriculture and pine
plantations; utility easements; road mortality; and encroachment of
invasive species.
[[Page 12855]]
Unit 2: Piney Woods Creek--Wayne and Perry Counties, Mississippi
Unit 2 encompasses approximately 22,389 ac (9,061 ha) on Federal
and private land located primarily in Wayne County, Mississippi, with a
small portion extending into Perry County, Mississippi. This unit is
located between Thompson Creek and Piney Woods Creek, is approximately
4.0 mi (6.4 km) west of Clara, and is mostly within the boundary of the
Chickasawhay Ranger District of the DNF. It is located 2.3 mi (3.7 km)
north of the intersection of Camp Eight Road and Will Best Road, and
0.4 mi (0.6 km) southeast of the intersection of Clara-Strengthford
Road and Clara-Strengthford Reservoir Road.
The majority of this unit (17,744 ac (7,181 ha)) is on Federal
lands within the DNF, with the remainder of the Unit (4,645 ac (1,880
ha)) on private land. Unit 2 contains all elements of the physical or
biological features of the black pinesnake to support life-history
functions essential to the conservation of the subspecies.
There are records of five black pinesnakes located within Unit 2
since 1990. Many of these are located on the higher ridges within the
unit boundary, but are within close enough proximity to each other
(with contiguous habitat between) for all of them to belong to the same
breeding population. Habitat management on the section of this unit
owned by the U.S. Forest Service (79 percent) is performed under the
Revised Land and Resource Management Plan for National Forests in
Mississippi (U.S. Forest Service 2014, 207 pp.) (see discussion under
Unit 1, above).
Threats to the black pinesnake and its habitat in Unit 2 that may
require special management considerations or protection of the physical
or biological features include: Fire suppression and low fire
frequencies; detrimental alterations in forestry practices that could
destroy belowground soil structures such as clear-cutting, disking, or
stump removal; land use conversion and fragmentation, primarily urban
development, new roads, and conversion to agriculture and pine
plantations; gas, water, electrical power, and sewer easements; road
mortality; and encroachment of invasive species.
Unit 3: Cypress Creek--Forrest, Perry, George, and Greene Counties,
Mississippi
Unit 3 is the largest of all the units, encompassing approximately
145,143 ac (58,737 ha) on Federal, State, local, and private land in
Forrest, Perry, George, and Greene Counties, Mississippi. This unit is
located north of Black Creek (Cypress Creek runs into part of the unit,
but is not a barrier to gene flow), and is approximately 3.0 mi (4.8
km) east of McLaurin, 1.8 mi (2.9 km) south of New Augusta, and 4.6 mi
(7.4 km) northwest of Benndale. Unit 3 is mostly within the
installation boundary of Camp Shelby on the De Soto Ranger District of
the DNF, and is bordered by State Highways 26 and 57 and U.S. Highways
49 and 98.
The majority of this unit (131,045 ac (53,032 ha)) is on Federal
lands, with another 1,768 ac (715 ha) on State lands; 41 ac (16 ha) on
local, county-owned lands; and the remainder (12,289 ac (4,973 ha)) on
private land. This unit contains 5,735 ac (2,321 ha) of State- and
Department of Defense (DoD)-owned lands that are covered under the Camp
Shelby INRMP, which are exempted from proposed critical habitat
designation (see Application of Section 4(a)(3) of the Act under
Exemptions, below). Unit 3 contains all elements of the physical or
biological features of the black pinesnake to support life-history
functions essential to the conservation of the subspecies.
There are over 100 records of black pinesnakes located within Unit
3 since 2004, as compiled by The Nature Conservancy's Camp Shelby Field
Office. Many of these are located on the higher ridges within the unit
boundary, but are within close enough proximity to each other (with
contiguous habitat between) for all of them to belong to the same
breeding population. Habitat management on the section of this unit
owned by the U.S. Forest Service is performed under the Revised Land
and Resource Management Plan for National Forests in Mississippi (U.S.
Forest Service 2014, 207 pp.). In addition to containing objectives for
the threatened gopher tortoise and endangered red-cockaded woodpecker,
both of which occur on Unit 3 (see discussion under Unit 1, above), it
also includes objectives for the endangered dusky gopher frog (Rana
sevosa), which has three critical habitat units totaling 961.8 ac
(389.2 ha), also located within Unit 3. Forest plan objectives for the
dusky gopher frog include upland forest management to restore and
improve open-canopied conditions compatible with black pinesnake
habitat requirements.
Threats to the black pinesnake and its habitat in Unit 3 that may
require special management considerations or protection of the physical
or biological features include: Fire suppression and low fire
frequencies; detrimental alterations in forestry practices that could
destroy belowground soil structures such as clear-cutting, disking, or
stump removal; land use conversion and fragmentation, primarily urban
development, new roads, and conversion to agriculture and pine
plantations; gas, water, electrical power, and sewer easements; road
mortality; and encroachment of invasive species.
Unit 4: Maxie--Forrest, Perry, and Stone Counties, Mississippi
Unit 4 encompasses a total of approximately 59,527 ac (24,090 ha)
on Federal and private land in Forrest, Perry, and Stone Counties,
Mississippi. Located south of Black Creek and 3.0 mi (4.8 km) north of
Wiggins, this unit is bisected into two subunits (4A and 4B) by U.S.
Highway 49. Both subunits are buffered from U.S. Highway 49 by at least
328 ft (100 m). The close proximity of black pinesnake records with
adjacent suitable habitat would have made Unit 4 a single unit
following the criteria for designation of critical habitat, if not for
the presence of U.S. Highway 49, which is a significant source of
fragmentation and is potentially restricting gene flow between the two
subunits.
Subunit 4A is located between Double Branch and U.S. Highway 49 in
Forrest and Stone Counties, Mississippi. It is 0.3 mi (4.8 km)
northwest of Bond and 0.5 mi (0.8 km) southwest of Maxie, and is
located mostly within the boundary of the De Soto Ranger District of
the DNF. Most of this subunit (8,883 ac (3,595 ha)) is on Federal lands
within the DNF, with the remainder of the subunit (6,334 ac (2,563 ha))
on private land. There are records of two black pinesnakes located
within subunit 4A since 1990. These are located on the eastern edge of
the subunit, but have contiguous habitat with the rest of the area.
Subunit 4B is located between Black Creek and U.S. Highway 49 in
Forrest, Perry, and Stone Counties, Mississippi. It is directly
adjacent to Maxie on the western border, and is located mostly within
the boundary of the De Soto Ranger District of the DNF. Most of this
subunit (28,233 ac (11,425 ha)) is on Federal lands within the DNF,
with the remainder of the subunit (16,078 ac (6,507 ha)) on private
land. There are records of four black pinesnakes located within subunit
4B since 1990. These are located on the higher ridges of the subunit,
but have contiguous habitat with the rest of the area.
Both subunits of Unit 4 are within the geographic area of the
subspecies occupied at the time of listing. They contain all elements
of the physical or biological features of the black pinesnake to
support life-history functions essential to the conservation
[[Page 12856]]
of the subspecies. Habitat management on the section of these subunits
owned by the U.S. Forest Service (86 percent) is performed under the
Revised Land and Resource Management Plan for National Forests in
Mississippi (U.S. Forest Service 2014, 207 pp.). This forest plan
contains objectives for the threatened gopher tortoise, which occurs on
both subunits of Unit 4. These objectives include restoring and opening
up canopy conditions in areas with sandy soils with 1- to 3-year fire
intervals; however, there are no management practices outlined in this
plan that specifically target the habitat requirements of the black
pinesnake. Subunit 4B also contains two units designated as critical
habitat for the endangered dusky gopher frog, totaling 598.6 ac (242.2
ha) (see discussion of Unit 3, above, for more about forest plan
objectives for the gopher frog).
Threats to the black pinesnake and its habitat in Unit 4 that may
require special management considerations or protection of the physical
or biological features include: Fire suppression and low fire
frequencies; detrimental alterations in forestry practices that could
destroy belowground soil structures such as clear-cutting, disking, or
stump removal; land use conversion and fragmentation, primarily urban
development, new roads, and conversion to agriculture and pine
plantations; gas, water, electrical power, and sewer easements; road
mortality; and encroachment of invasive species.
Unit 5: Howison--Stone and Harrison Counties, Mississippi
Unit 5 encompasses approximately 12,949 ac (5,240 ha) on Federal,
local, and private land in Harrison and Stone Counties, Mississippi.
This unit is located between Tuxachanie Creek and U.S. Highway 49,
approximately 0.4 mi (0.6 km) east of Howison and 1.3 mi (2 km)
southeast of McHenry, and this unit is mostly within the boundary of
the De Soto Ranger District of the DNF. The unit is bordered on the
northern edge by E. McHenry Road and on the western edge by U.S.
Highway 49 (buffered from the highway by at least 328 ft (100 m)).
The majority of this unit (9,371 ac (3,792 ha)) is on Federal lands
within the DNF, with the remainder of the unit on local (640 ac (259
ha)) and private (2,938 ac (1,189 ha)) lands. Unit 5 contains all
elements of the physical or biological features of the black pinesnake
to support life-history functions essential to the conservation of the
subspecies.
There are records of seven black pinesnakes located within Unit 5
since 1990. Many of these are located on the higher ridges within the
unit boundary, but are within close enough proximity of each other
(with contiguous habitat between) for all of them to belong to the same
breeding population. Habitat management on the section of this unit
owned by the U.S. Forest Service is performed under the Revised Land
and Resource Management Plan for National Forests in Mississippi (U.S.
Forest Service 2014, 207 pp.). This forest plan contains objectives for
the threatened gopher tortoise, which occurs on Unit 5 (see discussion
for Unit 4, above).
Threats to the black pinesnake and its habitat in Unit 5 that may
require special management considerations or protection of the physical
or biological features include: Fire suppression and low fire
frequencies; detrimental alterations in forestry practices that could
destroy belowground soil structures such as clear-cutting, disking, or
stump removal; land use conversion and fragmentation, primarily urban
development, new roads, and conversion to agriculture and pine
plantations; gas, water, electrical power, and sewer easements; road
mortality; and encroachment of invasive species.
Unit 6: Marion County WMA--Marion County, Mississippi
Unit 6 encompasses approximately 11,857 ac (4,798 ha) on State and
private land in Marion County, Mississippi. This unit is located
between the Upper Little Creek and Lower Little Creek, 7.0 mi (11 km)
southeast of Columbia. It is located 0.8 mi (1.3 km) north of State
Highway 13, and 2.6 mi (4.2 km) south of U.S. Highway 98. Approximately
half of Unit 6 is within the Marion County WMA.
The unit is divided between State lands (5,587 ac (2,261 ha)) and
private lands (6,270 ac (2,537 ha)). Unit 6 contains all elements of
the physical or biological features of the black pinesnake to support
life-history functions essential to the conservation of the subspecies.
There are records of two black pinesnakes located within Unit 6
since 1990. These are both located on the WMA, although there is
contiguous suitable habitat across the remainder of the unit.
Regulations on the WMA include prohibitions of wildlife harassment;
however, there are no habitat management activities occurring at the
WMA that specifically target the habitat requirements of the black
pinesnake.
Threats to the black pinesnake and its habitat in Unit 6 that may
require special management considerations or protection of the physical
or biological features include: Fire suppression and low fire
frequencies; detrimental alterations in forestry practices that could
destroy belowground soil structures such as clear-cutting, disking, or
stump removal; land use conversion and fragmentation, primarily urban
development, new roads, and conversion to agriculture and pine
plantations; gas, water, electrical power, and sewer easements; road
mortality; and encroachment of invasive species.
Unit 7: Scotch WMA--Clarke County, Alabama
Unit 7 encompasses approximately 33,395 ac (13,514 ha) of private
land in Clarke County, Alabama. This unit is bordered by Salitpa Creek
to the south, Tallahatta Creek to the north, and Harris Creek to the
west. It is located approximately 2.7 mi (4.3 km) southeast of
Campbell, and approximately half of the unit is on the Scotch WMA. Unit
7 is located 1.1 mi (1.8 km) north of the intersection of Old Mill Pond
Road and Reedy Branch Road.
This unit contains all elements of the physical or biological
features of the black pinesnake to support life-history functions
essential to the conservation of the subspecies.
There are records of four black pinesnakes located within Unit 7
since 1990. Many of these are located on the higher ridges within the
unit boundary, but are within close enough proximity to each other
(with contiguous habitat between) for all of them to belong to the same
breeding population. Most of this unit is managed by Scotch Land
Management, LLC; however, there are no management practices on this
unit that specifically target the habitat requirements of the black
pinesnake.
Threats to the black pinesnake and its habitat in Unit 7 that may
require special management considerations or protection of the physical
or biological features include: Fire suppression and low fire
frequencies; detrimental alterations in forestry practices that could
destroy belowground soil structures such as clear-cutting, disking, or
stump removal; land use conversion and fragmentation, primarily urban
development, new roads, and conversion to agriculture and pine
plantations; gas, water, electrical power, and sewer easements; road
mortality; and encroachment of invasive species.
Unit 8: Fred T. Stimpson WMA--Clarke County, Alabama
Unit 8 encompasses approximately 5,661 ac (2,291 ha) on State and
private land in Clarke County, Alabama. This unit is located between
Sand Hill Creek and the Tombigbee River, is approximately 2.5 mi (4 km)
north of
[[Page 12857]]
Carlton, and is 1.0 mi (1.6 km) south of the intersection of County
Road 15 and Christian Vall Road. The southern half of this unit is on
the Fred T. Stimpson WMA.
Approximately half of the unit (2,547 ac (1,031 ha)) is on State
lands, with the remainder of the unit (3,114 ac (1,260 ha)) on private
land. Unit 8 contains all elements of the physical or biological
features of the black pinesnake to support life-history functions
essential to the conservation of the subspecies.
There are records of two black pinesnakes located within Unit 8
since 1990. These are both located on the WMA, although there is
contiguous suitable habitat across the remainder of the unit. There are
no habitat management practices outlined at the site that specifically
target the habitat requirements of the black pinesnake.
Threats to the black pinesnake and its habitat in Unit 8 that may
require special management considerations or protection of the physical
or biological features include: Fire suppression and low fire
frequencies; detrimental alterations in forestry practices that could
destroy belowground soil structures such as clear-cutting, disking, or
stump removal; land use conversion and fragmentation, primarily urban
development, new roads, and conversion to agriculture and pine
plantations; gas, water, electrical power, and sewer easements; road
mortality; and encroachment of invasive species.
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that any action they fund, authorize, or carry out
is not likely to jeopardize the continued existence of any endangered
species or threatened species or result in the destruction or adverse
modification of designated critical habitat of such species. In
addition, section 7(a)(4) of the Act requires Federal agencies to
confer with the Service on any agency action that is likely to
jeopardize the continued existence of any species proposed to be listed
under the Act or result in the destruction or adverse modification of
proposed critical habitat.
Decisions by the 5th and 9th Circuit Courts of Appeals have
invalidated our regulatory definition of ``destruction or adverse
modification'' (50 CFR 402.02) (see Gifford Pinchot Task Force v. U.S.
Fish and Wildlife Service, 378 F. 3d 1059 (9th Cir. 2004) and Sierra
Club v. U.S. Fish and Wildlife Service, 245 F.3d 434 (5th Cir. 2001)),
and we do not rely on this regulatory definition when analyzing whether
an action is likely to destroy or adversely modify critical habitat.
Under the statutory provisions of the Act, we determine destruction or
adverse modification on the basis of whether, with implementation of
the proposed Federal action, the affected critical habitat would
continue to serve its intended conservation role for the species.
If a Federal action may affect a listed species or its critical
habitat, the responsible Federal agency (action agency) must enter into
consultation with us. Examples of actions that are subject to the
section 7 consultation process are actions on State, tribal, local, or
private lands that require a Federal permit (such as a permit from the
U.S. Army Corps of Engineers under section 404 of the Clean Water Act
(33 U.S.C. 1251 et seq.) or a permit from the Service under section 10
of the Act) or that involve some other Federal action (such as funding
from the Federal Highway Administration, Federal Aviation
Administration, or the Federal Emergency Management Agency). Federal
actions not affecting listed species or critical habitat, and actions
on State, tribal, local, or private lands that are not federally funded
or authorized, do not require section 7 consultation.
As a result of section 7 consultation, we document compliance with
the requirements of section 7(a)(2) through our issuance of:
(1) A concurrence letter for Federal actions that may affect, but
are not likely to adversely affect, listed species or critical habitat;
or
(2) A biological opinion for Federal actions that may affect and
are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is
likely to jeopardize the continued existence of a listed species and/or
destroy or adversely modify critical habitat, we provide reasonable and
prudent alternatives to the project, if any are identifiable, that
would avoid the likelihood of jeopardy and/or destruction or adverse
modification of critical habitat. We define ``reasonable and prudent
alternatives'' (at 50 CFR 402.02) as alternative actions identified
during consultation that:
(1) Can be implemented in a manner consistent with the intended
purpose of the action,
(2) Can be implemented consistent with the scope of the Federal
agency's legal authority and jurisdiction,
(3) Are economically and technologically feasible, and
(4) Would, in the Director's opinion, avoid the likelihood of
jeopardizing the continued existence of the listed species and/or avoid
the likelihood of destroying or adversely modifying critical habitat.
Reasonable and prudent alternatives can vary from slight project
modifications to extensive redesign or relocation of the project. Costs
associated with implementing a reasonable and prudent alternative are
similarly variable.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate
consultation on previously reviewed actions in instances where we have
listed a new species or subsequently designated critical habitat that
may be affected and the Federal agency has retained discretionary
involvement or control over the action (or the agency's discretionary
involvement or control is authorized by law). Consequently, Federal
agencies sometimes may need to request reinitiation of consultation
with us on actions for which formal consultation has been completed, if
those actions with discretionary involvement or control may affect
subsequently listed species or designated critical habitat.
Application of the ``Adverse Modification'' Standard
The key factor related to the adverse modification determination is
whether, with implementation of the proposed Federal action, the
affected critical habitat would continue to serve its intended
conservation role for the species. Activities that may destroy or
adversely modify critical habitat are those that alter the PBFs to an
extent that appreciably reduces the conservation value of critical
habitat for the black pinesnake. As discussed above, the role of
critical habitat is to support life-history needs of the species and
provide for the conservation of the species.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe, in any proposed or final regulation that designates critical
habitat, activities involving a Federal action that may destroy or
adversely modify such habitat, or that may be affected by such
designation.
Activities that may affect critical habitat, when carried out,
funded, or authorized by a Federal agency, should result in
consultation for the black pinesnake. These activities include, but are
not limited to:
(1) Forestry management actions in pine habitat that would
significantly alter the suitability of black pinesnake habitat. Such
activities could include,
[[Page 12858]]
but are not limited to: Silvicultural activites such as disking,
bedding, and clear-cutting that involve ground disturbance; conversion
to densely stocked pine plantations; and chemical applications
(pesticides or herbicides) that are either unlawful or that are not
directly aimed at hazardous fuels reduction, mid-story hardwood
control, or noxious weed control. These activities could destroy or
alter the pine forest habitats and refugia necessary for the growth and
development of black pinesnakes, and may reduce populations of the
snake's primary prey (rodents), either through direct extermination or
through loss of the forage necessary to sustain the prey base.
(2) Actions that would significantly fragment black pinesnake
populations. Such activities could include, but are not limited to:
Conversion of timber land to other uses (agricultural, urban/
residential development) and construction of new structures or roads.
These activities could lead to degradation or elimination of forest
habitat, limit or prevent breeding opportunities between black
pinesnakes, limit access to familiar refugia or nesting sites within
individual home ranges, and increase the frequency of road mortality
from road crossings.
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.
Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i))
provides that: ``The Secretary shall not designate as critical habitat
any lands or other geographic areas owned or controlled by the
Department of Defense, or designated for its use, that are subject to
an Integrated Natural Resources Management Plan prepared under section
101 of the Sikes Act (16 U.S.C. 670a), if the Secretary determines in
writing that such plan provides a benefit to the species for which
critical habitat is proposed for designation.''
We consult with the military on the development and implementation
of INRMPs for installations with listed species. We analyzed one INRMP
developed by military installations located within the range of the
proposed critical habitat designation for the black pinesnake to
determine if it met the criteria for exemption from critical habitat
under section 4(a)(3) of the Act.
Approved INRMP
Camp Shelby Joint Forces Training Center (Camp Shelby), 5,735 ac (2,321
ha)
Camp Shelby is located in Forrest, George, and Perry Counties, near
the town of Hattiesburg, Mississippi, and contains habitat with
features essential to the conservation of the black pinesnake. The
primary mission of Camp Shelby is to train U.S. Army soldiers (National
Guard and Reserve) for combat and combat-related missions. Training
activities at Camp Shelby primarily include troop bivouacking, wheeled
vehicle maneuvers, artillery firing exercises, and tank training
maneuvers.
Camp Shelby is composed of property belonging in four different
categories: Department of Defense (DoD), State, United States Forest
Service (USFS), and private land. The main part of Camp Shelby's
training area belongs to the USFS and is operated under a special use
permit from the USFS granted in 2007 for 20 years (see discussion under
Exclusions Based on National Security Impacts, below). The DoD and
State lands are managed by the Mississippi Army National Guard (MSARNG)
in support of the military mission, and the Camp Shelby INRMP addresses
integrative management on these lands only (MSARNG 2014, p. 13). These
DoD and State lands, included in the INRMP, with habitat features
essential to the conservation of the black pinesnake, total
approximately 5,558 ac (2,249 ha). We have examined the INRMP and
determined that it does outline conservation measures for the black
pinesnake, as well as management plans for important upland habitats at
Camp Shelby. Conservation measures outlined in the INRMP for the black
pine snake at Camp Shelby include: Research on life history, habitat
requirements, and habitat use; monitoring; prescribed burning and
longleaf pine restoration programs, including increasing the frequency
of growing season burns, reducing canopy closure and basal area, and
restoring the natural fire regime; protecting and maintaining downed
deadwood and pine stumps (when not identified as a safety hazard); and
implementation of education programs for users of Camp Shelby (geared
towards minimizing the negative impacts of vehicular mortality on the
black pine snake and other species) (MSARNG 2014, pp. 92-94). The INRMP
will continue to be reviewed annually to monitor the effectiveness of
the plan, and be reviewed every 5 years to develop revisions and
updates as necessary.
Based on the above considerations, and in accordance with section
4(a)(3)(B)(i) of the Act, we have determined that the identified lands
are subject to the Camp Shelby INRMP and that conservation efforts
identified in the INRMP will provide a benefit to the black pinesnake.
Therefore, DoD and State lands within this installation, which are
covered under the INRMP, are exempt from critical habitat designation
under section 4(a)(3) of the Act. We are not including approximately
5,558 ac (2,249 ha) of habitat in this proposed critical habitat
designation because of this exemption.
Exclusions
Section 4(b)(2) of the Act states that the Secretary shall
designate and make revisions to critical habitat on the basis of the
best available scientific data after taking into consideration the
economic impact, national security impact, and any other relevant
impact of specifying any particular area as critical habitat. The
Secretary may exclude an area from critical habitat if 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
[[Page 12859]]
which factor(s) to use and how much weight to give to any factor.
Under section 4(b)(2) of the Act, we may exclude an area from
designated critical habitat based on economic impacts, impacts on
national security, or any other relevant impacts. In considering
whether to exclude a particular area from the designation, we identify
the benefits of including the area in the designation, identify the
benefits of excluding the area from the designation, and evaluate
whether the benefits of exclusion outweigh the benefits of inclusion.
If the analysis indicates that the benefits of exclusion outweigh the
benefits of inclusion, the Secretary may exercise her discretion to
exclude the area only if such exclusion would not result in the
extinction of the species.
When considering 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. In the case of
the black pinesnake, the benefits of critical habitat include public
awareness of the presence of the black pinesnake and the importance of
habitat protection, and, where a Federal nexus exists, increased
habitat protection for the black pinesnake due to protection from
adverse modification or destruction of critical habitat. In practice,
situations with a Federal nexus exist primarily on Federal lands or for
projects undertaken by Federal agencies.
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 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 we receive during the public comment
period, we will evaluate whether certain lands in the proposed critical
habitat in a portion of Unit 3 are appropriate for exclusion from the
final designation under section 4(b)(2) of the Act (see discussion
under Exclusions Based on National Security Impacts, below). If the
analysis indicates that the benefits of excluding lands from the final
designation outweigh the benefits of designating those lands as
critical habitat, then the Secretary may exercise her discretion to
exclude the lands from the final designation.
The final decision on whether to exclude any areas will be based on
the best scientific data available at the time of the final
designation, including information obtained during the comment period.
Exclusion Based on Economic Impacts
Section 4(b)(2) of the Act and its implementing regulations require
that we consider the economic impact that may result from a designation
of critical habitat. To assess the probable economic impacts of a
designation, we must first evaluate specific land uses or activities
and projects that may occur in the area of the critical habitat. We
then must evaluate the impacts that a specific critical habitat
designation may have on restricting or modifying specific land uses or
activities for the benefit of the species and its habitat within the
areas proposed. We then identify which conservation efforts may be the
result of the species being listed under the Act versus those
attributed solely to the designation of critical habitat for this
particular species. The probable economic impact of a proposed critical
habitat designation is analyzed by comparing scenarios both ``with
critical habitat'' and ``without critical habitat.'' The ``without
critical habitat'' scenario represents the baseline for the analysis,
which includes the existing regulatory and socio-economic burden
imposed on landowners, managers, or other resource users potentially
affected by the designation of critical habitat (e.g., under the
Federal listing as well as other Federal, State, and local
regulations). The baseline, therefore, represents the costs of all
efforts attributable to the listing of the species under the Act (i.e.,
conservation of the species and its habitat incurred regardless of
whether critical habitat is designated). The ``with critical habitat''
scenario describes the incremental impacts associated specifically with
the designation of critical habitat for the species. The incremental
conservation efforts and associated impacts would not be expected
without the designation of critical habitat for the species. In other
words, the incremental costs are those attributable solely to the
designation of critical habitat, above and beyond the baseline costs.
These are the costs we use when evaluating the benefits of inclusion
and exclusion of particular areas from the final designation of
critical habitat should we choose to conduct an optional section
4(b)(2) exclusion analysis.
For this designation, we developed an incremental effects
memorandum (IEM) considering the probable incremental economic impacts
that may result from this proposed designation of critical habitat. The
information contained in our IEM was then used to develop a screening
analysis of the probable effects of the designation of critical habitat
for the black pinesnake (IEc 2014). The screening analysis focuses on
the key factors that are likely to result in incremental economic
impacts. The purpose of the screening analysis is to filter out the
geographic areas in which the critical habitat designation is unlikely
to result in probable incremental economic impacts. In particular, the
screening analysis considers baseline costs (i.e., absent critical
habitat designation) and includes probable economic impacts where land
and water use may be subject to conservation plans, land management
plans, best management practices, or regulations that protect the
habitat area as a result of the Federal listing status of the
subspecies. The screening analysis filters out particular areas of
critical habitat that are already subject to such protections and are
therefore, unlikely to incur incremental economic impacts. Ultimately,
the screening analysis allows us to focus our analysis on evaluating
the specific areas or sectors that may incur probable incremental
economic impacts as a result of the designation. The screening analysis
also assesses whether units are unoccupied by the subspecies and may
require additional management or conservation efforts as a result of
the critical habitat designation for the subspecies which may incur
incremental economic impacts. This screening analysis, combined with
the information contained in our IEM, constitutes our draft economic
analysis (DEA) of the proposed critical habitat designation for the
black pinesnake and is summarized in the narrative below.
Executive Orders (E.O.s) 12866 and 13563 direct Federal agencies to
assess the costs and benefits of available regulatory alternatives in
quantitative (to the extent feasible) and qualitative terms. Consistent
with the E.O. regulatory analysis requirements, our effects analysis
under the Act may take into consideration impacts to both directly and
indirectly impacted entities, where practicable and reasonable. We
assess, to the extent practicable, the probable impacts, if sufficient
data are available, to both directly and indirectly impacted entities.
As part of our screening analysis, we considered the types of economic
activities that are likely to occur within the areas likely affected by
the critical habitat designation, if adopted as proposed. In our
evaluation
[[Page 12860]]
of the probable incremental economic impacts that may result from the
proposed designation of critical habitat for the black pinesnake, first
we identified, in the IEM dated May 2, 2014, probable incremental
economic impacts associated with the following categories of
activities: (1) Federal lands management (U.S. Forest Service); (2)
forest management; (3) agriculture; (4) development; (5) silviculture/
timber; (6) transportation activities; and (7) utilities. We considered
each industry or category individually. Additionally, we considered
whether the activities have any Federal involvement. Critical habitat
designation would not affect activities that do not have any Federal
involvement; designation of critical habitat only affects activities
conducted, funded, permitted, or authorized by Federal agencies. In
areas where the black pinesnake is present, if we finalize the listing
of the subspecies, Federal agencies would be required to consult with
the Service under section 7 of the Act on activities they fund, permit,
or implement that may affect the subspecies. If we finalize this
proposed critical habitat designation, consultations to avoid the
destruction or adverse modification of critical habitat would be
incorporated into that consultation process. Therefore,
disproportionate impacts to any geographic area or sector would not be
likely as a result of this critical habitat designation.
In our IEM, we attempted to clarify the distinction between the
effects that would result from the subspecies being listed and those
attributable to the critical habitat designation (i.e., difference
between the jeopardy and adverse modification standards) for the black
pinesnake's critical habitat. Because we are proposing the designation
of critical habitat for black pinesnake before finalizing (if
appropriate) the subspecies' listing, it has been our experience that
it is more difficult to discern which conservation efforts are
attributable to the species being listed and those which will result
solely from the designation of critical habitat. However, the following
specific circumstances in this case help to inform our evaluation: (1)
The essential PBFs identified for critical habitat are the same
features essential for the life requisites of the subspecies, and (2)
any actions that would result in sufficient harm or harassment to
constitute jeopardy to the black pinesnake would also likely adversely
affect the essential physical and biological features of critical
habitat. The IEM outlines our rationale concerning this limited
distinction between baseline conservation efforts and incremental
impacts of the designation of critical habitat for this subspecies.
This evaluation of the incremental effects has been used as the basis
to evaluate the probable incremental economic impacts of this proposed
designation of critical habitat.
The proposed critical habitat designation for the black pinesnake
consists of eight units, one of which is divided into two subunits,
encompassing approximately 338,100 ac (136,824 ha) in Mississippi and
Alabama. Included lands are under Federal, State, local, and private
ownership, and all are within the area occupied by the black pinesnake
at the time of listing. Federal land is predominant in Units 1 through
5. In these units, Federal lands make up from 58 to 90 percent of the
acreage, which accounts for approximately 70 percent of the total
proposed critical habitat acreage. Privately owned land is present in
all eight units and ranges from 8 percent to a high of 100 percent in
one unit. Private lands account for approximately 27 percent of the
total proposed critical habitat acreage. Approximately 4,647 ac (1,880
ha) of the proposed designation in one unit have been identified for
potential exclusion under section 4(b)(2) of the Act due to a national
security concern (see Exclusions Based on National Security Impacts,
below).
All lands in the proposed critical habitat designation for the
black pinesnake are currently occupied by the subspecies. In these
areas any actions that may affect the subspecies or its habitat would
also affect designated critical habitat, and it is unlikely that any
additional conservation efforts would be recommended to address the
adverse modification standard over and above those recommended as
necessary to avoid jeopardizing the continued existence of the black
pinesnake. Therefore, only administrative costs are expected in the
proposed critical habitat designation. While this additional analysis
will require time and resources by both the Federal action agency and
the Service, it is believed that, in most circumstances, these costs
would predominantly be administrative in nature and would not be
significant.
The entities most likely to incur incremental costs are parties to
section 7 consultations, including Federal action agencies and, in some
cases, third parties, most frequently State agencies or municipalities.
Activities we expect will be subject to consultations that may involve
private entities as third parties are residential and commercial
development that may occur on private lands; however, cost to private
entities within these sectors is expected to be minor as most of the
proposed critical habitat is in Federal ownership (70 percent) and only
27 percent of the lands are privately owned. According to a review of
consultation records, the additional administrative cost of addressing
adverse modification during the section 7 consultation process ranges
from approximately $410 to $9,000 per consultation. Based on the
project activity identified by relevant action agencies and comparison
to the consultation history for species that co-occur or share habitat
with the black pinesnake, the number of future formal consultations is
likely to be five or fewer in the year immediately following the final
designation. In addition, up to 60 informal consultations and five
technical assists could occur annually following the designation. Thus,
the incremental administrative burden resulting from the designation is
likely to be less than $190,000 in this first year, the year with the
highest anticipated costs; therefore, the costs would not be
significant.
In summary, the probable incremental economic impacts of the black
pinesnake critical habitat designation are expected to be limited to
additional administrative efforts as well as minor costs of
conservation efforts resulting from a small number of future section 7
consultations. This finding is based on the following factors: (1) All
proposed critical habitat is occupied by the subspecies; thus, the
presence of the subspecies, once it is listed, would result in
significant baseline protection under the Act; (2) project
modifications requested by the Service to avoid jeopardy to the
subspecies would be the same as those likely to avoid adverse
modification of critical habitat; (3) critical habitat would be
unlikely to increase the number of consultations as a result of the
awareness by Federal agencies of the need to consult if the subspecies
is listed, as well as the past involvement of key action agencies in
consultations for co-occurring species; (4) the proposed designation
also receives baseline protection from the presence of two federally-
listed species (gopher tortoise and red-cockaded woodpecker) that have
habitat needs similar to those of the pinesnake; and (5) the proposed
designation also receives baseline protection from overlap with
designated critical habitat for the dusky gopher frog.
As we stated earlier, we are soliciting data and comments from the
public on the DEA, as well as all aspects of this proposed rule. We may
revise the
[[Page 12861]]
proposed rule or supporting documents to incorporate or address
information we receive during the public comment period. In particular,
we may exclude an area from critical habitat if we determine that the
benefits of excluding the area outweigh the benefits of including the
area, provided that the exclusion will not result in the extinction of
the species.
Exclusions Based on National Security Impacts
Under section 4(b)(2) of the Act, we consider whether there are
lands where a national security impact might exist. This portion of the
Act allows the Secretary to exercise her discretion to exclude areas
from critical habitat for reasons of national security if she
determines the benefits of such exclusion exceed the benefits of
designating the area as critical habitat. However, this exclusion
cannot occur if it will result in the extinction of the species.
Camp Shelby Joint Forces Training Center Impact Area
After considering the Camp Shelby Joint Forces Training Center
Impact Area occupying a portion (4,647 ac (1,880 ha)) of Unit 3 in
Perry County, Mississippi, under section 4(b)(2) of the Act, we are
considering excluding it from the critical habitat designation for the
black pinesnake.
However, we specifically solicit comments on the inclusion or
exclusion of this area. In the paragraphs below, we provide a detailed
analysis of our consideration to exclude this land under section
4(b)(2) of the Act.
The Impact Area of Camp Shelby Joint Forces Training Center (Camp
Shelby) is a 4,647-ac (1,880-ha) area operated by the MSARNG for
training and maneuver exercises in an area of the De Soto National
Forest within Unit 3 located in Perry County, Mississippi. The MSARNG
utilizes this area under a special use permit from the U.S. Forest
Service, who is the primary landowner and manager within the
installation boundary. The Impact Area, which is located in the center
of Camp Shelby and in the northern portion of Unit 3, has been utilized
for artillery training for decades. As a result, access of any kind is
prohibited in this impact area due to the high risk of encountering
unexploded ordnance. None of the acreage within the Impact Area is
covered under the Camp Shelby INRMP; thus, none of this acreage was
considered for exemption under section 4(a)(3) of the Act (see Approved
INRMP under the Exemptions section, above).
Benefits of Inclusion: Camp Shelby Impact Area
We are not able to demonstrate any benefit to including this area
in the critical habitat designation for the black pinesnake. Access
into this area is prohibited for human safety. The educational benefit
associated with identifying specific areas as critical habitat as a
means to provide public with notice of areas of potential conservation
value is realized in that this area is embedded in currently proposed
critical habitat. Furthermore, because access into this area is
prohibited, there are likely no habitat-altering activities taking
place in this area at the scale that would affect the physical and
biological features essential to the conservation of this subspecies.
To the contrary, due to the nature of use of this area, this area
experiences frequent fires, a natural component of the longleaf pine
ecosystem that promotes optimal forest conditions for the black
pinesnake.
Benefits of Exclusion: Camp Shelby Impact Area
The benefits of excluding approximately 4,647 ac (1,880 ha) of U.S.
Forest Service lands that encompasses the Impact Area of Camp Shelby
(which the Mississippi Army National Guard uses for training purposes)
are significant. Foremost, as a human safety issue, access of any kind
is prohibited into this area due to the high risk of encountering
unexploded ordnance; thus, there is no opportunity to implement
management. However, as stated above, the area experiences frequent
fires due to the nature of its use, which is the preferred management
technique for maintaining optimal habitat conditions for the black
pinesnake. In addition, the black pinesnake receives secondary
conservation benefits from management of adjacent lands for the
threatened gopher tortoise. Lands within the Impact Area of Camp Shelby
are used for artillery training that provides soldiers with essential
combat skills that they use on the battlefield. We believe that
excluding these U.S. Forest Service lands from critical habitat
designation would remove the potential impact that a designation of
critical habitat could have on MSARNG and the military's ability to
maintain national security.
Benefits of Exclusion Outweigh the Benefits of Inclusion: Camp Shelby
Impact Area
Though access to the Camp Shelby Impact Area is prohibited, an
analysis of GIS and aerial imagery determined that the Impact Area
(4,647 ac (1,880 ha)) of the Camp Shelby Joint Forces Training Center
contains the physical and biological features essential to the
conservation of the black pinesnake, thereby meeting the definition of
critical habitat under the Act. This area is also contiguous with other
proposed critical habitat with known occurrences for the black
pinesnake. In making our recommendation to exclude the Camp Shelby
Impact area, we considered several factors: Prohibited access due to a
human safety issue; the apparent maintenance of physical and biological
factors essential to the conservation of the subspecies from frequent
burning due to the nature of use of the area; protection from habitat
loss associated with land conversion; and potential impacts to national
security associated with a critical habitat designation. We believe
there are significant benefits to excluding these lands from critical
habitat designation and are unable to demonstrate a benefit to
including these lands in the designation. Access is prohibited into the
area; thus, there is no opportunity for surveying, monitoring, or
management. Therefore, we have preliminarily determined that the
benefits of exclusion of approximately 4,647 ac (1,880 ha) of the
Impact Area of Camp Shelby from the critical habitat designation
outweigh the benefits of including these lands.
Exclusion Will Not Result in Extinction of the Subspecies: Camp Shelby
Impact Area
The exclusion of this small portion (4,647 ac (1,880 ha)) from the
total proposed critical habitat designation in Unit 3 (145,143 ac
(58,737 ha)) will have minimal to no adverse effect on the subspecies.
Adjacent lands contain habitat for the black pinesnake and are part of
proposed designation. Maintenance of appropriate habitat for the black
pinesnake with frequent fires is likely to continue in this area due to
the use of this area for artillery training. The jeopardy standard of
section 7 of the Act and routine implementation of conservation
measures through the section 7 process on lands provide additional
assurances that the subspecies will not become extinct as a result of
this exclusion. Thus, it is our assessment that the exclusion of the
Camp Shelby Impact Area lands from the final designation of critical
habitat for the black pinesnake will not result in the extinction of
the subspecies.
Based on this analysis, under section 4(b)(2) of the Act, the
Secretary is considering exercising her discretion to exclude the Camp
Shelby Impact Area within Unit 3 from the final critical
[[Page 12862]]
habitat designation as a result of impacts to national security.
Exclusions Based on Other Relevant Impacts
Under section 4(b)(2) of the Act, we consider any other relevant
impacts, in addition to economic impacts and impacts on national
security. We consider a number of factors, including whether the
landowners have developed any HCPs or other management plans for the
area, or whether there are conservation partnerships that would be
encouraged by designation of, or exclusion from, critical habitat. In
addition, we look at any tribal issues, and consider the government-to-
government relationship of the United States with tribal entities. We
also consider any social impacts that might occur because of the
designation.
In preparing this proposal, we have determined that there are
currently no HCPs or other management plans for the black pinesnake,
and the proposed designation does not include any tribal lands or trust
resources. Therefore, we anticipate no impact on tribal lands or HCPs
from this proposed critical habitat designation. Accordingly, the
Secretary does not plan to exercise her discretion to exclude any areas
from the final designation based on other relevant impacts.
Peer Review
In accordance with our joint policy on peer review published in the
Federal Register on July 1, 1994 (59 FR 34270), we will seek the expert
opinions of at least three appropriate and independent specialists
regarding this proposed rule. The purpose of peer review is to ensure
that our critical habitat designation is based on scientifically sound
data and analyses. We will invite these peer reviewers to comment
during this public comment period.
We will consider all comments and information we receive during the
comment period on this proposed rule during our preparation of a final
determination. Accordingly, the final decision may differ from this
proposal.
Public Hearings
Section 4(b)(5) of the Act provides for one or more public hearings
on this proposal, if requested. Requests must be received within 45
days after the date of publication of this proposed rule in the Federal
Register. Such requests must be sent to the address shown in the FOR
FURTHER INFORMATION CONTACT section. We will schedule public hearings
on this proposal, if any are requested, and announce the dates, times,
and places of those hearings, as well as how to obtain reasonable
accommodations, in the Federal Register and local newspapers at least
15 days before the hearing.
Required Determinations
Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) will review all significant rules. The Office
of Information and Regulatory Affairs has determined that this rule is
not significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while
calling for improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The executive order directs agencies to consider regulatory approaches
that reduce burdens and maintain flexibility and freedom of choice for
the public where these approaches are relevant, feasible, and
consistent with regulatory objectives. E.O. 13563 emphasizes further
that regulations must be based on the best available science and that
the rulemaking process must allow for public participation and an open
exchange of ideas. We have developed this rule in a manner consistent
with these requirements.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.),
as amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to
publish a notice of rulemaking for any proposed or final rule, it must
prepare and make available for public comment a regulatory flexibility
analysis that describes the effects of the rule on small entities
(i.e., small businesses, small organizations, and small government
jurisdictions). However, no regulatory flexibility analysis is required
if the head of the agency certifies the rule will not have a
significant economic impact on a substantial number of small entities.
The SBREFA amended the RFA to require Federal agencies to provide a
certification statement of the factual basis for certifying that the
rule will not have a significant economic impact on a substantial
number of small entities.
According to the Small Business Administration, small entities
include small organizations such as independent nonprofit
organizations; small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents; and small businesses (13 CFR 121.201). Small businesses
include manufacturing and mining concerns with fewer than 500
employees, wholesale trade entities with fewer than 100 employees,
retail and service businesses with less than $5 million in annual
sales, general and heavy construction businesses with less than $27.5
million in annual business, special trade contractors doing less than
$11.5 million in annual business, and agricultural businesses with
annual sales less than $750,000. To determine if potential economic
impacts to these small entities are significant, we considered the
types of activities that might trigger regulatory impacts under this
designation as well as types of project modifications that may result.
In general, the term ``significant economic impact'' is meant to apply
to a typical small business firm's business operations.
The Service's current understanding of the requirements under the
RFA, as amended, and following recent court decisions, is that Federal
agencies are only required to evaluate the potential incremental
impacts of rulemaking on those entities directly regulated by the
rulemaking itself, and therefore, not required to evaluate the
potential impacts to indirectly regulated entities. The regulatory
mechanism through which critical habitat protections are realized is
section 7 of the Act, which requires Federal agencies, in consultation
with the Service, to ensure that any action authorized, funded, or
carried by the agency is not likely to adversely modify critical
habitat. Therefore, under these circumstances only Federal action
agencies are directly subject to the specific regulatory requirement
(avoiding destruction and adverse modification) imposed by critical
habitat designation. Under these circumstances, it is our position that
only Federal action agencies will be directly regulated by this
designation. Federal agencies are not small entities, and to this end,
there is no requirement under RFA to evaluate the potential impacts to
entities not directly regulated. Therefore, because no small entities
are directly regulated by this rulemaking, the Service certifies that,
if promulgated, the proposed critical habitat designation will not have
a significant economic impact on a substantial number of small
entities.
In summary, we have considered whether the proposed designation
would result in a significant economic impact on a substantial number
of small entities. For the above reasons and based on currently
available
[[Page 12863]]
information, we certify that, if promulgated, the proposed critical
habitat designation would not have a significant economic impact on a
substantial number of small business entities. Therefore, an initial
regulatory flexibility analysis is not required.
Energy Supply, Distribution, or Use--Executive Order 13211
Executive Order 13211 (Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use) requires
agencies to prepare Statements of Energy Effects when undertaking
certain actions. Based on an analysis of areas included in this
proposal, we do not expect that the designation of critical habitat as
proposed would significantly affect energy supplies, distribution, or
use. Therefore, this action is not a significant energy action, and no
Statement of Energy Effects is required. However, we will further
evaluate this issue as we conduct our economic analysis, and review and
revise this assessment as warranted.
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 would not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute, or regulation
that would impose an enforceable duty upon State, local, or tribal
governments, or the private sector, and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or tribal governments'' with two
exceptions. It excludes ``a condition of Federal assistance.'' It also
excludes ``a duty arising from participation in a voluntary Federal
program,'' unless the regulation ``relates to a then-existing Federal
program under which $500,000,000 or more is provided annually to State,
local, and tribal governments under entitlement authority,'' if the
provision would ``increase the stringency of conditions of assistance''
or ``place caps upon, or otherwise decrease, the Federal Government's
responsibility to provide funding,'' and the State, local, or tribal
governments ``lack authority'' to adjust accordingly. At the time of
enactment, these entitlement programs were: Medicaid; Aid to Families
with Dependent Children work programs; Child Nutrition; Food Stamps;
Social Services Block Grants; Vocational Rehabilitation State Grants;
Foster Care, Adoption Assistance, and Independent Living; Family
Support Welfare Services; and Child Support Enforcement. ``Federal
private sector mandate'' includes a regulation that ``would impose an
enforceable duty upon the private sector, except (i) a condition of
Federal assistance or (ii) a duty arising from participation in a
voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal Government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not destroy or adversely modify critical
habitat under section 7. While non-Federal entities that receive
Federal funding, assistance, or permits, or that otherwise require
approval or authorization from a Federal agency for an action, may be
indirectly impacted by the designation of critical habitat, the legally
binding duty to avoid destruction or adverse modification of critical
habitat rests squarely on the Federal agency. Furthermore, to the
extent that non-Federal entities are indirectly impacted because they
receive Federal assistance or participate in a voluntary Federal aid
program, the Unfunded Mandates Reform Act would not apply, nor would
critical habitat shift the costs of the large entitlement programs
listed above onto State governments.
(2) We do not believe that this rule would significantly or
uniquely affect small governments because the black pinesnake occurs
primarily on Federal and privately owned lands. None of these
government entities fit the definition of ``small governmental
jurisdiction.'' Therefore, a Small Government Agency Plan is not
required. However, we will further evaluate this issue as we conduct
our economic analysis, and review and revise this assessment if
appropriate.
Takings--Executive Order 12630
In accordance with Executive Order 12630 (``Government Actions and
Interference with Constitutionally Protected Private Property
Rights''), we have analyzed the potential takings implications of
designating critical habitat for the black pinesnake in a takings
implications assessment. Based on the best available information, the
takings implications assessment concludes that this designation of
critical habitat the black pinesnake would not pose significant takings
implications. However, we will further evaluate this issue as we
develop our final designation, and review and revise this assessment as
warranted.
Federalism--Executive Order 13132
In accordance with E.O. 13132 (Federalism), this proposed rule does
not have significant Federalism effects. A federalism summary impact
statement is not required. In keeping with Department of the Interior
and Department of Commerce policy, we requested information from, and
coordinated development of this proposed critical habitat designation
with appropriate State resource agencies in Alabama, Louisiana, and
Mississippi. From a federalism perspective, the designation of critical
habitat directly affects only the responsibilities of Federal agencies.
The Act imposes no other duties with respect to critical habitat,
either for States and local governments, or for anyone else. As a
result, the rule does not have substantial direct effects either on the
States, or on the relationship between the national government and the
States, or on the distribution of powers and responsibilities among the
various levels of government. The designation may have some benefit to
these governments because the areas that contain the features essential
to the conservation of the subspecies are more clearly defined, and the
PBFs of the habitat necessary to the conservation of the subspecies are
specifically identified. This information does not alter where and what
federally sponsored activities may occur. However, it may assist these
local governments in long-range planning (because these local
governments no longer have to wait for case-by-case section 7
consultations to occur).
Where State and local governments require approval or authorization
from a Federal agency for actions that may affect critical habitat,
consultation under section 7(a)(2) would be required. While non-Federal
entities that receive Federal funding, assistance, or permits, or that
otherwise require approval or authorization from a Federal agency for
an action, may be indirectly impacted by the designation of critical
habitat, the legally binding duty to avoid destruction or adverse
modification of critical habitat rests squarely on the Federal agency.
Civil Justice Reform--Executive Order 12988
In accordance with Executive Order 12988 (Civil Justice Reform),
the Office of the Solicitor has determined that the rule does not
unduly burden the judicial system and that it meets the requirements of
sections 3(a) and 3(b)(2)
[[Page 12864]]
of the Order. We are proposing to designate critical habitat in
accordance with the provisions of the Act. To assist the public in
understanding the habitat needs of the black pinesnake, this proposed
rule identifies the elements of PBFs essential to the conservation of
the subspecies. The proposed critical habitat units are presented on
maps, and the rule provides several options for the interested public
to obtain more detailed location information, if desired.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This rule does not contain any new collections of information that
require approval by the Office of Management and Budget (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 in connection with designating critical habitat under the Act. We
published a notice outlining our reasons for this determination in the
Federal Register on October 25, 1983 (48 FR 49244). This position was
upheld by the U.S. Court of Appeals for the Ninth Circuit (Douglas
County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S.
1042 (1996)).
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994
(Government-to-Government Relations with Native American Tribal
Governments; 59 FR 22951), Executive Order 13175 (Consultation and
Coordination with Indian Tribal Governments), and the Department of the
Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. In accordance with
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species Act),
we readily acknowledge our responsibilities to work directly with
tribes in developing programs for healthy ecosystems, to acknowledge
that tribal lands are not subject to the same controls as Federal
public lands, to remain sensitive to Indian culture, and to make
information available to tribes.
We have determined that there are no tribal lands that are occupied
by the black pinesnake at the time of listing that contain the features
essential for conservation of the subspecies, and no tribal lands
unoccupied by the black pinesnake that are essential for the
conservation of the subspecies. Therefore, we are not proposing to
designate critical habitat for the black pinesnake on tribal lands.
Clarity of the Rule
We are required by Executive Orders 12866 and 12988 and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in the ADDRESSES section. To
better help us revise the rule, your comments should be as specific as
possible. For example, you should tell us the numbers of the sections
or paragraphs that are unclearly written, which sections or sentences
are too long, the sections where you feel lists or tables would be
useful, etc.
References Cited
A complete list of references cited in this rulemaking is available
on the Internet at https://www.regulations.gov under Docket No. FWS-R4-
ES-2014-0065 and upon request from the Mississippi Field Office (see
FOR FURTHER INFORMATION CONTACT).
Authors
The primary authors of this proposed rule are the staff members of
the Mississippi Field Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Proposed Regulation Promulgation
Accordingly, we propose to amend part 17, subchapter B of chapter
I, title 50 of the Code of Federal Regulations, as set forth below:
PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245, unless otherwise noted.
0
2. In Sec. 17.95, amend paragraph (c) by adding an entry for ``Black
Pinesnake (Pituophis melanoleucus lodingi),'' in the same alphabetical
order that the species appears in the table at Sec. 17.11(h), to read
as follows:
Sec. 17.95 Critical habitat--fish and wildlife.
* * * * *
(c) Reptiles.
* * * * *
Black Pinesnake (Pituophis melanoleucus lodingi)
(1) Critical habitat units are depicted for Forrest, George,
Greene, Harrison, Jones, Marion, Perry, Stone, and Wayne Counties,
Mississippi, and Clarke County, Alabama, on the maps below.
(2) Within these areas, the primary constituent elements of the
physical and biological features essential to the conservation of the
black pinesnake consist of three components:
(i) Tract size and habitat structure. A longleaf pine-dominated
forest maintained by frequent fire, and primarily having the following
characteristics:
(A) Open canopy (<= 70 percent);
(B) Reduced woody mid-story (< 10 percent cover);
(C) Abundant, diverse, native groundcover (at least 40 percent
cover); and
(D) Minimum of 5,000 acres (2,023 hectares) of mostly unfragmented
habitat.
(ii) Refugia sites and topographic features. Naturally burned-out
or rotted-out pine stumps and their associated root systems, in
longleaf pine forests on ridges with elevation of 150 feet (46 meters)
or greater.
(iii) Soils. Deep, sandy, well-drained soils of longleaf pine
forest, characterized by:
(A) No flooding or ponding;
(B) < 15 percent medium and coarse gravel fragments;
(C) > 60 inches (152 centimeters) depth to seasonal high water
table;
(D) > 60 inches (152 centimeters) depth to the hardpan;
(E) Textural components equaling > 30 percent sand and < 35 percent
clay; and
(F) A slope < 15 percent.
[[Page 12865]]
(3) Critical habitat does not include manmade structures (such as
buildings, aqueducts, runways, roads, and other paved areas) and the
land on which they are located existing within the legal boundaries on
the effective date of this rule. In addition, State and Department of
Defense lands, covered under the Camp Shelby INRMP, are also not
considered critical habitat in Unit 3.
(4) Critical habitat map units. Data layers defining map units were
developed from USGS 7.5'quadrangles, and critical habitat units were
then using Universal Transverse Mercator (UTM) Zone 15N coordinates.
The maps in this entry, as modified by any accompanying regulatory
text, establish the boundaries of the critical habitat designation. The
coordinates or plot points or both on which each map is based are
available to the public at the Service's Internet site at https://www.fws.gov/mississippiES/, at https://www.regulations.gov at Docket No.
FWS-R4-ES-2014-0065, and at the field office responsible for this
designation. You may obtain field office location information by
contacting one of the Service regional offices, the addresses of which
are listed at 50 CFR 2.2.
[[Page 12866]]
BILLING CODE 4310-55-P
(5) Note: Index map follows:
[GRAPHIC] [TIFF OMITTED] TP11MR15.000
(6) Unit 1: Ovett--Jones and Wayne Counties, Mississippi.
(i) This unit is located between the Bogue Homo River and Thompson
Creek, is approximately 2.0 mi (3.2 km) northeast of Ovett, and is
mostly within the boundary of the Chickasawhay Ranger District of the
De Soto National Forest. It is located just east of State Highway 15,
west of Salem Road, north of the intersection of State Highway 15 and
County Road 205, and approximately 1.3 mi (2.1 km) south of the
intersection of Freedom Road and Forest Road.
[[Page 12867]]
(ii) Map of Units 1 (Ovett) and 2 (Piney Woods Creek) follows:
[GRAPHIC] [TIFF OMITTED] TP11MR15.001
[[Page 12868]]
(7) Unit 2: Piney Woods Creek--Perry and Wayne Counties,
Mississippi.
(i) This unit is located between Thompson Creek and Piney Woods
Creek, is approximately 4.0 mi (6.4 km) west of Clara, and is mostly
within the boundary of the Chickasawhay Ranger District of the De Soto
National Forest. It is located 2.3 mi (3.7 km) north of the
intersection of Camp Eight Road and Will Best Road, and 0.4 mi (0.6 km)
southeast of the intersection of Clara-Strengthford Road and Clara-
Strengthford Reservoir Road.
(ii) Map of Unit 2 (Piney Woods Creek) is provided at paragraph
(6)(ii) of this entry.
(8) Unit 3: Cypress Creek--Greene, George, Forrest, and Perry
Counties, Mississippi.
(i) This unit is located north of Black Creek (Cypress Creek runs
into part of the unit, but is not a barrier to gene flow), and is
approximately 3.0 mi (4.8 km) east of McLaurin, 1.8 mi (2.9 km) south
of New Augusta, and 4.6 mi (7.4 km) northwest of Benndale. Unit 3 is
mostly within the installation boundary of Camp Shelby on the De Soto
Ranger District of the De Soto National Forest, and is bordered by
State Highways 26 and 57 and U.S. Highways 49 and 98.
[[Page 12869]]
(ii) Map of Units 3 (Cypress Creek) and 4 (Maxie) follows:
[GRAPHIC] [TIFF OMITTED] TP11MR15.002
[[Page 12870]]
(9) Unit 4: Maxie--Forrest, Perry, and Stone Counties, Mississippi.
(i) Subunit 4A--Forrest and Stone Counties, Mississippi. Subunit 4A
is located between Double Branch and U.S. Highway 49 in Forrest and
Stone Counties, Mississippi. It is 0.3 mi (4.8 km) northwest of Bond
and 0.5 mi (0.8 km) southwest of Maxie, and is located mostly within
the boundary of the De Soto Ranger District of the De Soto National
Forest.
(ii) Subunit 4B--Forrest, Perry, and Stone Counties, Mississippi.
Subunit 4B is located between Black Creek and U.S. Highway 49 in
Forrest, Perry, and Stone Counties, Mississippi. It is directly
adjacent to Maxie on the western border, and is located mostly within
the boundary of the De Soto Ranger District of the De Soto National
Forest.
(iii) Map of Unit 4 (Maxie) is provided at paragraph (8)(ii) of
this entry.
(10) Unit 5: Howison--Harrison and Stone Counties, Mississippi.
(i) This unit is located between Tuxachanie Creek and U.S. Highway
49, approximately 0.4 mi (0.6 km) east of Howison and 1.3 mi (2 km)
southeast of McHenry, and is mostly within the boundary of the De Soto
Ranger District of the De Soto National Forest. The unit is bordered on
the northern edge by E. McHenry Road and on the western edge by U.S.
Highway 49 (buffered from the highway by at least 328 ft (100 m)).
[[Page 12871]]
(ii) Map of Unit 5 (Howison) follows:
[GRAPHIC] [TIFF OMITTED] TP11MR15.003
(11) Unit 6: Marion County WMA--Marion County, Mississippi.
(i) This unit is located between the Upper Little Creek and Lower
Little Creek, 7.0 mi (11 km) southeast of Columbia. It is located 0.8
mi (1.3 km) north of State Highway 13, and 2.6 mi (4.2 km) south of
U.S. Highway 98. Approximately half of Unit 6 is within the Marion
County Wildlife Management Area (WMA).
[[Page 12872]]
(ii) Map of Unit 6 (Marion County WMA) follows:
[GRAPHIC] [TIFF OMITTED] TP11MR15.004
(12) Unit 7: Scotch WMA--Clarke County, Alabama.
(i) This unit is bordered by Salitpa Creek to the south, Tallahatta
Creek to the north, and Harris Creek to the west. It is located
approximately 2.7 mi (4.3 km) southeast of Campbell, and approximately
half of the unit is on the Scotch Wildlife Management Area (WMA). Unit
7 is located 1.1 mi (1.8 km) north of the intersection of Old Mill Pond
Road and Reedy Branch Road.
[[Page 12873]]
(ii) Map of Unit 7 (Scotch WMA) follows:
[GRAPHIC] [TIFF OMITTED] TP11MR15.005
(13) Unit 8: Fred T. Stimpson WMA--Clarke County, Alabama.
(i) This unit is located between Sand Hill Creek and the Tombigbee
River, is approximately 2.5 mi (4 km) north of Carlton, and is 1.0 mi
(1.6 km) south of the intersection of County Road 15 and Christian Vall
Road. The southern half of this unit is on the Fred T. Stimpson
Wildlife Management Area (WMA).
[[Page 12874]]
(ii) Map of Unit 8 (Fred T. Stimpson WMA) follows:
[GRAPHIC] [TIFF OMITTED] TP11MR15.006
* * * * *
Dated: January 14, 2015.
Michael J. Bean,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2015-05326 Filed 3-10-15; 8:45 am]
BILLING CODE 4310-55-C